Saturday, February 27, 2010

Guyana Law: Attaching the loose link in consumer affairs and protection

By Abiola Inniss LLB, LLM, ACIArb

It is a sore issue in the administration of justice in Guyana that oftentimes laws that have been passed by the National Assembly for the good of the nation are not practically or properly implemented, or simply sit on the shelves in the Parliament Buildings and elsewhere marking time.

This is the very situation in which Guyana’s consumer affairs finds itself with the Consumer Protection Act of 2004. This piece of legislation is undoubtedly and commendably one of the more progressive that has been had in recent times since it proposes practical mechanisms for dealing with the issues of the Guyanese consuming public and takes into consideration the practical needs of the business sector in having matters of dispute resolved in a timely cost effective manner; this is an absolute prerequisite for the development and progression of international business in Guyana and certainly one of the important attractions for securing business in foreign countries.

The proponents of local consumer affairs may well laud this legal instrument, which sets out its function as follows: “An Act to provide for the promotion and protection of consumer interests, in relation to the supply of goods and provision of services in order to ensure the protection of life ,health and safety of consumers and others, the establishment of a Consumer Affairs Commission and for connected purposes.”

It is interesting that the details of the instrument express that certain mechanisms must be implemented in order to give effect to the aspirations of the legislation; the Act further stipulates:

“There is hereby established for the purpose of this Act a Consumer body to be called the Consumer Affairs Commission Affairs (hereinafter in this Act referred to as the Commission)

Subject to subjection (3), the Commission shall –
(a) carry out, at the request of a consumer who has been adversely affected, such investigations in relation to the sale of goods or the provision of services as will enable it to determine whether
the goods were sold or the services were provided in contravention of this Act and thereafter to make such report and recommendations in connection therewith as it thinks fit to the Minister;
(b) carry out, on its own initiative, such other investigations in relation to the availability of
goods of any class or description as it thinks fit and make such report and recommendations as
it thinks fit to the Minister;
(c) promote the development of organisations formed for the protection of the consumer to
ensure that they fulfill the criteria listed in section 4;
(d) collect, compile and analyse information in relation to any trade or business;
(e) provide information to consumers on their rights as consumers and to enable them to make
informed choices;
(f) implement education programmes for the benefit of consumers and vendors or providers;”

Even more importantly the Act institutes the mechanism of alternative dispute resolution in the form of mediation and an arbitral tribunal for consumer affairs as follows:
“Any written contract formed between a consumer and a vendor may include a clause providing for the parties to attempt to settle their disagreement through mediation by the Commission before taking the matter to court.”

And provides for the Arbitral tribunal thus”

“For the purposes of this Act, there is hereby established a Tribunal to be known as the Consumers Fair Trading Tribunal.

“(1) Subject to this Part the Tribunal has all the powers and authority vested in the High Court in the exercise of its civil Jurisdiction.”

One is left to wonder then at the state of consumer affairs in Guyana in the face of relevant modern legislation, which makes use of alternative dispute resolution and requires the establishment of a Tribunal with the powers of the High Court complete with all the practical administrative structures.

It is the common experience of consumers in Guyana that goods and services can be of varying degrees of quality and that there is little redress available to an aggrieved consumer except in the form of letter writing in complaint to one of the local newspapers, and perhaps some complaint to a consumers group which may attempt to agitate in the public eye if it is worth the while.

The consumers’ hotline hosted by the Ministry of Tourism Trade and Commerce serves as information and perhaps a sympathy centre but does not help in the practical resolution of disputes which it can be safely assumed is the central need of consumers who approach the Ministry.

One may also find oneself bereft of explanation on why the Act has been ignored by the Guyana government which enacted it in the first place.

Whatever the explanation or excuse, the fact remains that the consumer is deprived of a right to which she or he is entitled at law simply because the Consumers Act of 2004 has not been implemented. It is even more damaging to the efforts for the promotion of business in Guyana, both international and local that the question of how business disputes may be resolved in a timely and cost effective manner must be answered by referral to the Commercial Court of the Supreme Court of Guyana.

While the Commercial Court cannot be accused of sloth or inefficiency, it is certainly not the most efficient way to resolve all disputes of a business nature. The establishment of the Tribunal and Commission is justified not simply because it is the law but because it makes perfect sense in terms of commerce and industry and affords all consumers with the right, the means of redress.

In the current situation all Guyanese consumers have the right of redress for wrongs and the right to have their matter heard under the law, there is however no means through which this can be done as is required by the 2004 Consumers Act, therein lies the travesty.

With the presentation of the recent annual budget by the Guyana Government, which has been marketed as the largest in the history of Guyana and in which there are several plans for the development of business, both international and local, there needs to be serious attention to the state of consumer affairs.

The Consumer Affairs Commission and Tribunal need to be established as required and to sit, not on paper, but in the actual service of the nation.

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.

Caribbean Intellectual Property: Establishing an arbitral tribunal for the region

By Abiola Inniss, LLB , LLM, ACIarb

The use of arbitration across the Caribbean has been largely within the context of Trade Union disputes and is still something of a novelty in resolving commercial and private disputes in the region (see Rose Marie Belle Antoine, Caribbean Law and Legal Systems, Cavendish, London, 1998). It is interesting to note that more than a decade after the publication of the above mentioned text the situation has registered little change.
This may be the result of a reluctance to embrace new methods of dispute resolution, but is more likely due to the absence of regional mechanisms which are expressly for the purpose of Alternative Dispute Resolution, and which are promoted at the regional level.

The same is true for Guyana, and it is still a mystery that in the face of the difficulties endured in the Guyana legal system with the timely disposal of cases, a mounting backlog, and the tiresome efforts to dispense with the morass, little or no consideration has been given to the use of arbitration.

It is here posited that in developing the legal and regulatory framework for Caribbean Intellectual Property there are three necessary stages. Firstly, there must be the institution of the CCJ as a court of first instance for intellectual property matters with appeals through two other levels to final jurisdiction, this must be accompanied by the creation and /or adoption of concrete IP regulations.

The WIPO rules, though not entirely suited to Caribbean needs, do have some efficacy and may be adjusted accordingly for this purpose. There must be the establishment of an arbitral institution which will deal with the resolution of IP matters using arbitration, mediation and perhaps negotiation; finally, there needs to be aggressive public relations campaigns on the rights and responsibilities of users and producers of Intellectual Property.

The most effective way of establishing such mechanisms is through a CARICOM initiative, and at the peril of imitating the verbiage of the well oiled CARICOM diplomats, it is necessary to state that a ‘CARICOM initiative would enable an holistic implementation of strategic planning and management’, in short CARICOM possesses the material and may source the intellectual resources to create a working arbitral tribunal for Intellectual Property.

It may still be something of a surprise to a discerning citizen of the region that the CSME does not address the issue of modern IP laws and does not propose any mechanism for dealing with it. Intellectual property develops quickly and changes form at a rate faster than can be dealt with by the enactment of legislation , and so must be resolved by means other than legislative dictates.

The World Intellectual Property Organization (WIPO) has a permanent Alternative Dispute Resolution institution which mediates and arbitrates IP matters, especially with regard to domain name disputes. In spite of our relatively underdeveloped state in the field of creation of Internet Communication Technology, it makes sense to establish some means of dealing with these issues following the WIPO arrangement. It may even be possible to arrange for a special unit at WIPO to deal with Caribbean domain dispute issues which takes into consideration our unique circumstances.

The establishment of an arbitral tribunal for Intellectual property matters will ensure that Caribbean nationals have a swift, reliable and consistent means of resolving IP disputes, especially in the areas which are most affected at this time. The issues of music, culture and the other creative arts which are left unprotected are foremost among the IP concerns of the region and in some instances have arisen because of a new awareness of the need to preserve cultural heritage.

This situation has arisen in Jamaica where sections of the Rastafarian community are seeking protection of the use of symbols associated with their heritage and beliefs. An arbitral tribunal would not only be able to hear matters in greater detail than a court of law, but would be able to quickly determine the situation according to the law and to make relevant awards. The CSME would be a most significant beneficiary of such an establishment since there are likely to be considerable numbers of disputes both national and transnational, it is also anticipated that there should be some international investments and interaction in the area of ecommerce, making dispute resolution mechanisms which are of international standard absolutely necessary. Perhaps the most compelling evidence of the efficacy of the workings of an internationally competent arbitral tribunal may come from the WIPO Arbitration Rules as follows:

Time Period for Delivery of the Final Award
Article 63

(a) The arbitration should, wherever reasonably possible, be heard and the proceedings declared closed within not more than nine months after either the delivery of the Statement of Defense or the establishment of the Tribunal, whichever event occurs later. The final award should, wherever reasonably possible, be made within three months thereafter.

(b) If the proceedings are not declared closed within the period of time specified in paragraph (a), the Tribunal shall send the Center a status report on the arbitration, with a copy to each party. It shall send a further status report to the Center, and a copy to each party, at the end of each ensuing period of three months during which the proceedings have not been declared closed.

(c) If the final award is not made within three months after the closure of the proceedings, the Tribunal shall send the Center a written explanation for the delay, with a copy to each party. It shall send a further explanation, and a copy to each party, at the end of each ensuing period of one month until the final award is made.

The example of this rule illustrates the kind of efficiency necessary for the effective management of IP issues and which would be necessary where the Caribbean seeks to institute its own dispute resolution mechanism. Again where there is the necessity to determine jurisdiction and applicable law for the purpose of the arbitration, the rules provide thus:

Laws Applicable to the Substance of the Dispute, the Arbitration and the Arbitration Agreement
Article 59

(a) The Tribunal shall decide the substance of the dispute in accordance with the law or rules of law chosen by the parties. Any designation of the law of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules. Failing a choice by the parties, the Tribunal shall apply the law or rules of law that it determines to be appropriate. In all cases, the Tribunal shall decide having due regard to the terms of any relevant contract and taking into account applicable trade usages. The Tribunal may decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized it to do so.

(b) The law applicable to the arbitration shall be the arbitration law of the place of arbitration, unless the parties have expressly agreed on the application of another arbitration law and such agreement is permitted by the law of the place of arbitration.

(c) An Arbitration Agreement shall be regarded as effective if it conforms to the requirements concerning form, existence, validity and scope of either the law or rules of law applicable in accordance with paragraph (a), or the law applicable in accordance with paragraph (b).

As suggested above it is not necessary in the beginning stages to create a regulatory framework for an arbitral tribunal from scratch since it is possible to draw on already well established mechanisms which have proved their worth. All that is required is the recruitment of the intellectual and material resources to implement the scheme, of course the political acumen and the will to truly develop our region.

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.