The CCJ as a Court of First instance for Intellectual Property; revisiting the idea.

By Abiola Inniss

               In January 2010 this column first proposed the idea of the CCJ as a court of First instance for intellectual property (IP) matters. In the years following its publication, there has been a little movement in the area of IP in the Caribbean including the common usage of the term Caribbean Intellectual Property which was also introduced through this column. There has been some growing attention to IP and some movement at the level of Caricom to create a Caribbean Patent Convention with the intention of harmonizing the Patent laws in those Caricom countries which become signatories to it. There are still some areas which remain unclear such as how disputes will be resolved quickly and efficiently and whether there would or should be a choice of forum for disputing parties.

          It was the conclusion of this column in 2009 after considerable research, that there needed to be a dispute resolution forum which would handle IP matters outside the local jurisdictions and within the context of a legal and regulatory framework for Caribbean Intellectual Property, and which would provide expert and swift adjudication on matters before it.  Following is the text of the article as published with CaribbeanNetnews, the predecessor of CaribbeannewsNow, in January of 2010.

                      Caribbean Intellectual Property: The CCJ as a court of First Instance

           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  

                       Some notes on the proposed Caribbean Patent Convention and Regional stasis

 

 By Abiola Inniss

             The creation of the Caribbean Patent Convention under the auspices of Caricom is a long awaited and most welcome development towards the harmonization of intellectual property laws in the region. Even more importantly, it is an indication that Caricom leadership has at long last, after a lengthy period of stagnation and indeterminacy, finally decided to engage the process of thought and action necessary for the promulgation of a legal and regulatory framework for Caribbean Intellectual Property. Perhaps cocktails are in order, but for whom? Should Caricom nationals celebrate in anticipation of the realization of a substantial catalyst for innovation and trade? Should international firms with an eye on the region rub their hands in glee? Should those who have publicly pressed for action on intellectual property rights breathe a sigh of relief? 

          Whether one takes the view that stronger or weaker IP rights are more beneficial to developing countries (and there are many scholarly investigations to support either supposition), it is almost universally accepted that the value of IP continues to grow exponentially. Patents are recognizable as both legal protection and value creating, a fact upon which Patent trolls capitalize to great benefit. However, where an industrial product was once recognized as a composite of physical parts and components, it is now better identified as a composite of IP Rights which are often combinations of copyright , patents, industrial designs and even trade secrets; one could even add traditional knowledge into the mix for good measure without creating waves. The ways in which international firms treat with research and development and intellectual property have also evolved from a system in which research and development (R&D) were the first considerations and IP came after almost as a by-product. A paradigm shift in the way that firms operate brought about in large part by cyber-economics, has seen firms first creating an IP portfolio and then pursuing R&D to suit it. While analyses of patent filings such as that carried out by Patseer on World Innovation and Filing Trends 1995-2015, can give an indication of the levels of research and development taking place within a country or region, they cannot tell the entire story about the production, marketing and sale of the product, and international firms know this.

          One gets the impression that this proposed Caribbean Patent Convention is intended to facilitate local, intra-regional and international momentum in R&D which should in turn translate to real economic activity, productivity and growth. A tall order for a mere standalone part of the IP productivity equation. The developing countries which have made considerable strides in innovation, technology and development have most often used a combination of IP tools to do so and have also had the benefit of selecting the best mechanism for their particular need. Some have found that it was better to use the utility model also known as the petit patent to afford some levels of protection whilst allowing for the adaptation of inventions in industrial processes. Thailand for example, adopted the petit patents or utility model in 1999 and has since reaped the benefits of this approach from massive advances in research, innovations and technological developments.

                The questions must therefore be asked, “What are the economic and public policy approaches of Caricom to research and development, technology and innovations, and Foreign Direct Investments? Surely regional governance must be aware of the requirements of firms that seek to create modern IP portfolios from which research and development flow? Is there no recognition that while innovations can and should be endogenous, funding and technological knowledge are most often sourced internationally, therefore pressing the need to meet the requirements of international investors?” 

              There is also no question that locals deserve the same treatment and must be encouraged to forge a path of development through research and innovation as far as it is within their abilities to do so. If the region is to succeed in any thrust to join other parts of the developing world as players in the field of science and innovations, then Caricom must facilitate this by the creation of comprehensive intellectual property portfolio which includes, patents, trade-marks, industrial designs and trade secrets regulatory mechanisms   and it must be done expeditiously. In 2015 the region is way behind the rest of the developing world, and it is little comfort to learn of any marche `a petits pas on the way to economic, scientific and technological growth. Caricom must marshal all of the intellectual and physical resources available to it regionally and internationally in order to develop a viable IP plan, and fast. There will be no cocktails at this end anytime soon. A patent does not an IP portfolio make!           

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                                            Reparations or innovations; wither Caricom?

By Abiola Inniss

                     The Caricom Secretariat has undertaken the hugely expensive and expansive task of establishing a commission and committees in eight of its member states under the instruction of the Heads of Government, for the purpose of seeking reparations for former Colonial domination. According to the Caricom Secretariat the commission will establish a moral, legal and ethical case for the payment of reparations for native genocide, the transatlantic slave trade, and the chattel slavery system. This they claim is a serious undertaking from which Caricom will not waver, further the discussions must take place within the spirit of diplomacy, decency, and morally uplifting conversation. The most telling phrases which speak of the policy on this matter may be found at Caricom.org and is as follows “The Commission recognized that Caribbean youth are among those most disenfranchised and denigrated by the colonial legacy that racially profiles and oppresses them as descendants of the enslaved, and who have a human right to live in an environment that is supportive of their willingness to contribute positively to humanity “ and “The Commission noted that Caribbean societies also experienced the genocide of the native population, which was also declared a crime against humanity by the United Nations. The victims of these crimes and their descendants were left in a state of social, psychological, economic and cultural deprivation and disenfranchisement that has ensured their suffering and debilitation today, and from which only reparatory action can alleviate their suffering.”

              There is no doubt that colonization was exploitative and that it created the economic world system in which developed and developing countries (formerly third world) now exist; there is also no doubt that the thrust of this argument being made by Caricom and its Reparations Commission places Caricom’s underdevelopment and lack of creative response to modern challenges squarely at the feet of its Colonial past and shifts the responsibility for self-development to a conditional response from former colonial masters. One wonders for example who is responsible for the Caricom youths’ “human right to live in an environment that is supportive of their willingness to contribute positively to humanity”. The logical and correct answer is that the government and policy makers of Caricom are responsible for the community and environment within which these young people live and wish to make their contribution to humanity, and that it is they who have failed to address the economic and social development of its citizens by the creation of relevant institutions and initiatives which address the ever changing challenges in the age of a dynamic cyber based economic order.

      The Commission has identified six areas in which it posits that the Colonial past is directly responsible for the degenerative state of affairs which are briefly addressed in brackets, these are:

(a) Public Health – in which the chronic diseases diabetes and hypertension are a result of the stresses of slavery ( according to the literature not this is not scientifically proven since Africans who were not exposed to slavery are also affected ,and  the regional health care systems have not been adequately addressed in spite of the tremendous Cuban input),

(b)Education – the Caribbean is plagued by general illiteracy as a result of the Colonial past (the general education systems and the Caribbean Examinations Council programmes need to be addressed continuously, the British are no longer in charge),  

(c) Cultural institutions – the Europeans invested in their own, the Caribbean lags behind (and apparently we cannot conceive, create and maintain our own, Carifesta takes place in fits and starts),

(d) Psychological trauma resulting from more than 400 years of slavery (with which people who were born in the last forty years at minimum can’t be bothered and are more interested in living in the very developed countries that perpetrated the wrongs),

(e) Scientific and technological backwardness (a lack of research and development institutions in the Caribbean and little or no exchanges of information between institutions in the region and those internationally, as well as a lack of investment in the creation of institutions of science and technology. The oldest Mathematics Institute in France dates back to the 1700’s, Caricom has none, Brazil and India have several).

              All of these ills are supposedly to be addressed by reparations for past wrongs and Caricom leaders are indicating through this project that they are incapable of leading the region to a place of economic stability and respectability on the world stage because of past colonial ills. The examples of  Brazil, Singapore, Hong Kong, Taiwan, Indonesia, India, and Rwanda, all of which have had colonial occupation and its attendant issues and other serious problems such as genocide and economic collapse in modern times, and all of which have espoused proactive policies which have led to economic and social development, must lead Caricom citizens to ask whether there is a such dearth of modern scientific intellectual thinking in our region that we must have this level of mendicancy and incompetence foisted upon us.

        The Caricom leaders ought to be held to account for policies which have largely ignored the development of an holistic response to a changing environment, and instead of expending vast sums of money on wishful dead end projects, should invest in the creation of institutes for scientific and technological development as a priority which will ensure the economic, social and cultural development of the region and propel it into a place of economic viability. In this age of science and technology, it is only the development of innovative science and technology programs and projects which are created to meet the needs of Caribbean development that will foster the change needed in the region. Internationally, Caricom needs to project intelligent forward thinking diplomacy which aims to garner opportunities for scientific collaboration and development in all of the much needed areas.

         There can be no righting of any historical wrongs to an adequate level and in a timely manner that can take care of the problems which have resulted from poor policy and mismanagement of the regional affairs. The problems are modern and require modern and timely solutions. The preservation of our history and the development of our region is our responsibility, and the young people of the region (the supposed beneficiaries of the reparations) need to reject the call to take part in any stultifying program of reparations in the place of public policy which engages current scientific knowledge and developmental agendas, and insist on the formation of a Science and Technology Institute with committees in as many countries as possible as a matter of priority. Enough is enough, it is time to change the way in which Caricom leadership is selected,it is time for fresh modern thinking.

Abiola Inniss LLM, ACIArb, is a Ph.D. researcher at Walden University (US) in Law and Public Policy and a graduate of DeMontfort University School of Law (UK). She is a leading analyst and author on Caribbean Intellectual Property and the founder of the Caribbean Law Journal Online.