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Intellectual Property: What it is and why it needs to be protected in developing nations in the new millennium - IPR and Developing Nations

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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)