Indonesia needs to support access to knowledge treaty<\/p>\n
Mohamad Mova Al Afghani, Jakarta<\/p>\n
In 1997, South Africa imported patented drugs sold in a third
\ncountry and passed a law endorsing the importation of medicine
\nbeing sold in another nation's market with the consent of the
\npatent owner.<\/p>\n
This mechanism is actually permitted under international trade
\nlaw. However, responding to this action, the United States Trade
\nRepresentative (USTR) listed South Africa as a candidate for
\npossible trade sanctions. Not only that, more than forty
\npharmaceutical companies then filed lawsuits in South African
\ncourts challenging the government's action.<\/p>\n
The United States soon joined the EU countries in citing South
\nAfrica for patent discrimination. It was only after a series of
\nmassive protests on Sept. 17, 1999, that the Clinton administration
\nfinally removed South Africa from the special \"301\" USTR watch
\nlist. This was later followed by the pharmaceutical companies
\nunconditionally dropping their lawsuits in a Pretoria court.<\/p>\n
The AIDS Drug case is only the tip of an iceberg of
\nintellectual property law abuse. There has been thousands of
\nincidences of such abuse, including, but not limited to, the
\npatenting of indigenous production methods, such as tempeh
\n(traditional Javanese fermented soybean cake), Basmati rice (rice
\ntraditionally grown in India and Pakistan, but then genetically
\nmodified and subsequently sold in the U.S.), batik textile-making
\nprocesses, and the efforts to prevent the trading of music on the
\ninternet (such as Napster or Kazaa).<\/p>\n
When recently Google extended its Print project to publishing
\nbook excerpts on the net, there was a chorus of complaints
\nalleging that this constituted a form of copyright infringement.
\nPerhaps in the future, you will not be able to file a suit
\nagainst the creation of your clone as your DNA has been
\ncopyrighted by some drug company. To conclude, in every area of
\nintellectual property law -- whether we are talking about
\ncopyright, patents, trade secrets or industrial design -- abuses
\nare rife.<\/p>\n
Intellectual property law has a very awkward philosophy.
\nTangible property is expensive because it is scarce. Mineral
\nwater is sold at a certain price as it contains cost components.
\nThe price of mineral water represents the efforts of workers to
\npurify it and distribute it to the consumers. But ideas and their
\nexpression are not scarce.<\/p>\n
One can argue that the years of research involved should be a
\njustification for the expensive price attached to intellectual
\nproperty. However, many major discoveries were made by chance.
\nTake, for example, Newton and his apple, Marie Curie and
\nradioactivity and Archimedes and his \"eureka\" principle. All of
\nthese are forms of non-process \"intuitive leaps\".<\/p>\n
There may well be examples where lengthy research produces
\ninnovation, but in this age of corporatocracy, the money goes not
\nto the inventor, but to the company.<\/p>\n
My suggestion is that all intellectual property laws should be
\nrevoked and be replaced with the usual private contractual basis.
\nThe creator will still receive money for his work and can still
\nprotect his work through a password, or other means. Even without
\nintellectual property law, the prevailing regulations will still
\nprotect the creator through the Criminal Code (protection from
\nfraud) and competition law (protection from unhealthy business
\npractices). But, of course, this will be unlikely to happen until
\nartificial intelligence is found.<\/p>\n
For the time being, there are only two things that can be done
\nin terms of the law, both in the areas of private law and public
\nlaw.<\/p>\n
In the private law arena, creators and inventors can waive
\ntheir rights and ensure the free dissemination of their products
\n(for example, through a copyright license). On the other hand, in
\nthe public arena, there has to be an umbrella regulation that
\nwill limit the application of intellectual property law and
\nminimize abuses. This umbrella regulation needs to take the form
\nof a treaty to make it binding upon states.<\/p>\n
A global initiative is currently underway to create a treaty
\nthat will limit the application of intellectual property law. It
\nall started in 2004 when Argentine and Brazil submitted a
\ndevelopment agenda to the World Intellectual Property
\nOrganization (WIPO)'s General Assembly.<\/p>\n
Recently, non-governmental institutions have taken over through
\ntheir \"second-track diplomacy\". Last month, experts from several
\ncountries, including the U.S., South Africa, the Netherlands and
\nMalaysia, met in London for a second round of negotiations with a
\nview to drawing up a draft treaty on access to knowledge (A2K).<\/p>\n
The draft A2K treaty currently consists of 12 parts. Article
\n1(1) states that the objective of the treaty is to \"protect and
\nenhance [expand] access to knowledge, and to facilitate the
\ntransfer of technology to developing countries\".<\/p>\n
In the field of copyright law, the draft treaty establishes
\nthat copyright shall not apply to the use of relevant excerpts
\nfor academic purposes, library archives and internet search
\nengines.<\/p>\n
In the area of patents, the draft treaty states that patents
\nshall not be applied to computer programs, methods for treatment
\nof the human or animal body by surgery or therapy and diagnostic
\nmethods practiced on the human or animal body, as well as methods
\nof teaching and education.<\/p>\n
Many provisions in the A2K are beneficial to developing
\ncountries. Article 3-12 provides for the compulsory licensing of
\ncopyrighted work in developing countries. Part 9 provides for the
\ntransfer of technology to developing countries.<\/p>\n
Indonesia is currently trying to attract foreign investment in
\nthe intellectual property sector by conducting a crackdown on
\npiracy. President Susilo Bambang Yudhoyono's visit to Microsoft
\nCEO Bill Gates against the background of this crackdown can be
\nseen as a symbol of Indonesia's commitment to fighting piracy.<\/p>\n
However, it needs to be remembered that the Constitution
\nstates that the promotion of knowledge is an objective of the
\nstate. This promotion of knowledge is the core essence of the
\nAccess to Knowledge Treaty. For that reason, the government
\nshould make the wooing of intellectual property firms a secondary
\npriority, or exclude it from its priority list altogether if this
\nhinders support for the draft A2K.<\/p>\n
The writer (movanet@yahoo.com), a lawyer and a lecturer, is
\ncurrently involved in the free online law information project at
\nhttp:\/\/www.theceli.com.<\/p>",
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