Wither Caribbean Intellectual
Property in 2023?
BY Dr. Abiola Inniss Ph.D. LLM
Executive Director
CAAIPO
It seems endemic
to Caribbean society that policy planning and execution in almost all spheres is
based either on current needs arising from past partially resolved issues, or in
pursuit of world trends such as technological developments which require regulatory
coping strategies, especially in the areas of innovation and technology. It is
not as common for governments in the region to create policies with the
intention of stimulating technological innovation. Most of the time policy
efforts are aimed at bolstering the efforts of small and medium sized
enterprises (SME’s) so that they might contribute to the GDP of the country through
the creation of jobs and perhaps with
incentives where there are some elements of technological innovation present. These
two approaches are quite different and not to be conflated one with the other.
There are few SME’s that are technological startups or innovation-based enterprises,
and this makes the actual contribution of these kinds of businesses negligible
to the national economies as is indicated by the available economic data. This is unhelpful to the growth of technology
and innovation which the Caribbean as a whole desperately needs. The deliberate
promotion and funding of technological development as government policy is a
common approach of developed countries and those moving from lower to middle income
economic status.
The statement released at the conclusion of the forty fourth
regular meeting of the Caricom Heads of Government held from the 15th
-17th February 2023 does not give any hope of a change in approach
at the regional level. There is no mention of investment in the development of
innovation and technology, except in some small part as relates to agriculture,
and even there, the scope is limited and undefined.
The concept of intellectual property is inextricably linked
to creativity and innovation, whether a new idea is patented, new writing or music
copyrighted, an innovation in industry is protected by industrial design, or a
new plant variety extracted by scientific experimentation is restricted from
unauthorized use or replication. It would seem then, that at the regional level
there is little attention to intellectual property coming from a corresponding
lack of enthusiasm about developing innovation and technology.
Article 66 of the Revised Treaty of Chaguaramas, the
instrument which establishes the Caribbean Community and the Caricom Single
Market and Economy, recognizes the importance of Intellectual Property, and
sets out certain requirements for its implementation with the exception of
copyright, though to date, the rapidly aging Patent Cooperation Treaty proposal
remains the only tangible attempt at regional collaboration on any aspect of
IPRs.
It can be argued that the Caricom community is
closely linked to western culture through trade, movement of peoples and the
significant size of the diaspora residing in the United States, the United
Kingdom, and some parts of Europe. As a result, most commonly used technologies
are generally available to regional users. Regional governments at the same
time, seem to continue to focus on subsistence rather than the development of
solutions which can both propel economic growth and provide creative
technological solutions to some of the pressing problems of the region.
The resolution of the regional food security problem is an
example of the need to collaborate on several approaches in order to change the
situation for the better. There are issues with high levels of food importation,
corresponding high costs and the resulting amount and quality of foods
available in some Caricom countries. From the reports of experts in this field,
a combination of increased food production in the region should include
expanded food varieties, as well as the development of weather and pest
resilient crops. It will include water and soil management techniques and more
efficient regional food transport systems. Some of the elements of such an endeavour
like transportation, water and soil management can be resourced from countries
with the experience. However, the development of plant varieties that are hardy
enough to withstand the challenges are an opportunity for local agricultural
scientists to make that significant contribution to the field of knowledge and
to change the shape of things to come.
It ought to be trite
knowledge that intellectual property is critical to such developments, as are
political will and funding, but it is not. While a few Caricom countries have
enacted comprehensive suites of legislation on intellectual property, the
majority of them have only bits and pieces of legislation some of which are old
and outdated, as in the case of Guyana’s Copyright legislation which dates back
to 1956.Notably, Guyana gained independence from Britain in 1966. Trinidad
& Tobago, St Lucia, Antigua and Barbuda, Belize and Barbados are in the
forefront in the enactment of modern Intellectual Property legislation which should
benefit their citizens and potentially contribute to economic growth where
properly utilized.
It is the recognition of the underutilization of IP
resources in the Caribbean which has caused the Intellectual Property Office of
European Union, WIPO, and other organizations to initiate programmes to assist
governments and SME’s in the region with sensitization programmes, technical
assistance, and even policy guidance. Intellectual Property is almost
inextricably linked to economic benefit at both micro and macro levels. Whether
it is an individual or a company IP is presented as a compelling means by which
creativity may be managed for monetary gains making it possible to sustain
current efforts, and to further development and growth across almost all
sectors of economic endeavour.
The formalization of economic
relations in Intellectual property through treaties and conventions may also
allow for greater interactions and controls of what obtains at local levels, with
the promise of reciprocity. For example, signatories to the Berne Convention
for the Protection of Literary and Artistic works agree to copyright protection
for users at the same level in all countries that adopt it. The caveat here is
that mere adoption does not bring the convention into force since legislation
at the local levels must be created or adapted to incorporate the elements of
the convention. IP treaties and conventions are generally not self-executing,
meaning that they must be enacted into law before they become effective.
It is this possibility
of controls and more stringent regulations that has undergirded the reluctance
in some administrations to adopt IP legislation, even though they may be
signatories to major conventions such as the TRIPS Agreement (Trade related Aspects
of Intellectual Property Rights) administered by the WTO.
The argument that TRIPS
allows for local implementation at levels which are workable within economies
seems to have failed to convince some governments. Certainly, the governments
of Guyana in the past two decades have resisted any efforts to make
intellectual -property rights part of the legislative framework despite public
protestations. The discovery and exploitation of some of the world’s largest
oil reserves in Guyana over the past three years has not stimulated new
discussions on the issues of intellectual property even though rapid
development and the growth of other industries require that it be addressed
more urgently than ever before.
The rest of the region continues to take part in programmes
offered by WIPO and EUIPO, hopefully with measurable results. It is left to be
seen whether these approaches can have change making impact on the ways in
which IP is perceived, understood, and implemented at national and regional
levels without the overarching policy thrust at the level of Caricom. For as
long as Article 66 of the Revised Treaty of Chaguaramas is not a priority at
the level of Caricom Heads of Government discourse, there is unlikely to be any
comprehensive approach to IPRs within Caricom which is the only way that
intellectual property rights will become a catalyst in innovation and
technology in the region.
Wither Caribbean IP in 2023? Even the most profound of
guestimates leaves us bereft of answers.
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