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By Dr. Abiola
Inniss Ph.D. LLM.
International Intellectual Property law and Policy and its attendant
diplomatic protocols and concerns can be considered a very important part of
international relations. The simple explanation is that IP is an essential tool
of economic growth in developed countries and has been so recognized as early
as the 1623 British Statute of Monopolies which was later replaced by the
Statute of Anne, 1710[1].
This central tenet is also enshrined in the United States Constitution Article
1 Section 8, Clause 8[2]on
intellectual property as follows “To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries.” In the Caricom (Caribbean
Community) region, the 1987 Constitution of Haiti [3]at
Article 38, explicitly stipulates that artistic, literary or scientific works
are protected by law, and may be the only Caricom state in which this
protection is embedded in the constitution.
The seriousness with which this branch of regulation has been treated by
some policymakers is a clear acknowledgement of the importance of controlling
the amount, extent of access and, usage of intangibles related to creativity
and technological development. It is also a major aspect of trade negotiations
and over several decades has been hotly debated as to whether its exploitation
benefits developed nations more than developing ones.
The
TRIPS Agreement administered by the World Trade Organization[4]
has been a hotbed of argument on both sides of this contention, and there is
still some resistance to writing its minimal requirements into the domestic
laws in some developing countries. In some cases, countries have acquiesced to
the TRIPs agreement as members of the World Trade Organization (WTO) but refuse
to enact legislation or update laws which reflect the requirements of the TRIPs
agreement. There is in effect a signing on to the agreement but not a signing
in to it. Some developing countries have
adopted just such a stance and continue to avoid the issue of strengthening
intellectual property rights legislation and enforcement whilst managing to
engage in trade and other activities. The issue remains whether these countries
are still able to advance development at a pace that benefits them as a whole
instead of the promulgation of a narrow agenda based on limited views of IP
rights resulting in a balance of power that is detrimental to the country’s
economy. It is in fact the balancing of these very interests at the local and
international levels that has proved daunting to some policymakers.
Some specific difficulties faced by developing countries
in international IP negotiations.
Developing countries have concerns about intellectual
property (IP) negotiations for a number of reasons, including:
(a)
Economic impact:
Developing countries are concerned that stronger IP
protection would
- Drive
up prices
- Allow
foreign interests to benefit from indigenous knowledge and biological
resources
- Limit
growth in developing nations
- Be
an extension of monopolistic practices by multinational companies.
(b)
Access to medicines:
Developing countries are concerned that stronger IP
protection could impede access to medicines. This debate became particularly
fierce during the COVID19 pandemic 2020.
(c) Enforcement
standards:
Developing countries often negotiate agreements with high
levels of IP protection and enforcement standards, but these agreements often
lack concrete provisions on licensing and cooperation.
(d) Political
and Economic tools:
Some argue that developed countries use IP as a political
and economic tool to prevent others from using it.
Other issues in IP negotiations include:
- The
complex relationships between Intellectual Property (IP), Genetic
Resources (GRs), Traditional Knowledge (TK), and Traditional Cultural
Expressions (TCEs).
- The
need for negotiators to have a high degree of substantive expertise.
- The
need for extensive coordination and policy coherence at the national level.
- The
need to protect geographical indications to avoid misleading the public,
and to prevent unfair competition.
As outlined above, the diplomacy of intellectual property is
fraught with issues of politics and economics at individual country and
regional levels. In the case of Caricom, The Revised Treaty of Chaguaramas[5]
which is the legal instrument establishing the Caribbean Community (Caricom),
provides in its Article 66 for the establishment of a regional administration
for intellectual property rights with the exception of copyright, but
governments have been unable to agree on the creation of such a mechanism. It
is clear that conflicting policy interests and lack of political will have
stymied the process to the extent that the only regional activity on
intellectual property over the past decade at minimum has come from the
European Union and other bodies which have created widescale programs to
promote the knowledge and use of intellectual property rights at country levels
in collaboration with Caricom. The difficulty with this is that the agenda of
these international bodies does not take into account local idiosyncrasies and
while the general policy is to encourage the use of local provisions for IP, it
is not necessarily concerned with whether the available resources are adequate
or function in a way that makes it easily accessible or makes sense financially
for those seeking the protections. Indeed, the latter is solely in the purview
of the local policymakers who are often less than enthusiastic about addressing
these issues for reasons previously delineated above.
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