Written on 19-Jun-2004 by Fidel A. Captain
Abstract
Knowledge is power, so the greater the knowledge base of any society or nation, the more powerful that society or nation will be. Intellectual property represents the knowledge base of a society; therefore it should be preserved and respected as the most formidable asset of any nation. Citizens of developing nations, such as those in the Caribbean, need to be made aware of the value of their knowledge and their creations, and of the power and economic wealth that lies therein.
As technology continues to propel the world, it is knowledge that drives technology, and it is this knowledge which forms the basis of intellectual property. As such, developing nations, such as those in the Caribbean, need to make their citizens aware of the economic power that lies in their knowledge and in their creations. A research paper discussing what intellectual property is, and why it needs to be protected in developing nations in the new millennium, will raise the awareness of the value of intellectual property and the wealth that can be derived from protecting it.
The intended audience of this paper is primarily Governments, or people who are responsible for shaping policy, in the Caribbean. It is hoped that the issues raised in this paper will stimulate action of some sort, at either the government level or the lower levels of society. At the very least it should stimulate discussion in the Caribbean, at the regional and governmental level, of the value of Intellectual Property. It is also hoped the following will be achieved:
- Governments in the Caribbean will raise awareness of the value of Intellectual Property;
- Governments will introduce, or enact, Intellectual Property legislation within their individual territories, maybe to even set up a patenting and trademark system at the regional level;
- West Indian people will recognize that there is power and economic wealth in the value of their knowledge and their creations;
- West Indian people will copyright their creations, and register valuable trademarks and names.
The paper is divided into five major sections, each section discussing a different aspect of intellectual property as it relates to developing nations and the new millennium. The first three sections say what intellectual property is, why it needs to be protected, and how it has been used by lesser developed nations to help then develop. The fourth section discusses the major intellectual property treaties currently in force, along with the multilateral organizations responsible for administering these treaties. The final section summarizes the foregoing sections and puts forward an argument as to why intellectual property is needed in the new millennium, especially in the developing world.
Many developing countries lose their best minds and their greatest talent to developed nations in Europe and North America. Unless this trend is quickly checked, developing nations will lose their competitive edge in an era driven by technology. It hoped that this paper will motivate the citizens of developing nations, such as those in the Caribbean, to register valuable trademarks and names, copyright their literary and artistic work, and patent their creations; and in so doing increase their wealth by increasing their knowledge base.
What is Intellectual Property and Intellectual Property Rights
As technology continues to propel the world, it is knowledge that drives technology, and it is this knowledge that forms the basis of intellectual property. When knowledge is put to use constructively and creatively, it becomes a valuable asset. It becomes intellectual property, and it has to be protected by law.
Intellectual property refers to creations of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce; and intellectual property rights (IPR) are the rights that have been awarded, by law, to the creators of intellectual work. (WIPO, n.d.)
Intellectual property is divided into two main categories: industrial property and copyright. Industrial property covers, among other things, patents, trademarks, trade secrets, and geographic indicators of source. Copyright, on the other hand, covers literary and artistic works, which include, but is not limited to, photographs, books (fictional and non-fictional), music, plays, film, performing artists and their performances, and computer programs (the source code).
In addition to the two main categories mentioned above, there is a new and emerging category of intellectual property: Sui Generis systems. The word Sui Generis is Latin, meaning of its own kind, and literally means unique. These types of intellectual property are new and emerging, and cover areas such as database protection and integrated circuit design.
Industrial Property
Rights of this type are awarded to companies, or individuals, for their innovations and creations, and it protects them by preventing others from reproducing their creations without their prior knowledge or consent, for a fixed period of time. These creations are usually new and have some commercial value.
Patents
Patents are granted to inventors for their creations (inventions), and prevent unauthorized use of their inventions by granting exclusive rights to the inventor preventing others from using their inventions commercially, for a fixed period of time, without their prior consent.
Trademarks
A trademark is a mark (letter, shape, symbol, or name) that is used to identify a company or its product. They are used by companies in industry to distinguish one company’s product from another, or simply to distinguish one company from another. They also prevent the consumer from getting confused about the producer of a particular product.
Geographic Indicators of Source
Geographic indicators of source are marks (names or symbols) that are used to identify the geographic origin of a product. This type of identification is needed because products from a particular region [in the world] may have peculiar, but valuable properties, and consumers need a way of identifying products from specific regions [on earth].
Industrial Design and Trade secrets
Industrial designs are used to protect the aesthetic aspects of an object (shape, texture, pattern, or color), rather than the technical features, whereas trade secrets are used to protect commercially valuable information about production methods, business plans, clientele, etc.
Copyright
The purpose of copyright is to protect the creators of literary and artistic work from having their work reproduced, recorded, performed publicly, broadcasted, translated, or adapted, without their prior consent, for their lifetime plus an additional fixed period. This right is intrinsic in the work from the time it is created.
Copyright protects the way in which literary and artistic work is expressed, and not the idea that the literary or artistic work is trying to convey. It protects the expression of the idea and not the idea itself.
Rights Related to Copyright
These kinds of rights surround performing artists and their performances, producers of sound recordings and their recordings, and broadcasting organizations and their broadcasts. They are related to copyright, but not copyright.
Sui Generis Systems
This system is used to protect new and unique forms of knowledge, which do not fall under the traditional areas of intellectual property. Databases and the layout of integrated circuits are two of these types of systems.
Why Intellectual Property needs to be protected
It is argued in some circles that if intellectual property is protected in the right way, it can act as a catalyst for economic, social and cultural development, and that protecting intellectual property spurs creativity and facilitates the advancement of technology; while in other circles it is believed that protecting intellectual property stymies creativity and technological advancement.
One way industry benefits from intellectual property protection is by means of the patent system. This system allows a company, in industry, to patent their invention(s), and if the invention is good, its application results in increased sales for that company, hence increased profit for that company, and better economic conditions for the society where that company exists.
Individuals, and the society as a whole, benefit from having intellectual property protected by means of the copyright system. Since only the creators of literary and artistic works can decide how and where their works are distributed and re-used, they benefit financially, and the society is culturally enhanced by their creations.
If intellectual property is too rigidly protected, it can stymie development in the society where it exists. This is because with strict patenting laws even minor development on existing patented work will be prohibited, preventing the product from ever being improved. Even with lax intellectual property laws, individuals and companies can not casually enhance an existing product.
Industrial Property (Patents)
The sole purpose of a business is to make profit, and the patent system provides incentive, not only to businesses, but also to individuals, for them to create, innovate and invent. Industry, and to a lesser extent individuals, benefit financially from patenting their inventions because it prevents others in the same industry from reverse engineering their products and developing similar products using similar technology, and putting them on the market to compete with their products.
Many companies spend millions of dollars on research and development (R & D) trying to make their products better, and often succeed in doing so using creative and ingenious methods. The patent system allows such companies to benefit financially from the ingenuity and creativity of their employees, and to recover the money they spend on R & D.
Copyright
Like the patent system, copyright provides the mechanism which allows the creators of literary and artistic work to benefit financially from their creativity, by having them decide how and where their works are copied and distributed. This often involves the creators of such work signing contracts with publishers, recording studios, and music companies.
Society also benefits because it prevents members in a society from expressing their ideas in exactly the same way. It thus creates a society with diverse literary and artistic expression, even though these expressions might be different expressions of the same idea.
Protecting Intellectual Property
If there was no benefit to be derived from protecting intellectual property, or if the benefits did not heavily outweigh the drawbacks, there would not have been a push for, and ascension to, international agreements relating to intellectual property rights.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is administered by the World Trade Organization (WTO) and has 147 member states; (WTO, n.d.) the Berne Convention for the protection of Literary and Artistic Work, which is administered by the World Intellectual Property Organization (WIPO), has 180 member states, and is one of the specialized agencies of the United Nations system of organizations; (WIPO, n.d.) and the Paris Convention for the Protection of Industrial Property, which is also administered by the WIPO, are all testimony to the fact that intellectual property is beneficial to human kind.
However, nations have to be careful in implementing intellectual property rights, because if IPR systems are too rigid they can hinder, rather than promote economic, social and cultural development. Members of the society, and industries in the society, will be afraid to express ideas similar to those already expressed, and to enhance already patented products. On the other hand, if laws are lax there will be little motivation in the society to create, innovate, and express ideas literarily and artistically.
A careful balance must be struck in developing and implementing IPR policies and systems, and such policies and systems must depend on the particular situation of the country for which they are to be implemented, and also incorporate international ideals on IPR.
IPR and Developing Nations
In all civilized society, whether ancient or modern, man has always sought, for whatever reason, to distinguish himself and his work from those of other men by using distinguishing marks or peculiar features. Pottery used in Ancient Egyptian burial rituals had a distinctive shape and specific markings, while today everyone is familiar with the Coca-Cola bottle’s shape.
The industrial revolution of the eighteenth and nineteenth century caused the Americans and the Europeans to draft laws regarding ownership of things like industrial designs and copyright; and it is these laws, after many revisions and amendments, that are still in use today.
Neither the United Nations (UN) nor the World Trade Organization (WTO), organizations that are responsible for administering the major intellectual property rights treaties today, has a clear definition of developed or developing countries or regions. However, the UN does define Least Developed Countries (LDCs), and there is a general understanding of which countries are developed and which are developing.
According to the United Nations Conference on Trade and Development (UNCTAD), LDCs are countries that have: a low national income, weak human assets, high economic vulnerability, and a population of less than 75 million. (UNCTAD, 2002) There are 48 countries that meet these criteria. The UN also considers Africa, the Americas (North, Central and South excluding the United States and Canada), the Caribbean, Asia (excluding Japan) and Oceania (excluding Australia and New Zealand) developing countries or regions. The United States, Canada, Europe, Japan, Australia, New Zealand and Israel are considered developed, while Eastern Europe and countries of the former USSR are neither developed nor developing. (UNSD, 2004)
A Brief History of Intellectual Property Rights
From a historical perspective, intellectual property rights developed along three main areas: trademarks, patents and copyright. While trademarks have been around in some form or the other for millennia, patents were driven by the industrial revolution of the eighteenth and nineteenth century; and copyright by the invention of the printing press in the middle of the fifteenth century by German, Johannes Guttenberg.
Trademarks
Ancient civilizations such as those in Europe and Africa have always used marks of some sort to indicate either the origin (or creator) of a particular product, or its purpose and use. Letters sent by Kings in Europe bore the King's Great Seal, and pottery made for religious buildings and services in Egypt bore special markings.
The practice of using a mark to indicate the origin of a product continued in Europe throughout the middle ages with bakers marking their bread in England in the thirteenth century, and silversmiths marking their products in the fourteenth century.
It was not until the nineteenth century, in the height of the industrial revolution, that the first trademark laws were passed in Europe and the United States. Legislation was passed in England in 1875, which led to the first trademarks registry in the world in London in 1876; while in the United States, federal trademark legislation was passed in 1870.
Patents
In England, the act of obtaining exclusive rights to one's invention dates back to the fifteenth century, when the British Crown, through letters marked with the King's Great Seal, conferred such rights. This continued until the early eighteenth century when it then became necessary for the inventor (patentee) to give a complete description of how the invention worked.
In the United States, inventors were issued patents by their respective colonial governments up until the constitution in 1787, which then gave "authors and inventors the exclusive right to their respective writings and discoveries." (U.S. Constitution, 1787, as cited from TGIF, 2002) This led to the Patent Act of 1790, and the formation of the US Patent Office in 1802.
The nineteenth century saw the establishment of the UK's Patent Office, which allowed for the issuance of a single UK Patent for all members of the British Commonwealth; and two revisions of the US Patent Act of 1790: one in 1836 and the other in 1870. This century also saw a convention in Paris in 1883 regarding industrial designs, which led to consensus on, among other things, patents, trademarks, industrial designs and utility models, by mostly European countries.
Major revisions to the patent system in the twentieth century occurred in the UK in 1902, and then again in 1977; and in the US in 1952. Also, in the United States, the US Patent Office became the US Patent and Trademark Office in 1975.
Copyright
The Statute of Anne of 1709, which was enacted in England in 1710, is considered the first copyright act in the world, and was written in response to the proliferation of printing that occurred since the invention of the printing press in middle of the fifteenth century by German Johannes Guttenberg. This act introduced two new principles: the author is the owner of his/her work, and the works are protected for a fixed period of time.
In 1790 the United States passed its first Copyright Act, which was provided for in the 1787 constitution, and modeled after England's 1709 Statute of Anne. This act was revised twice in the nineteenth century in 1831 and 1870.
The Berne Convention for the Protection of Literary and Artistic Works of 1886, provided a uniform means of protecting authors throughout Europe and the rest of the world, and vitiated the need for authors to register their works outside their own country. The United States finally acceded to this convention in 1988, but not before more than a hundred years had passed, and there were two major revisions of their own Copyright Act: one in 1909 and the other in 1976.
How IPR has Helped Lesser Developed Countries
The Patent Acts and their subsequent amendments of the eighteenth and nineteenth century undoubtedly helped in the development of the United States and Europe during the years of the industrial revolution. These acts and their revisions allowed the inventors to benefit, for a limited time period, from their creations by preventing others from copying their designs and using them commercially. In addition, after this time period was up the details of the design were made public so that anyone can improve on the design and use it commercially if they so desired.
Copyright acts passed during the years of the industrial revolution protected creators of literary and artistic work while allowing them to benefit financially from their works. Authors were the primary beneficiaries of these acts during this time, until the commercialization of the gramophone in the early twentieth century, which then gave musicians and performing artists a means of recording and distributing their work.
During the period of the industrial revolution in the United States and Europe, most of the countries that are currently defined as developing or least developed by the United Nations fell under imperialist rule, and as such much of the economic benefits that were derived from the patent system were returned to the Empire.
It was not until after the Second World War that countries in East Asia, such as Japan, Taiwan, Korea, and recently India, implemented IPR systems that promoted rapid innovation and the growth of small to medium sized enterprises (SMEs). These nations used weak IPR systems in the form of utility models to "develop their indigenous and innovative capacity." (COIPR, 2002, P. 20)
Utility models are weak patent protection laws. Depending on how they are implemented, they usually allow for protection for a shorter period (12 years in the case of Korea and Taiwan as opposed to 17 years in the United States), and also may allow imitation and reverse engineering. Some utility models may only require the inventor to register the patent and the registering agent will not perform a thorough examination of the novelty of the creation.
It has been suggested that Japan's weak patent system has been critical in stimulating productivity and growth during the period from 1960 to 1993. (COIPR, 2002) This weak IP system, which was based on utility models, has led to "incremental innovation by small enterprises and the absorption and diffusion of technology." (COIPR, 2002, P. 21) Similar weak IP systems based on utility models were in place in Taiwan and Korea between 1960 and 1980, and are believed to have led to rapid technological development and a large technological and innovative base.
The weak IP systems that were in place in Japan, Korea and Taiwan between 1960 and 1980, have led to broad and solid knowledge bases in these societies, and huge economic advancements. The innovative and technological foundations that were laid as a result of the weak IP systems are so strong today that these countries have abandoned them in favor of much stronger IP systems, bringing them in line with the standards that are required by international agreements and treaties. Today, Japan is considered a developed country by the United Nations and the WTO.
IPR and Development
What the East Asian countries of Japan, Taiwan and Korea have shown, is that by implementing weak IP systems tailored to a country's circumstance and particular stage in their development, lesser developed countries can broaden their technological and innovative base while at the same time promoting economic growth. However, with the advent of international treaties such as TRIPS, developing countries can not do exactly as these countries did, instead they must follow a slightly different road, one that caters for their specific needs while taking into account the exact stage in their development, and is in line with all international agreements and treaties regarding intellectual property rights.
The patent system can provide a means of broadening the knowledge base of a society, but must be done in the context of current international agreements and treaties. According to the WIPO Intellectual Property Handbook: Policy, Law and Use (2001), "the patent system provides the framework for the collection, classification, and dissemination of the richest store of technological information in the world today... it contributes to the dissemination of new knowledge ... and ... to the evolution of the technological base of industry." (pg. 167)
IP in the Information Age
The world's first large scale, general purpose, digital computer ENIAC (Electronic Numerator Integrator and Calculator), was built in 1946. These machines (computers) revolutionized the rate at which data could be processed and analyzed accurately, and thrust mankind into the information age.
Since the advent of computers, a lot of the old laws and treaties regarding intellectual property rights had to be revisited. This resulted in these laws being revised or amended, and new ones being derived. This was mainly because computers now allowed for the easy storage, retrieval, and transmission of copyrighted material. New laws also had to be derived to protect integrated circuit (IC) layout and design.
The Berne Convention for the Protection of Literary and Artistic Work (Berne Convention) and the Paris Convention for the Protection of Industrial Property (Paris Convention) are two of the first international treaties regarding intellectual property rights, and were first signed in 1886 and 1883, respectively. Since then, there have been several revisions to both the Berne and Paris Convention, with final amendments to both treaties in 1979.
There have been several other treaties after 1979 regarding intellectual property rights, and most of them refer back to the Berne or Paris Conventions, or both: the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the World Intellectual Property Organization's Copyright Treaty, and the Patent Cooperation Treaty.
International Organizations and Intellectual Property Rights
There are two prominent international intellectual property organizations responsible for negotiating and administering world intellectual property treaties today: the World Intellectual Property Organization (WIPO), and the World Trade Organization (WTO).
The World Intellectual Property Organization
The World Intellectual Property Organization (WIPO) became a specialized agency within the United Nations systems of organizations in 1974 as a result of a 1967 convention. Article 3 of this convention gives the primary objective of the organization as "to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization." (WIPO, n.d.) Its secondary objective is "to ensure administrative cooperation among the Unions." (WIPO, n.d.)
The WIPO administers 23 international treaties dealing with different aspects of IP protection, which are divided into three main categories (WIPO, n.d.):
- Intellectual Property Protection Treaties, which "define internationally agreed basic standards of intellectual property protection in each country" (WIPO, n.d.);
- Global Protection System Treaties, which ensure "that one international registration or filing will have effect in any of the relevant signatory states, hence reducing the cost of making individual applications or filings in all the countries in which the protection is sought for a given intellectual property right" (WIPO, n.d.); and
- Classification Treaties, which "create classification systems that organize information concerning inventions, trademarks and industrial designs into indexed, manageable structures for easy retrieval." (WIPO, n.d.)
The Berne and Paris Conventions, the WIPO Copyright Treaty, and the Patent Cooperation Treaty are all administered by the World Intellectual Property Organization.
The World Trade Organization
The World Trade Organization (WTO) was established in 1995 as a result of the Uruguay round of negotiations (1986 - 1994), and is the successor to the Global Agreement on Tariffs and Trade (GATT). (WTO, n.d.) Its objective is to help trade flow smoothly, freely, fairly and predictable. It does this, in part, by:
- Administering trade agreements;
- Assisting developing countries in trade policy issues, through technical assistance and training programs; and
- Cooperating with other international organizations. (WTO, n.d.)
The agreements of the WTO primarily cover goods, services and intellectual property (WTO, n.d.):
- The General Agreement on Tariffs and Trade covers goods,
- The General Agreement on Trade in Services covers services, and
- The Agreement on Trade-Related Aspects of Intellectual Property covers intellectual property.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is administered by the World Trade Organization.
WIPO and WTO in the new millennium
The WIPO is responsible for administering the majority of the world's intellectual property rights treaties, and the WTO for administering the most important intellectual property rights treaty, TRIPS. Together, these two organizations will take the world, and its new knowledge based economy, into the new millennium.
The WIPO and WTO, by nature of their multinational nature and framework, will play important roles in intellectual property rights in the new millennium. However, if developing countries that are members of these organizations are to move forward in the new millennium, maximizing the benefits that intellectual property rights have to offer, they will have to be well informed and advised before adopting new or existing treaties, and utilize all of the help, advice and guidance offered by these organizations.
Featured Intellectual Property Conventions, Treaties and Directives
There are several agreements, treaties or conventions regarding intellectual property rights, which are administered by either the WIPO or the WTO. However, this paper will only cover six of them; the ones that are most pertinent to developing nations and will take them through the start of the new millennium.
The Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property (Paris Convention) was signed in Paris, on 20th March, 1883. It was the first multi-national agreement dealing with the protection of industrial property, and as of 22nd April, 2004 has 168 states that are party to it. Since March, 1883 the Convention has had six revisions: in 1900, 1911, 1925, 1934, 1958, and 1967, and one amendment, which was in September 1979. The Paris Convention contains 30 Articles covering patents, industrial property, industrial design, Marks, and trade names. Article 1 (1) of the convention states that parties to the Convention "constitute a Union for the protection of industrial property." Article 1 (2) goes on to define the objects of industrial property as "patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and repression of unfair competition." The other Articles in the Convention define how these objects of industrial property shall be registered and used in the contracting states.
Patent Cooperation Treaty
The Patent Cooperation Treaty (PCT) was concluded at Washington on 19th June, 1970. It was since amended in September, 1979, and modified in February, 1984 and October, 2001. As of 1st April, 2002, there were 115 contracting states. The PCT can only be acceded to by states that are already party to the Paris Convention. This is because the PCT takes the Paris Convention one step further by allowing any resident or national of a contracting state to file one "international" patent application seeking patent protection for an invention simultaneously in each of a large number of countries. (WIPO, n.d.) Article 1 (1) of the 69 Article treaty states that "the States party to this Treaty constitute a Union for cooperation in the filing, searching, and examination, of applications for the protection of inventions, and for rendering special technical services." In addition, Article 1 (2) states that "no provision of this Treaty shall be interpreted as diminishing the rights under the Paris Convention for the Protection of Intellectual Property of any national or resident of any country party to that Convention."
The Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) was signed on 9th September, 1886, by 12 states. It was finally completed in May, 1896, and has since been revised six times: 1908, 1914, 1928, 1948, 1967, and 1971; and amended once in September, 1979.
The Convention consists of 38 Articles, and Special Provisions (6 Articles) regarding developing nations. The general Articles cover, among other things, what works are protected, the criteria to be eligible for protection, the rights guaranteed to authors, the term of protection, and rights regarding translation, reproduction and adaptation.
Article 1 of the Convention states that parties to the Convention "constitute a Union for the protection of the rights of authors in their literary and artistic works." Article 2 (1) goes on to define literary and artistic works as including "every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books... and other writings; ... musical compositions; ... cinematographic works...; works of drawing, painting, architecture, sculpture, ...; photographic works...; works of the applied art; ..."
Article 2 (3) states that "translations, adaptations, arrangements of music and other alterations of literary or artistic work shall be protected as original works without prejudice to the copyright in the original work." In addition, Article 2 (6) states that "the works mentioned... shall enjoy protection in all countries of the Union...", and Article 7 (1) that "the term of protection... shall be the life of the author and 50 years after his death."
WIPO Copyright Treaty
The WIPO Copyright Treaty (WCT) was adopted in Geneva on 20th December, 1996, and as of 24th March, 2004, 46 states are party to the treaty. The treaty consists of 25 Articles and is based solely on the Berne Convention. Article 1 (1) states that "this treaty shall not have any connections with treaties other than the Berne Convention...", and Article 1 (2) states "nothing in this treaty shall derogate from existing obligations that Contracting Parties have to each other under the Berne Convention..." In addition, Article 1 (4) states that "Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention."
This treaty covers some areas not covered in the Berne Convention and is line with current technological trends and practices. It sets the rules regarding what aspects of these trends and practices are copyrightable: "computer programs are protected as literary works..." (Article 4), and "compilations of data or other material, in any form, which by reason of their selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself..." (Article 5) Articles 6 and 7 of the treaty state the rights of authors with regards to distribution and rental of their work, respectively; and Article 12 deals with electronic (digital) rights management.
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was negotiated as part of the 1986 - 94 Uruguay Round, and came into effect on 1st January, 1995. It applies to all 147 member states of the WTO.
TRIPS is a comprehensive agreement covering the trade related aspects of intellectual property, and also provides a framework for the enforcement of intellectual property rights and for dispute prevention and settlement. Within the context of the agreement, Article 1 (2) states that "intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II." This includes copyright and related rights, trademarks, geographical indications, industrial designs, patents, integrated circuit layout-designs and protection of undisclosed information. (WTO, n.d.)
TRIPS establishes minimum standards for intellectual property protection within member states, and leaves up to the member states to determine how they are going to implement the various aspects of the agreement: "...Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice" (Article 1 (1))
Parties to the TRIPS agreement (members of the WTO), must also be party to the Paris, Berne, and other conventions/treaties. Article 2 (1) states that "...Members shall comply with Articles 1 through 12, and Article 19 of the Paris Convention (1967)", and Article 9 (1) that "Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto." In addition, Article 2 (2) states that nothing in Parts I to IV of the TRIPS agreement shall "derogate from existing obligations that Members may have to each other under the Paris Convention, Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits."
The European Union's Database Directive
The European Union's Database Directive (EU Database Directive) was adopted by the European Parliament and the Council of the European Union on 11th March, 1996, and it applies to all member states of the European Union.
The EU Database Directive "concerns the legal protection of databases in any form." (Article 1 (1)) The term database is defined in Article 1 (2) as meaning "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means."
This directive differs from most other treaties regarding intellectual property rights in that it provides a sui generis right to the maker of the database. Article 7 (1) provides this right: "Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database."
Article 10 of the directive says that the sui generis right provided for in Article 7 expires 15 years after the first of January of the year following the date of completion of the making of the database, or when it was first made available to the public. Lawful users of such a database may extract and/or re-utilize insubstantial parts of its contents for any purposes whatsoever, provided he/she does not unreasonable prejudice the legitimate interests of the maker of the database. (Article 8) In addition, substantial changes to the contents of the database will qualify it, at that time, for a new 15 year term of protection. (Article 10 (3)) This means that databases that are regularly updated with new data can be protected indefinitely.
Conventions, Treaties and Directives in the new millennium
The Paris and Berne Conventions have been in force for over one hundred years, and have now become the pillars of intellectual property worldwide. The Paris or Berne Conventions serve as cornerstones for the PCT, WCT and TRIPS, and before prospective members can sign up to these treaties they must first be party to either the Paris or Berne Conventions, or both.
The PCT, WCT and TRIPS will be the most important treaties of the new millennium. The PCT, which is based on the Paris Convention, will play an important role in the simplification of global patent application and filing; the WCT, which is based on the Berne Convention, will be pivotal in enforcing copyright, in all of its forms; and TRIPS, which is based on both the Paris and Berne Conventions, will be a key to the streamlining of the trade resulting from knowledge based good and services.
The EU's Database Directive is the first of its kind in the world, and has potentially far reaching consequences because of the powerful rights it confers to creators of databases who are residents or nationals of the EU. Since it was adopted in 1996, legislators in the US have been pushing for similar laws to protect creators of databases who are residents or nationals of the United States.
The economies of the developed, or industrialized, nations are primarily knowledge based economies. International treaties and conventions will therefore have an important role to play in streamlining the appropriation, dissemination and utilization of intellectual property, the currency of this new economy. They will continue to provide the framework for the exchange of knowledge based goods, products and services in the new millennium.
Intellectual Property and the Internet
The internet has been with us for the last three decades, but it was not until the early 1990s with the advent of the World Wide Web (web) along with the web browser, and the increasing popularity of the personal computer, that the internet gained its notoriety and ubiquity. Since then there has been an information revolution, where everything that can be digitized is available on the web, and the birth of a new industry: e-commerce, where goods and services are bought and sold on the web.
Copyright
Because copyrighted material can be easily converted into digital format, it is widely available on the borderless World Wide Web. The type of material available ranges from books to software, and poses a serious threat to creators of literary and artistic work.
The purpose of copyright is twofold: to give creators of literary and artistic works sole rights to their works, and to encourage diversity in literary and artistic works. In so doing the creators get remuneration for their work and the cultural landscape of a society is enhanced. All of this is now threatened because of the ubiquitous nature of the web, where a creator's work can be easily reproduced and made available to anyone in the world via a website, with no monetary reward for the creator. Although websites such as Amazon.com sell books online, allowing authors to gain monetarily through the sale of their books, other forms of copyrighted material, such as music, are still freely available online.
In order to protect the owners of copyrighted material in the digital domain, some states are now moving towards using electronic (digital) rights management information, which is provided for in the WCT. This type of information is information "...which identifies the work, the author of the work, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information..." (WCT, 1996, Article 12 (2)) The WCT makes it illegal to circumvent such measures, or to distribute material in which its electronic (digital) rights management information has been altered or removed. (Article 12) The WCT leaves it up to the Contracting Parties to enact legislation enforcing these rights within their states. (Article 14) The US has done so via the 1998 Digital Millennium Copyright Act (DMCA), and the European Union via the 2001 EU Copyright Directive.
Trademarks
Trademarks are used to identify a company or its product, distinguishing it from the competitor's product. The company's name followed by .com usually signals a web presence, and can be, in some instances, a trademark of its own. With the advent of e-commerce, new types of businesses have emerged, some of which exist only on the internet: Amazon, EBay, Yahoo! and Google. The names of these companies are synonymous with certain types of goods and services only available via the internet, and are arguably trademarks themselves. However, the names of these companies are also domain names and raise the question of whether domain names should be protected as trademarks, and the extent to which they should be protected.
In August 1999, the Internet Corporation for Assigned Names and Numbers (ICANN) adopted a Uniform Domain Name Dispute Resolution Policy (UDRP), which was based on the recommendations of the Report of the first WIPO Internet Domain Name Process. This policy allowed for the resolution of disputes arising out of bad faith domain name registration (cyber squatting). (WIPO, 2002) The realization was that domain names, in certain instances, are comparable to trademarks and warranted protection as such.
The Internet and Developing Nations
The internet offers two main opportunities to citizens of developing nations: a resource tool, and a market for their products. The internet is a great resource tool because of the plethora of the information that is available on it, copyrighted or not. It also makes available an international marketplace for intellectual and other local products. However, these opportunities are only available to the few citizens of these nations who can afford access to computers and the internet, and know how to use them.
Although there is a wealth of information that is available on the internet, much of the information that is needed to increase the knowledge base of developing nations, such as the results of scientific research or scientific journals, are often only available on a pay-per-use system. This puts them out of the reach of most citizens in developing nations, denying them a great and precious source of knowledge.
The internet offers the few citizens of the developing world who have access to it, a global marketplace for their often new and innovative ideas and products. It also offers them a means of marketing aspects of their culture, and cultural products, to the entire world. Many governments of developing nations are now beginning to use the internet to promote their country's culture, uniqueness, or as a tourist destination.
If developing nations are to truly exploit the power and potential of the internet, their governments will have to make it more readily available to their citizens. What some Caribbean nations are already doing is exempting computers and computer related products from any sort of taxes and duties, thus reducing the cost of computers encouraging their citizens to purchase them. What governments can also do is to promote free training programs that will teach members of their public service how to use computers and the internet.
Why IPR is necessary in developing nations in the new millennium
The world we are living in is changing rapidly, and it is technology that is propelling this change. It is knowledge that drives technology, and it is knowledge, in the form of intellectual property, that is the currency in this new global economy; so if developing nations are going to be able to effectively compete, they are going to have to broaden their knowledge base, and be party to multinational agreements on intellectual property.
History has shown that intellectual property systems, if implemented in the correct way, foster the cultural and technological advancement of a society. It has also shown that the individual intellectual property systems of separate states can not exist in isolation. They must exist within the framework of some sort of multinational agreement(s), which makes it easier to trade in intellectual property related goods and services, and to resolve disputes that may arise as a result of such trade.
Developing countries, while promoting intellectual property systems that are tailored to their nation’s specific needs, will have to operate within the framework of multinational agreements if they are going to be able to successfully trade in intellectual property related goods and services.
To this end, they will have to become party to the Paris and Berne conventions, PCT, WCT, and TRIPS. To compete in the global economy of the new millennium developing countries will also have to broaden their knowledge base, and one way they can do this is by developing solid educational systems in which innovation and creativity is cultivated, nurtured, and rewarded from a tender age. One idea put forward by the WIPO (2001), in their Intellectual Property Handbook, is the use of national science fairs (youth science and invention contests) to promote scientific and innovative work among young people; and the encouragement of inventors by public recognition in the form of non-material rewards such as medals and diplomas. (pg. 168) The WIPO also encourages publicly financed loans, grants and research contracts for the development of certain inventions and creations; reduced fees for patent and trademark applications; and reduced taxes for licensed patents and know-how. (pg. 167)
The governments of developing countries will definitely have an important role to play in stimulating the scientific and cultural minds of their respective societies, and having their locals profit from it. Fairs, exhibitions and festivals promoted by governments are excellent ways of stimulating local scientific and creative talent, and promoting these talents to both the local and international community. In addition, government awards in the form of medals for outstanding contributions to the local scientific and cultural community can also serve as a stimulus for scientific and cultural innovation.
Conclusion
Intellectual property rights are necessary in developing nations in the new millennium to allow them to effectively compete in the new international marketplace; one that trades in intellectual property goods and services. However, the intellectual property laws that are put in place by these countries will have to be done in an international context; one that takes into account international conventions, treaties and agreements. They will have to be party the Paris and Berne Conventions, PCT, WCT, and TRIPS.
References
Agreement on Trade-Related Aspects of Intellectual Property Rights (Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994). Retrieved from the World Wide Web on June 3, 2004: http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm
Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, completed at PARIS on May 4, 1896, revised at BERLIN on November 13, 1908, completed at BERNE on March 20, 1914, revised at ROME on June 2, 1928, at BRUSSELS on June 26, 1948, at STOCKHOLM on July 14, 1967, and at PARIS on July 24, 1971, and amended on September 28, 1979. Retrieved from the World Wide Web on June 3, 2004: http://wipo.int/clea/docs/en/wo/wo001en.htm
Commission on Intellectual Property Rights (2002). Integrating Intellectual Property Rights and Development Policy. Report of the Commission on Intellectual Property Rights, London
Council & European Parliament (1996). Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. Commission of the European Communities
Paris Convention for the Protection of Industrial Property of March 20, 1883, as revised at Brussels on December 14, 1900, at Washington on June 2, 1911, at the Hague on November 6, 1925, at London on June 2, 1934, at Lisbon on October 31, 1958, and at Stockholm on July 14, 1967 and as amended on September 28, 1979. Retrieved from the World Wide Web on June 3, 2004: http://wipo.int/clea/docs/en/wo/wo020en.htm
Patent Cooperation Treaty Done at Washington on June 19, 1970, amended on September 28, 1979, modified on February 3, 1984, and October 3, 2001. Retrieved from the World Wide Web on June 7, 2004: http://wipo.int/pct/en/texts/articles/atoc.htm
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