Indonesia needs to support access to knowledge treaty

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.