Friday, February 5, 2010

Caribbean Intellectual Property; marketing the ideals of rights and responsibilities

By Abiola Inniss, LLB, LLM, ACIArb

The successes or lack of them in the area of Caribbean intellectual property regulation and enforcement have been attributed to or blamed upon many aspects of the management of Caribbean life and, if the truth be told, the lack of an holistic proactive approach by Caricom itself in creating a legal and regulatory framework for intellectual property.
It is trite knowledge that most Caribbean countries are bound by the WTO-WIPO arrangement on TRIPS which, though not entirely suitable for Caribbean usage, still has some efficacy in them and can arguably be adapted to suit Caribbean conditions. The issue then is the adaptation of these rules to suit our Caribbean conditions and the creation of a legal and regulatory framework that will work for our region from them.

It is with some bemused interest that onlookers note the penchant for patriotic utterances, which are followed by the vigorous flapping of jackets and waving of arms and, inevitably, silence. It is also noteworthy that the World Intellectual Property Organization does not have an office in the Caribbean, that most of its courses and programmes are hosted in Europe and North America and that there is little outreach in the Caribbean area.

While the first excuse almost certain to be proffered by both Caricom and WIPO for these lacunae is money, it simply belies the fact of a half serious approach to the issue of Caribbean IP. There is certainly not enough research done on the ground which details the realities of life and work in specific countries in the region and which bears unbiased, non speculative analysis of the effect of Intellectual Property law.

Conversely, there has been too much said by those who have not likely set foot on Caribbean soil, about the benefits of TRIPS for all developing countries based on a collection of empirical resources, which do not speak to Caribbean conditions but which lump countries into categories and argue about the glories of the TRIPS system and the milk and honey awaiting the implementing states (see Lesser, W. The effects of TRIPS-Mandated Intellectual Property Rights on economic activities in developing countries. Cornell University, 2001; See for opposing views, Correa, Carlos M. - Review of the TRIPS Agreement: Fostering the Transfer of Technology to Developing Countries).

There is no allowance for the lactose intolerant or those who may find the combination unpalatable as is the case with several Caribbean countries. The responsibility therefore lies with Caricom to determine the path for our IP endeavours whilst negotiating with multilateral partners. The WTO-TRIPS arrangement was instituted on a country by country basis and not as a Caricom arrangement, and thus there was no unified regional position on the subject.

Whilst countries have every right to their sovereignty, a piecemeal approach by small states can only lead to disaster and the world is replete with examples of this. There are certain basic rights of intellectual property that are standard internationally and to which all persons should adhere as a moral obligation; for those who wish to argue the substance of moral obligation, it may be posited that these may extend to basic human rights. It is a basic human right to have one’s person protected from violation, whether physical, emotional or psychological, and since intellectual property is derived from the intangible of creativity beginning in the human mind, which becomes a physical reality when the author transfers it to medium which can be seen, heard, touched, smelled or any combination of the above, a violation of anyone’s rights in intellectual property amounts to a violation of the person.

The basic standards of Intellectual property are set out by WIPO as follows:

Works Protected by Copyright

For the purposes of copyright protection, the term “literary and artistic works” is understood to include every original work of authorship, irrespective of its literary or artistic merit. The ideas in the work do not need to be original, but the form of expression must be an original creation of the author. The Berne Convention for the Protection of Literary and Artistic Works (Article 2) states: “The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. The Convention goes on to list the following examples of such works:

* books, pamphlets and other writings;
* lectures, addresses, sermons;
* dramatic or dramatico-musical works;
* choreographic works and entertainments in dumb show;
* musical compositions with or without words;
* cinematographic works to which are assimilated works expressed by a process analogous to cinematography;
* works of drawing, painting, architecture, sculpture, engraving and lithography;
* photographic works, to which are assimilated works expressed by a process analogous to photography;
* works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science;
* translations, adaptations, arrangements of music and other alterations of a literary or artistic work, which are to be protected as original works without prejudice to the copyright in the original work.
* collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations, are to be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”

There are two types of rights under copyright. Economic rights allow the rights owner to derive financial reward from the use of his works by others. Moral rights allow the author to take certain actions to preserve the personal link between himself and the work. (Underlining mine)

Most copyright laws state that the author or rights owner has the right to authorize or prevent certain acts in relation to a work. The rights owner of a work can prohibit or authorize:

* its reproduction in various forms, such as printed publications or sound recordings;
* the distribution of copies;
* its public performance;
* its broadcasting or other communication to the public;
* its translation into other languages;
* its adaptation, such as a novel into a screenplay. (Derived from http://www.wipo.int/)

It is these principles that need to be promoted vigorously across the Caribbean region in the same manner and with the same fervor as the HIV/AIDS issues, and simultaneously with the establishment of the legal and regulatory framework for intellectual property. Individual efforts by countries though useful and necessary, will do little within the context of the Caribbean Single Market and Economy (CSME) ,and in fact will create the problem of users and creators shopping for the most lax or stringent legal system in which to conduct their business; a problem similar to that of forum shopping in private international law.

It is clear that a unified approach to intellectual property is necessary if the Caribbean is to gain international respect; it is also clear that there needs to be immediate movement from WIPO and Caricom in order to begin the change.

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