Sunday, October 6, 2013

Some Notes on Developing Policy and Law in Caribbean Intellectual Property

By Abiola Inniss


In recent years, the Caribbean has been placed under a considerable amount of pressure to comply with international regimen on intellectual property rights.
This is in no small part the result of World Trade Organization requirements that signatory countries to its agreements must also become TRIPS compliant (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights). There is also little question that the pressures result from the movement of a world economy which is now heavily based on the creation and use of technologies that are based on the internet and the digitization of information. In this situation, data becomes a totally pliable commodity and the demand for multimedia products continues to expand at a breathtaking rate. Along with this comes the demand for greater protection of the intangibles which fall into the category of intellectual property.      

Some governments worldwide place prime importance on research, development and innovation as an essential component of national development, prime examples of which may be found in countries such as India, China, Singapore and South Korea, and this list is by no means exhaustive of countries engaging in this kind of activity.

Caribbean countries, on the other hand, have yet to explore the possibilities of research, development and innovation and are on the receiving end of developed technologies and all of the demands and restrictions which come with them. This is an issue which I explored in the WIPO Journal 2012 , and which is wide open for much further discussion and debate. It suffices to say at this point that this lack of attention to an area of endeavor of such great magnitude leaves the region in a position that is weak and disjointed and subject to the whims and fancies of International power brokers in the area.

As a means of compensating for this insecurity, several countries within the region, as elsewhere, have tried to comply with international regimen on intellectual property rights such as the TRIPS agreement. They have also  begun to implement legislation which fits the requirements set out under it to the point of going over and above them in what are called TRIPS plus arrangements. The conception of these countries seems to be that life will become much easier for them in their abilities to access much needed resources and that the international community will deal with them in a more reasonable and lenient manner.

There is no indication, however, that developed countries are at all interested in the issues that concern developing countries to the point of offering any concessions in this area. The constant debates and battles to be heard in negotiations at international fora such as the United Nations and the World Trade Organization are a clear indication of the disinterested attitude.

Developing countries that attempt to comply with these arrangements without careful consideration of the effects on their societies have all but signed their collapse into a chaotic policy and legislative abyss. There are several examples of countries in the developing world which have fallen into this trap, Kenya is one such example. The Kenyan government has led Africa in the area of IPRs and has put laws in place to comply with IP regimen, only to find that its lack of policy planning has caused it to have to revisit its laws and to do patchwork correction. According to a study done by Dr. Patricia Kameri-Mbote[1], there is little indication as yet of the extent to which these laws have contributed to Kenya’s national development.

The creation of legislation which deals with IPRs and compliance with international regimen is a complex task that must be approached from both scientific and social perspectives.The process must also investigate the deep-rooted needs of societies for the development of their human resources, the preservation of culture, and economic and social advancement.

This means that policy frameworks and policy must be developed which come from an understanding of the unique circumstances which envelop each society, and legislation planned to suit. Caribbean countries intent upon legislative compliance must consider whether their short-term goals of appearing to be up to date with international rules will at all benefit the longer term viability of their economic and social development. It cannot be overemphasized that the leadership of Caricom is quintessential in the creation of Caribbean intellectual property policy guidance for its members.





[1]  Dr Kameri-Mbote prepared a study titled Intellectual Property Protection in Africa: An assessment of the status of laws, Research and Policy Analysis on Intellectual Property Rights in Kenya (2005). Retrieved from http://www.ielrc.org/content/w0502.pdf

Wednesday, September 18, 2013

The First Edition of the Caribbean Law Journal Online is available.

Welcome to the first edition of the Caribbean Law Journal Online. Our goal is to facilitate high quality writings that discuss the legal issues of the Caribbean and other parts of the developing world , though we welcome submissions on all legal issues from all over the world. We welcome questions and comments ,please feel free to post them in the discussion forum.
Please visit us here:

Thursday, May 2, 2013

Connecting the Internet to Intellectual Property in the Caribbean

By Abiola Inniss

                   The last decade has seen the emergence of the internet at a pace that has left those who use it scrambling to grasp at the enormity of its existence. Policy makers, rights holders, legislators, content creators, users, producers, and a host of others while caught up in its momentum, are still uncertain about how to treat with the issues of regulating aspects of its usage. Some proponents of regulating the usage of the internet think that the interests of all parties should be balanced as fairly as possible through the use of regulations, while others feel that the free market should dictate its development, letting the chips fall where they might. The issue is not simply one of regulating the usage of the internet by giving rights to those who have or claim entitlement, and making everyone else pay for access to those materials they wish to use, it goes far deeper into complex issues and intersects in a number of areas as it does so.

The field of international intellectual property and its attendant laws and policy issues have effects that reach from the top levels of management of large International companies, to the ordinary woman sitting in an internet café in a Caribbean country, making an internet call to the United States about the next expected remittance, or the offshore internet gaming employee in Antigua or the Bahamas. Issues of international trade law, consumer laws and protection, private international law, international finance and local regulatory provisions (where these exist), all combine to create a convoluted mass through which considerable navigation skills (mostly legal) are needed to make any sense of it.

 Throughout the years there have been a number of attempts to regulate the varied forms of intellectual property usage by the establishment of conventions such as the Berne and Paris Conventions to which signatories agreed to implement laws within their own countries which would reflect the intention of those agreements and give reciprocity among signing nations. The World Trade Organization and the famous TRIPS agreement (Trade Related Aspects of Intellectual Property Rights) to which developing countries are forced to adhere if they wish to benefit from trade agreements with developed countries, is a stark reminder of the financial power of the intangible known as intellectual property rights and the quest for absolute control over it. Caricom and its Caribbean Single Market and Economy secretariat are yet to respond to the growing complexity of International Intellectual Property in any comprehensive manner and to proffer its citizens some form of leadership on the issues. Internet law is as yet underdeveloped in the region and the lack of investment in technological research and development will serve to ensure that no forward movement is made in this direction.
 The WIPO World Intellectual Property Indications Report of 2012 has once again reflected the lack of any significant growth in research and development through patent filings in the Caribbean Region and augments this position. The list of top twenty country offices that reflected increased patent registrations belonged mostly to developed countries with a few from Asia, namely China and India, though Brazil and Mexico did present a notable number of registrations. The reports from past years ( available at www.wipo.int) indicate that there is a direct correlation between research and development and patent filings, both of which have been instigated by the private sector and the governments of the countries listed.

I have discussed this issue at length in the WIPO Journal issue of November 2012 and am still firmly disposed to the position that the responsibility for encouraging innovation and research remains with Caricom and its leaders. Just as CARDI (Caribbean Agricultural Research and Development Institute) was founded, a regional institute for the development of technological innovations needs to be established. No single country within the Caribbean region has the capacity to single handedly tackle the issues of research and development at the level and pace required for any competitive contribution in this field, so that insularity and national pride are of no use to Caribbean citizens in this situation.

 Connecting the internet to intellectual property in the Caribbean requires the political and intellectual will of those in authority to create the opportunities for this to happen by developing research and development collaborative agreements, and by establishing the facilities for the purpose. It goes without saying that this is a matter of great urgency. It is left to be seen how the policy makers will act.

Saturday, October 6, 2012

The Guyana Government and the protection of Copyright laws.

By Abiola Inniss

        Recent weeks have found the Intellectual Property scene in Guyana astir with activity .According to reports the Guyana Government declared that as a matter of policy it would be spending millions of dollars to procure bootlegged British textbooks from an handful of local copy artists with large scale printing facilities. This bold declaration was made, it claimed, as a means of getting the most for the dollar and supposedly for the benefit of the nation. The Government made this declaration in the face of the existing Copyright Act of 1956 (Cap, 74) which states as follows: " In accordance with the preceding subsection, but subject to the following provisions of this Act, the copyright in a work is infringed by any person who, not being the owner of the copyright, and without the licence of the owner thereof, does or authorises another person to do, any of the said acts in relation to the work in the United Kingdom or in any other country to which the relevant provision of this Act extends." This of course includes copying for the purpose of commercial distribution. For interested readers, the entire Act may be found at http://www.wipo.int/wipolex/en/text.jsp?file_id=229365.

 It is important to note that this Act became part of the laws of Guyana after independence in 1966 by way of adoption, and that there have not been any amendments to it by any Governments since then. Even though it may be old law, it is still the law, and this brass faced declaration of disobedience of Guyana's laws by its own Government as a matter of policy, certainly left many informed on-lookers aghast at this new record of economic , diplomatic and legal turpitude that extended this time, beyond Guyana's borders into the waters of International Intellectual Property law and policy. The reaction of the International Publishers was swift, formal diplomacy was engaged, followed by a court order and by Government's admission more talks. The most interesting aspect of these hasty activities is certainly the reliance upon Conventions and Treaties in the hope of finding a remedy in the current situation. The Berne Convention to which Guyana is a signatory and which is an agreement that gives countries reciprocal treatment in intellectual property protection, was cited as a refuge for those seeking relief, as was the Revised Treaty of Chaguaramas. Legal scholarship will however point out that the Berne Convention is not self- executing, meaning that the signatory countries are expected to make the necessary amendments to their national laws in order to accommodate reciprocity.

 The Revised Treaty of Chaguaramas under Article 66 Protection of Intellectual property rights , sets out a series of aspirations that shall be pursued by the COTED (Council for Trade and Economic Development),none of which deigns to legislate IP rights for any of the members of Caricom and certainly does not give protection of any kind to anyone. Countries retain their sovereign right to legislate for themselves and that remains the rule. It has long been the contention of this writer, that this 1956 Act is woefully inadequate for the local and international circumstances in which the country and its citizens now operate, and that there is the need to create legislation that balances the interests of citizens, producers, artists ,resellers and others who may hold title in Intellectual Property Rights. This undertaking cannot constitute a single piece of legislation, but must be a series of laws that deal with modern issues such as indigenous, rights , modern patents, internet laws, private international law, consumer laws and international business law. Some countries within Caricom have endeavoured to do just this, and have managed to create forward looking legislation in this area .Jamaica , Trinidad and St Lucia stand out as examples where this has been done.
  In the present situation, diplomatic filibustering by the British has been very effective in making the Guyana Government scurry for cover under talks and will most likely resolve this issue.
The new economic world order is one in which IP rights are of premium importance and on which the international community will no longer sit back and ignore or accept excuses from so-called developing countries. The current world trends demonstrate that where the Guyana government refuses to adopt policies, laws and actions that would bring it in line with internationally accepted practices, it will be subject to diplomatic sanctions .The outcome of the court case, if there be one, will be awaited with interest, but this matter will certainly be resolved by economic diplomacy. In the meantime, as I have expounded and advocated for years, Guyana must balance the interests of its citizenry with rights and responsibilities in intellectual Property Law, our place in the world is dependent upon it.

Friday, August 31, 2012

The WIPO Journal 2012. International Intellectual Property Law and Policy: Can the Caribbean Region Capitalize on Current Global Developmental Trends in Intellectual Property Rights and Innovation Policies? Inniss.A (2012) 3 W.I.P.O.J., Issue 2 © 2012 Thomson Reuters (Professional) UK Limited

Saturday, June 23, 2012

Considering International IP development trends and economic growth: Wither Caricom?

BY Abiola Inniss LLB,LLM,ACIArb In a recent article published in the WIPO ( World Intellectual Property Organization) Journal of May 2012 , titled "International Intellectual Property law and policy: Can the Caribbean region capitalize on current global developmental trends in IP rights and innovation policies?" this writer examined the WIPO report on the creation and exchange of intellectual property rights (IPRs) among developed and developing countries published in the last quarter of 2011and asked the question " In view of the current trends in innovation and IP development policies worldwide, how might the Caribbean region (Caricom) capitalize on current developments for economic growth?’ This question is of dire importance to the policy makers and citizens of the region who ought to become alarmed at the state of regional lassitude in this critical world economic sphere, especially since new technologies, the exchange of information, and knowledge management continue to develop at an astounding pace. The following paragraphs contain a few summaries of parts of the original published article ( available here http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=412405&recordid=4050)and give additional commentary. In the examination of the The WIPO report for 2011 titled “The changing face of innovation” that focused on the growing trend of creation and exchange of IPRs among both developed and developing countries, it was disclosed that there was a growing demand for IPRs, which was directly related to the growth in innovation especially in the area of knowledge markets based on IP rights, a key element of which is the frequent trading and licensing of IP rights among firms. Royalty and licensing fee revenues internationally, had grown from 2.8 Billion USD in 1970 to 27 Billion in 1990 then to 180 Billion in 2009, far greater than the global GDP and there was also the observation of new market functionaries in the business of Intellectual property rights, such as brokerages and clearinghouses. Firms had specialized in particular areas of endeavor and had increased their levels of innovation and efficiency while increasing controls over which kinds of information were released or kept confidential. Maximized learning in open innovation initiatives to allow for greater creativity was also found to be a significant factor along with the control of information. Other key developments include the patenting of complex technologies, these are defined as technologies that comprise several different areas, each of which is patentable and which may have separate owners. This is especially applicable to communication technologies such as software, optics, audio-visual technology, tablet computers and smart phones, which have given rise to companies creating large portfolios of patent rights to the extent that it is felt that the process of innovation is significantly slowed because of the overburdening of patenting systems. It is proposed that efficient patent institutions are essential to the functioning of this system in order that the growth of innovative systems might not be hampered. The report revealed that several countries established systems and policies that would harness public research for innovation such as the creation of incentives for universities and other public research organizations which create patents and go the further step of commercializing them with the result of an increased rate of patent applications by these institutions. It was also found that filings by Universities and Public Research Organizations under the WIPO Patent Cooperation Treaty increased from minimal in the 1980's to more than 15000 in 2010, which could be attributed to the high income economies such as France, Germany, Japan , the United Kingdom, and the United States, though middle income countries have also made significant contributions to this trend. Among the important developments in this area suggested by this WIPO document were that while the high income countries maintain high levels of investment in research and development (R&D) low and middle income countries have increased their levels of participation and spending by 13 percent between 1993 and 2009. Increased publications in peer-reviewed journals in the relevant fields of science technology with co authorship of an international nature along with a list of patents with inventors from more than one country to be a clear indication of increased international collaboration in those fields. It also concluded that societies benefitted greatly from the collaboration in research and development, which lead to IPR creations and new technologies and concluded that joint IP production was usually the result of research and development alliances. Multilateral firms increasingly locate their research and development facilities within other countries, which has resulted in increased economic activity and growth in middle-income countries. Although, admittedly, it reports that among the difficulties with the data were the difficulties in distinguishing between open innovation strategies and established practices of collaboration (e.g joint marketing) and the inability to trace informal knowledge exchanges such as internal policies within firms and exchanges between firms. The argument is made however, that IP protection can shape creative and innovative policy in a substantial way: "IP protection is a policy initiative that provides incentives for undertaking creative and innovative activity. IP laws enable individuals and organizations to obtain exclusive rights to their inventive and creative output. Ownership of intellectual assets limits the extent to which competitors can free ride on problem-solving and related information, enabling owners to profit from their efforts and addressing the appropriability dilemma at its heart…..IP rights are an elegant means for governments to mobilize market forces to guide innovative and creative activity. They allow decisions on which innovative opportunities to pursue to be taken in a decentralized way. To the extent that individuals and firms operating at the knowledge frontier are best-informed about the likely success of innovative projects, the IP system promotes an efficient allocation of resources for inventive and creative activity" This is all very compelling information that favors the implementation of IP rights, policies and laws that can forge the development of this industry in the Caribbean region and which are critical to the development of the region. The major question is, what is the policy plan of the regional governance organization as regards the development of IP policies , strategies, and a cumulative legal and regulatory framework? There are several economic, political and sociological factors that have stymied the process of IP development in the Caribbean region (dealt with in detail in the WIPO Journal May,2012 here: http://www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?productid=412405&recordid=4050) but the time has surely arrived to craft the policy and legal framework which will allow the Caribbean region to partake in this area of global development In recent years there has been growing recognition of the significance of Indigenous IPR's and IP issues in climate change , while Caribbean governments have discussed these issues, there has been far too much talk and too little effort in garnering expert analyses which could help in the formulation of regional policy. There is the imminent danger of permanent relegation of the region to mindless consumerism of the dictates, policies and technologies of the rest of the productive world, and the eventual loss of any notable identity that excepts sun, sand and sea. Caribbean policy makers need to quickly grasp that Intellectual Property issues cannot be wished away and must be tackled head on right now. Bio data Abiola A.A.Inniss is a leading analyst, researcher and author on Caribbean Intellectual Property and the founder of the Caribbean Law Digest Online. She is a law teacher, alternative dispute resolution practitioner and presenter who has written extensively on Caribbean IP law and other areas of Caribbean law.Among her publications are two books on law, one on Public speaking ,several articles , issue briefs , academic papers and book reviews. She has lectured and presented papers in the Caribbean and the United States of America on Caribbean Intellectual Property, reviewed conference papers and conducted research. She is currently reading for a PhD at Walden University U.S.A.