IP strategy for developing nations<\/p>\n
Mohamad Mova Al 'Afghani, Jakarta<\/p>\n
Makarim Wibisono wrote a pair of interesting articles titled
\nThe role of IPR in developing the economy in this daily on Nov.
\n28th and 29th. These articles were in general intended to explain
\nthe urgency of formulating and promoting international property
\n(IP) strategies in developing states to help develop their
\neconomies. Here, I will try to provide alternative ideas on how
\ndeveloping states should treat the IP regime.<\/p>\n
As international relations are governed by international law,
\nthe first and foremost step developing states concerns the
\nquestion of what determines the existence of \"intellectual
\nproperty rights\" under international law. Is intellectual
\nproperty absolute? Does it constitute a peremptory norm under
\ninternational law? Is the right to intellectual property, for
\nexample, similar to the right to life, the right to speak freely
\nor the right to own property? Certainly, a state can be held
\nguilty under international law if it conducts or condone
\ngenocide, but can a newly independent state such as East Timor be
\nheld guilty if it refuses to admit intellectual property rights
\nwithin its territory?<\/p>\n
If international law is seen as a hierarchy where peremptory
\nnorms are at the apex of the triangle, followed by the UN Charter
\nin the second layer and treaties and customary international law
\nin the third, then intellectual property will obviously not be at
\nthe top of the barrel. The top-most levels should consist of
\ninalienable rights such as the right to life, the right to speak
\nfreely, and other basic human rights. In reality, IP is therefore
\nmade up of a mix of treaty provisions and customary obligations
\nimposed upon states.<\/p>\n
In other words, IP rights are not absolute and unquestionable
\nobligations that states must comply with in the same way as
\nperemptory norms. The IP regime evolved on a voluntary-mutual
\nconsent basis. Hence, states should have \"sovereignty\" to reject
\nits application or to prescribe their own IP standards.<\/p>\n
In theory, states can actually demonstrate their \"persistent
\nobjection\" to the IP regime. In addition to this, TRIPS and other
\nIP instruments will only be binding on states that wish to be
\nbound by them. It is unfortunate that in reality states are
\nforced to adhere to IP -- not as a matter of law-- but simply to
\nfulfill the prerequisites for foreign financial aid or to entice
\nforeign investment.<\/p>\n
The tickling question is, why is it that suddenly this 17th
\ncentury English concept becomes some sort of ultimate truth that
\nevery state must adhere to? My next explanation may be
\noversimplified, but in some ways developed states may be seen as
\nmale and developing states as female. When these \"female\" states
\nare born (by declaring their independence from the colonizing
\npowers, or from the then \"developed\" states), they enter a global
\nstructure that the \"males\" (developed states) have fashioned.<\/p>\n
To this extent, international law and globalization are clear
\nexamples of tyranny. The legal infrastructure in developing
\nstates has often been designed by a minority of developed states,
\nbacked by minority of \"influential\" legal scholars. Law-making
\nis performed in a top-down manner by representatives of states
\nsitting in international institutions. There's nothing that the
\nlegislatures of third-world nations can do but to sit and adopt
\nwhat has been \"agreed\". This, in turn, creates multiple problems.<\/p>\n
The notion of ownership, which covers the area of intellectual
\nproperty, is an example of this. Eastern states value a culture
\nof sharing. Every form of \"ownership\" in their cultures entails
\nsocial functions and is not as individualistic as in Western
\nstates. Conflicts at the grass roots will occur if governments
\nblindly accede to international instruments that prioritize
\nindividualistic values.<\/p>\n
There have been cases in Indonesia where farmers have been
\nconvicted and even sent to jail for distributing certified and
\npatented seeds. The relevant legislation provides up to seven
\nyears in jail and a maximum fine of up to Rp 2.5 billion for
\nthose who distribute, propagate, reproduce, advertise or sell
\nprotected seed varieties without an express license from the
\nregistered owners of the intellectual property (article 71 of Law
\nNo. 29 of 2000).<\/p>\n
Unlike sophisticated, government-subsidized modern farmers in
\ndeveloped states, traditional farmers in Indonesia do not know --
\nand would be surprised to learn -- that distributing and
\npropagating certified and patented seeds is a criminal offense.
\nThey have practiced the art of farming and seed propagation since
\ntime immemorial and are not used to being subjected to legal-
\nformal restrictions.<\/p>\n
Social conflicts are not the only risks that are run when
\nadopting international instruments that are out of line with
\nlocal values. In Indonesia, every law that has anything to do with
\nthe economy will always be overshadowed by Article 33 of the
\nConstitution, and therefore can always be subjected to a test of
\nits constitutionality. Thus, it is always open to the
\nConstitutional Court to determine that the protection of patented
\nseeds is incompatible with the socialistic people's economy
\nenvisaged by the Constitution.<\/p>\n
Thus, rather than spending time and money on educating
\ntraditional farmers about restrictions on propagating seeds, it
\nwould be better for the governments of developing nations to
\nunite and push for more acceptable and culture-friendly IP
\ninstruments at the negotiating table.<\/p>\n
There, officials could explain to their counterparts that
\nthere are certain aspects of IP that are not acceptable. As a
\nconsequence, the regimes that will be adopted in their national
\nlegal systems must give plenty of room for the utilization of
\nthose inventions designed for personal\/non-commercial and
\ncommunal purposes.<\/p>\n
Worries that uncompetitive legislation will drive away foreign
\ninvestment are misplaced. Surveys conducted by risk consultants
\noften show that investors prefer to invest in countries that have
\nreliable judicial and legal systems compare to those that offer
\nincentives in the form of investment-friendly laws, low taxes or
\nlow wage levels. A reliable legal system will only be achieved if
\nthe laws enacted really reflect the will of society, from top to
\nbottom.<\/p>\n
Also, let's not forget that developing nations are primarily
\n\"IP consumers\" while developed nations are \"IP
\nproducers\". The World Bank suggests that most developed countries
\nwould be major beneficiaries of TRIPS in terms of the enhanced
\nvalue of their patents, with the benefit to the U.S. estimated at
\nan annual US$19 billion. According to various reports issued by
\nthe U.S. Department of Commerce, between 1991 and 2001 the net U.S.
\nsurplus of royalties and fees (which mainly relate to IP
\ntransactions) increased from $14 billion to over $22 billion.<\/p>\n
Figures from the World Bank in 1999 indicate a deficit for
\nthe developing countries for which figures are available of $7.5
\nbillion on royalties and license fees. This means that third
\nworld citizens will be in the position of paying for rather than
\nprospering from the regime.<\/p>\n
IP could be beneficial for developing countries if the regime
\nallowed free utilization for educational and humanitarian
\npurposes and gave permission to everyone to modify and modernize
\nprotected products without having to fear accusations of piracy.<\/p>\n
The writer is a lawyer and lecturer and can be reached at
\nmovanet@yahoo.com.<\/p>",
"url": "https:\/\/jawawa.id\/newsitem\/ip-strategy-for-developing-nations-1447893297",
"image": ""
},
"sponsor": "Okusi Associates",
"sponsor_url": "https:\/\/okusiassociates.com"
}