Friday, February 5, 2010

Caribbean Intellectual Property: The CCJ as a court of first instance

By Abiola Inniss LLB, LLM

It is common knowledge that Intellectual Property issues have begun to envelope the Caribbean region at an increasing rate. One can be randomly exposed to discussions on this subject in almost every sphere of Caribbean activity, especially in the market places where the talk ranges from where the product is made, its quality and suitability and most importantly whether it is a copy or fake (in Guyanese the term is ‘caunter’ or ‘kawnter’ according to your taste) as against an original. This is among other things, the result of increasing consumption of goods and services that originate from developed countries and which have strict regulations attached to them under various agreements, alongside goods that come from other developing countries and which are sometimes shamelessly inferior but which are branded as the well known articles.
Most Caribbean countries are members of the World Trade Organisation, which has instituted the Agreement on Trade related Aspects of Intellectual Property (TRIPS) as compulsory for participation in WTO programmes. The minimum requirements for TRIPS include the enactment of laws in each participating country that will ensure that mechanisms are in place to deal with regulation and enforcement of the law. In many Caribbean countries, however, there is a significant problem of enforcement where there has actually been enactment of the law because of the lack of financial and intellectual resources, in others there has been no enactment at all nor even an attempt to formulate such laws(see the Guyana Copyright Bill of 1999). This is further compounded by the issue of basic economics in which many families survive by peddling and otherwise dealing in bootlegged goods, from clothing, to DVDs, to electronic equipment and of course books, especially school texts.

While it is the responsibility of governments to create structural framework for the economic advancement of its citizens , it is posited that the Caribbean Community (CARICOM) holds the responsibility for the creation of a general mechanism which will supervise the regulation of IP laws or/and, provide a regulatory framework for the subject matter within the context of the Caribbean Single Market and Economy; since one ought reasonably to ask the question “How are my IP rights to be protected in a common marketplace where there are no policemen?”

This question has not been adequately or at all addressed by the authors of the CSME who seem to have preferred not to visit the Intellectual Property issue in any but an ad hoc manner. It is useful to look to the European Union model of the regulatory framework, which deals with the creation of regulations on regional issues that are then enacted into the national laws of its member states, though at times these regulations may be directly applicable, meaning that the take effect in every member state upon ratification and without need for enactment in the various states.

Such a system would be most efficacious in the context of the CSME and would enhance the working of the Community as a whole.

This would, however, require longer term planning and, in the consideration of our current regional hesitancy and self deprecating attitudes towards regional establishments, may not be implemented in a timely manner that can benefit the CSME aspirations. The solution to this conundrum can be in the use of the already established Caribbean Court of Justice as a court of first instance for Intellectual property matters, which decisions may become subject to review at two other levels (commonly known as appeals in the regular court system). In its original jurisdiction the Caribbean Court of Justice applies the rules of international law in respect of the interpretation of and application of the Treaty which established the Caribbean Community.

It is intended that the CCJ should operate in much the same manner as an International Tribunal and in some ways similar to the European Court of Justice which is part of the regulatory body mentioned above. While some purists may argue that to task such an august body with the frivol of first instance Intellectual Property matters would be inappropriate or to quote one commentator ‘undignified’, they ought to be reminded firstly that the development of jurisprudence is no trivial task, that it is serious and substantial and that these issues in modern times need to be dealt with swiftly and decisively , and further that it may be safely asserted that the Caribbean citizens would much prefer to get value for money in lieu of ostentation and pretence.

In the case of the European Court of Justice, it is noteworthy that there are regulations on wide ranging matters which affect the European Union citizens including Intellectual Property and that a court of first instance was established in 1988 to ensure greater access to justice and a fairer system of justice dispensation for its citizens. There is now a plethora of case law to be found in the registry of this court. The ECJ is, importantly, a court of final appeal.

For those in love with precedent, there is ample evidence that creating regulations at the level of the Revised Treaty of Chaguaramas through new protocols, will afford the CCJ the jurisdiction to deal with matters of Intellectual Property and provide the basis for the creation of a working legal and regulatory framework for Intellectual Property. This is a relatively simple, cost effective and efficient method of implementing a Caribbean solution to a Caribbean problem.

As always it will be for our citizens to insist on better conditions and to enlighten the leaders to the fact that there are better ways of serving our community.

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