Indonesia needs to support access to knowledge treaty

Mohamad Mova Al Afghani, Jakarta

In 1997, South Africa imported patented drugs sold in a third country and passed a law endorsing the importation of medicine being sold in another nation's market with the consent of the patent owner.

This mechanism is actually permitted under international trade law. However, responding to this action, the United States Trade Representative (USTR) listed South Africa as a candidate for possible trade sanctions. Not only that, more than forty pharmaceutical companies then filed lawsuits in South African courts challenging the government's action.

The United States soon joined the EU countries in citing South Africa for patent discrimination. It was only after a series of massive protests on Sept. 17, 1999, that the Clinton administration finally removed South Africa from the special "301" USTR watch list. This was later followed by the pharmaceutical companies unconditionally dropping their lawsuits in a Pretoria court.

The AIDS Drug case is only the tip of an iceberg of intellectual property law abuse. There has been thousands of incidences of such abuse, including, but not limited to, the patenting of indigenous production methods, such as tempeh (traditional Javanese fermented soybean cake), Basmati rice (rice traditionally grown in India and Pakistan, but then genetically modified and subsequently sold in the U.S.), batik textile-making processes, and the efforts to prevent the trading of music on the internet (such as Napster or Kazaa).

When recently Google extended its Print project to publishing book excerpts on the net, there was a chorus of complaints alleging that this constituted a form of copyright infringement. Perhaps in the future, you will not be able to file a suit against the creation of your clone as your DNA has been copyrighted by some drug company. To conclude, in every area of intellectual property law -- whether we are talking about copyright, patents, trade secrets or industrial design -- abuses are rife.

Intellectual property law has a very awkward philosophy. Tangible property is expensive because it is scarce. Mineral water is sold at a certain price as it contains cost components. The price of mineral water represents the efforts of workers to purify it and distribute it to the consumers. But ideas and their expression are not scarce.

One can argue that the years of research involved should be a justification for the expensive price attached to intellectual property. However, many major discoveries were made by chance. Take, for example, Newton and his apple, Marie Curie and radioactivity and Archimedes and his "eureka" principle. All of these are forms of non-process "intuitive leaps".

There may well be examples where lengthy research produces innovation, but in this age of corporatocracy, the money goes not to the inventor, but to the company.

My suggestion is that all intellectual property laws should be revoked and be replaced with the usual private contractual basis. The creator will still receive money for his work and can still protect his work through a password, or other means. Even without intellectual property law, the prevailing regulations will still protect the creator through the Criminal Code (protection from fraud) and competition law (protection from unhealthy business practices). But, of course, this will be unlikely to happen until artificial intelligence is found.

For the time being, there are only two things that can be done in terms of the law, both in the areas of private law and public law.

In the private law arena, creators and inventors can waive their rights and ensure the free dissemination of their products (for example, through a copyright license). On the other hand, in the public arena, there has to be an umbrella regulation that will limit the application of intellectual property law and minimize abuses. This umbrella regulation needs to take the form of a treaty to make it binding upon states.

A global initiative is currently underway to create a treaty that will limit the application of intellectual property law. It all started in 2004 when Argentine and Brazil submitted a development agenda to the World Intellectual Property Organization (WIPO)'s General Assembly.

Recently, non-governmental institutions have taken over through their "second-track diplomacy". Last month, experts from several countries, including the U.S., South Africa, the Netherlands and Malaysia, met in London for a second round of negotiations with a view to drawing up a draft treaty on access to knowledge (A2K).

The draft A2K treaty currently consists of 12 parts. Article 1(1) states that the objective of the treaty is to "protect and enhance [expand] access to knowledge, and to facilitate the transfer of technology to developing countries".

In the field of copyright law, the draft treaty establishes that copyright shall not apply to the use of relevant excerpts for academic purposes, library archives and internet search engines.

In the area of patents, the draft treaty states that patents shall not be applied to computer programs, methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body, as well as methods of teaching and education.

Many provisions in the A2K are beneficial to developing countries. Article 3-12 provides for the compulsory licensing of copyrighted work in developing countries. Part 9 provides for the transfer of technology to developing countries.

Indonesia is currently trying to attract foreign investment in the intellectual property sector by conducting a crackdown on piracy. President Susilo Bambang Yudhoyono's visit to Microsoft CEO Bill Gates against the background of this crackdown can be seen as a symbol of Indonesia's commitment to fighting piracy.

However, it needs to be remembered that the Constitution states that the promotion of knowledge is an objective of the state. This promotion of knowledge is the core essence of the Access to Knowledge Treaty. For that reason, the government should make the wooing of intellectual property firms a secondary priority, or exclude it from its priority list altogether if this hinders support for the draft A2K.

The writer (movanet@yahoo.com), a lawyer and a lecturer, is currently involved in the free online law information project at http://www.theceli.com.