Copyright and Development

Rami OlwanARC Center of Excellence Creative Industries and

Innovation , Australia Global Meeting on A2K , KL, Malaysia

Outline

• The different meanings of development

• Old development agenda

• Views on intellectual property (copyright) and development

• New development agenda

• The way forward

Questions

• What does development mean?

• What is the relationship between intellectual property (copyright) and development?

• How could intellectual property laws, particularly copyright assist developing countries to achieve development?

• Do developing countries need strong intellectual property (copyright ) laws?

• Why are the old and new development agendas important for the international intellectual property system?

Meanings of Development

• Meanings outside the IP context (economic, social and sustainable development )

• Meanings within the IP context

Meanings Outside IP

• Development is a contested term between scholars, organisations and development experts in developed and developing countries.

• There are different meanings to development and these include:

- Economic development (economic growth and wealth distribution)

- Social development (improving living standards)

- Sustainable development (environmental, economic and social well- being).

Meanings Outside IP

• Development constitutes one of the most important challengesfacing the international community.

• Development has been widely acknowledged in manyinternational conventions and forums (including the UnitedNations Millennium Summit).

• Generally, development encapsulates the improvement ofindividual’s lives through providing them with greater education,skills development, income and employment.

Meanings Within IP

• Diverging views on the meaning of development within the context of IP

• Theories originally formulated in the 1960s, which suggest that a system of intellectual property “western style intellectual property "is a necessary part of the evolution of colonised states from “under-developed” to “developed.

Old Development Agenda

• The international movement of international intellectual property has been from developed to developing countries.

• The first contact of developing countries with the global intellectual property system occurred in the late nineteenth century when few developing countries acceded to the Paris and the Berne Conventions.

• Developing countries were not happy with the international intellectual property system and wanted it to take into account their interests.

Old Development Agenda

• Brazil called for a revision of the Paris Convention to take the economic developmental needs of developing countries into consideration.

• India also called for a revision of the Berne Convention to give wider access to copyrighted materials for poor developing countries.

• An “international copyright crisis” was caused as a result of the debate between developing and developed countries on how the international copyright system could be structured.

• This matter was resolved later in the Berne Appendix (Paris 1971).

The Berne Appendix

Article I

Faculties Open to Developing Countries

(1) Any country regarded as a developing country in conformity with the established

practice of the General Assembly of the United Nations which ratifies or accedes to

this Act, of which this Appendix forms an integral part, and which, having regard to

its economic situation and its social or cultural needs, does not consider itself

immediately in a position to make provision for the protection of all the rights as

provided for in this Act, may, by a notification deposited with the Director General

at the time of depositing its instrument of ratification or accession or, subject to

Article V(1)(c), at any time thereafter, declare that it will avail itself of the faculty

provided for in Article II, or of the faculty provided for in Article III, or of both of

those faculties. It may, instead of availing itself of the faculty provided for in

Article II, make a declaration according to Article V(1)(a).

The Berne Appendix

Article IILimitations on the Right of Translation

(1)

Any country which has declared that it will avail itself of the faculty provided for in this Article

shall be entitled, so far as works published in printed or analogous forms of reproduction are

concerned, to substitute for the exclusive right of translation provided for in Article 8 a

system of non-exclusive and non-transferable licenses, granted by the competent authority

under the following conditions and subject to Article IV.

Article III

Limitation on the Right of Reproduction

(1) Any country which has declared that it will avail itself of the faculty provided for

in this Article shall be entitled to substitute for the exclusive right of reproduction

provided for in Article 9 a system of non-exclusive and non-transferable licenses,

granted by the competent authority under the following conditions and subject to Article IV.

Margret Chon (“IP from below”)

“In the current rule-generating and rule-interpreting environment of

intellectual property globalization, the presumption has been that

intellectual property is good because it promotes economic growth...

Intellectual property can no longer afford to be insular, as if it does

not affect or is not affected by the provision of other global public

goods. Explicit connections must be made between intellectual

property and other global public goods addressing basic

development needs, including food, education as well as the already

highly publicized health care sector.”

James Bessen and Eric Maskin (Balance)

“Intellectual property protections should be limited to achieve a

balance that prevents direct copying but that encourages value-

adding imitation. Sometimes intellectual property policy is described

as balancing the protection of incentives to create ideas against the

benefit to society of disseminating those ideas.”

The Gower Review of IP (2006)

“The economic evidence and, in particular, the history of currentlydeveloped countries suggest that a single one-size-fits-all approach isinappropriate. Stronger IP protection can ultimately reap rewards interms of greater domestic innovation in developing countries and indeveloping countries with sufficient capacity to innovate. However, ithas little impact on innovation in developing countries without thecapacity to innovate, and it may impose additional costs. Given thatdifferent IP regimes are more appropriate at different stages ofdevelopment, it would make sense to allow individual nations tochoose when to strengthen their IP regimes, rather than to seek toenforce a certain perspective.”

Ruth L Gana

“It is important for the modern debate to link intellectual

property laws to the social realities of societies in developing

countries. Not only may this yield more effective approaches to

securing enforcement of intellectual property rights in developing

countries, it is also presents the possibility that western based

intellectual property laws may have some real impacts on industrial

innovative activity in these countries, thus contributing to the

economic welfare of the Third World.”

Joseph E. Stiglitz

“Strengthening intellectual property rights often means raising the it and thus —knowledge—price of a key ingredient into research

is possible that an excessively “strong” intellectual property ”.regime may actually inhibit the pace of innovation

Why Copyright is important?

• The arrival of the digital technologies provides great opportunities for developing countries to access information and to acquire knowledge.

• Copyright protects a wide range of tools, which are vital to the education, health, technical literacy and development of developing countries.

CIPR Report (2002)

“Indeed, it is arguably the case that many poor people in developing

countries have only been able to access certain copyrighted works

through using unauthorized copies available at a fraction of the price

of the genuine original product. We are therefore concerned that an

unintended impact of stronger protection and enforcement of

international copyright rules as required, inter alia, by TRIPS will be

simply to reduce access to knowledge products in developing

countries, with damaging consequences for poor people”.

Consumers International Report (2006)

“Access to educational materials especially in the field of higher

scientific and technical education is crucial for the development of

human resources in order to contribute to the economic progress of

developing countries. Copyright laws are proving to be an

impediment to greater access to knowledge in the public domain”.

Public Domain

• Scholars have stressed the importance of having an open vibrant “commons” or “public domain” for achieving development.

• “A rich public domain and fair access to copyright protected material enhances creativity and the production of new works.”

The International Federation of Library Associations and Institutions.

Voluntarily Mechanisms

• Several intellectual property and internet scholars have stressed the importance of promoting and using voluntarily mechanisms such as CC and FOSS for achieving development within developing countries.

• FOSS should be seriously considered in developing countries as it could bring many opportunities to the region.

New Development Agenda

• The Doha Development Round 2001 • The WIPO Development Agenda 2004• Access to Knowledge Treaty (draft 9 May 2005) • The rise of civil groups in the discussions of the structure of the

international intellectual property system.

The Doha Development Round

• In 14 November 2001, members of the WTO agreed at the DohaMinisterial Conference three texts and these include: i) The Ministerial Declaration, ii) The Decision on Implementation- related Issues and Concerns;

andiii) The Declaration on the TRIPS Agreement on Public Health.

• The Doha Declaration recognize the right of developing countriesunder TRIPS to use to the fullest possible extent the flexibilities

containedunder the agreement to protect public health and promote access tomedicines for all.

WIPO Development Agenda

• Brazil and Argentina submitted the first proposal to establish a development Agenda during WIPO’s General Assembly (27th September to 5th October 2004).

• The proposal was subsequently supported by 12 other developing countries(known as the Friends of Development).

• The WIPO Development Agenda was formally established on 4 October 2004.

• A Committee on Development and Intellectual Property (CDIP) was established to implement the decisions of the Provisional Committee on WIPO and Development Agenda (PCDA).

The WIPO Development Agenda

The PCDA has agreed to a set of 45 “Proposals” covering six clusters of activities. These are:

(a) Technical Assistance and Capacity Building,

(b) Norm-Setting, Flexibilities, Public Policy and Public Knowledge,

(c) Technology Transfer, Information and Communication Technology (ICT) and Access to Knowledge,

(d) Assessments, Evaluation and Impact Studies,

(e) Institutional Matters including Mandate and Governance;

(f) Other issues

The WIPO Development Agenda

• Dr. Kamil Idris former WIPO Director described the Agenda:

- “This is a historic day for the Organization and its member states.

The adoption of the Development Agenda is testimony to the

international community’s commitment to promote the evolution of

an IP system that addresses the needs and concerns of all countries.”

- “This milestone decision is an important and positive step towards

ensuring that the international intellectual property system continues

to serve the public good by encouraging and rewarding innovation

and creativity in a balanced and effective manner.”

Access to Knowledge Treaty

• Part 3 – Provisions Regarding to Copyright and Related Rights Limitations and Exceptions

• Article 3-2 - Provisions Regarding Distance Education

• Article 3-3 - The Rights of Persons with Disabilities

• Article 3-4 - First Sale Doctrine for Library Use

• Article 3-5 – Internet Service Providers

• Article 3-6 – Digital Rights Management and Measures Regarding Circumvention of Technological Protection Measures

• Article 3-7 – Non-Original or Creative Works

• Article 3-8 – Orphan Works

• Article 3-9 - [Retroactive] Extensions of Term of Protection for Copyright and Related Rights

• Requirements When Terms of Protection for Works Protected by Copyright and Related Rights Have Been Previously Extended to Exceed TRIPS Requirements\

• Article 3-11- Works for Which an Author Has Alienated Economic Rights

• Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries

Access to Knowledge Treaty

Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries

(a) Members agree that:

i. In the past quarter of a century, technical progress has changed the ways and means of transmitting information and knowledge;

ii. Developments that have taken place in the field of international period reflect greater freedom of exchanges;

iii. The needs and concerns of the developing countries should be taken into consideration with a view to giving them easier and less costly access to education, science, technology and culture

iv. The Appendix to the Berne Convention has been of limited benefit to developing countries, due to complex procedures, high transaction costs,

limitations on exports and the limited scope of works and uses; and

v. The Appendix to the Berne Convention is not a viable mechanism to promote access to works that are distributed on the Internet.

Access to Knowledge Treaty

Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries(b) A new protocol for access to copyrighted works in developing countries will be developed for compulsory licenses for copyrighted works that will feature:

12

i. Simpler procedures,

ii. Lower transaction costs,

iii. Faster decision-making,

iv. Appropriate scope of works and uses, including for translations in major

languages,

v. Permission to export to other developing countries that have issued compulsory licenses for the same works,

vi. Feasible implementation for works distributed in electronic formats, including over the Internet, or in distance education.

(c) The protocol described in (b) will be set out in the Regulations to this agreement.

General Remarks

• There are some problems with the intellectual property laws in developing countries.

• Intellectual property and its relationship to development, health, food, and education remain poorly understood to most policy makers in developed and developing countries.

• Most intellectual property laws are highly restrictive and do not take into consideration the economic and social conditions of these countries.

• They do not benefit from the flexibilities contained in the international copyright treaties mainly Berne, TRIPS and WCT.

• The copyright laws in developing countries are also out of step with technology and threaten to stifle creativity and innovation.

The Way Forward

• Developing countries have to learn from the Old Development Agenda by formulating new tactics and policies that they could use in the current international debate around intellectual property.

• Developing countries have to be active participants of the New Development Agenda and contribute to making it a reality.

• Developing countries have to rethink their intellectual property laws with a ‘development lens’ to meet their needs and accelerate their economic and social development.

Thank You!

References

- Peter Yu, “A Tale of Two Development Agendas” (2009) 35 Ohio N.U. L. Rev. 465

1349967/papers.cfm?abstract_id=3http://papers.ssrn.com/sol

- WIPO and the Development Agenda

> development/en/agenda/overview.html-http://www.wipo.int/ip<http://www.wipo.int/ipdevelopment/en/agenda/recommendati<

>ons.html

- Margret Chon, Intellectual Property and the Development Divide

(2006) 27 Cordozo Law Review, 2821- 2912