Last week, it was pointed out that the World Intellectual Property Organisation (WIPO) emerged after three intellectual property rights conventions, namely the Paris, Berne and Rome Conventions, were established. The WIPO was created in 1967, more than 80 years after the Paris and Berne Conventions and about six years after the Rome Convention surfaced. The WIPO was created as one of the specialized agencies of the United Nations. It served as the global forum for the development of policy on Intellectual Proterty Rights (IPRs) and the provision of property services. It was also the place where countries could go to pursue cooperation and receive information about IPRs. The ambition of WIPO was to lead the development of a balanced and effective international intellectual property (IP) system that enabled the emergence of innovation and creativity for the benefit of all. It anticipated the voluntary participation of all countries in the Convention. While the mandate of WIPO was global in focus, IPRs did not arise as a global issue until countries tried to market these rights as part of international trade.
Issue of contention
When IPRs emerged as part of the debate on the international trading rules and system, they quickly became an issue of contention between countries with different economic systems and different levels of development. The world in which the debate about IPRs arose was vastly different from the one that exists today. The Socialist bloc still existed, several wars were raging between and within countries, Apartheid reigned supreme in most of Southern Africa, OPEC was a major economic force, the Asian Tigers were not as formidable as they are today and BRICS was not even an idea. Many developing countries were struggling with massive debt burdens while others had barely emerged from colonialism. Within this configuration of the world, very few countries had an interest in decoupling products from the intellectual property that had given rise to them. The idea of a market that was separate for IPRs was too novel for some countries. It was a distraction for others and of little or no consequence for many.
It was in the foregoing context that negotiations under the Uruguay and Doha Rounds of trade negotiations took place. The developed and developing countries did not see eye-to-eye on the need for the set of rules now known as TRIPS. With their focus on the benefits of IPRs, the developed countries had a more structuralist approach to the conflict with the developing countries. One probably could not see it at the time, but TRIPS became possible because developing countries found themselves at a place where, though the majority benefits of IPRs would go to the developed countries, rule-making under the WTO would be democratic. It would not contain the skewed voting power of institutions like the IMF or the World Bank and therefore give them a chance to participate with equal weight in decision-making. Changes to IPRs rules would not be one-sided.
IPRs are the outcome of research and development. Most ideas contained in products, processes, film, drama, music and books had arisen in the more advanced economies of the world. Those countries saw a competitive advantage in trading IPRs. In addition, they felt that they were being cheated out of significant amounts of revenue as a consequence of the failure of other countries to enforce IPRs laws. The acknowledgment of the need for countries to recognize and enforce intellectual property rights eventually made it into the WTO Agreement on Trade Related Aspects of Intellectual Property Rights or TRIPS for short.
TRIPS have sought to harmonize international treatment of certain protections for intellectual property by calling for the establishment of minimum standards in each country. One such IPR is the copyright. Copyright refers to the right of the creator of works of art and culture to make and sell copies of his or her works, the right to create derivative works or the right to perform and display their works publicly. Copyrights also enable the creator of the works to prevent someone from reproducing the work without his or her permission.
In other words, it gives the creator of the works a chance to create a market, domestic and international, for his or her works. The success of that market depends on the extent to which excludability and rivalry could be fostered. Those capabilities depend on what other countries do.
It is a real challenge to create and sustain a market when others at home or abroad can undermine that effort. Two examples would suffice, one on copyrights and one on patents. TRIPS try to reduce that burden by calling on countries to provide copyright protection in their laws that would, in essence, help a market to survive and prosper. Countries are required to change their laws and protect the rights of persons who create original artistic and cultural works for at least 50 years. Countries with stronger copyrights laws are allowed to retain the major provisions of those laws.
For example, a country like the United States of America (USA) has copyrights laws that protect original work for up to 70 years after the life of the creator. In addition, the copyright protection should be granted automatically.
This latter point is an important deviation from the Berne Convention which requires, as part of the recognition of the right, the work to be registered to be protected. Quite often it is not clear what should be covered, as copyrights work under TRIPS. It is important to note that computer programs qualify for coverage under the copyrights laws of a country.
Another right that is protected under TRIPS is that pertaining to inventions. Patents created for inventions in all fields must be recognized in national laws as well. The laws must protect the patent for at least 20 years. The obligations imposed on countries prevent them from discriminating against foreign holders of patents or copyrights. This obligation falls under the concept of national treatment.
IP in Guyana
Naturally, with the focus on national efforts, one must take a look internally to see what has been done to honour the obligations made under the TRIPS. Although the subject of intellectual property rights is not often seen in our local headlines, it remains an important issue that must be given more attention in Guyana. By failing to do so, Guyana runs the risk of being accused of violating IPRs, as was recently done by Home Box Office Latin America (HBO LA). Most music, videos, and software for sale are pirated. Book piracy is also rampant, both in the case of local textbooks as well as foreign ones; some estimates say illegally photocopied textbooks account for a substantial amount of local book sales. Additionally, Guyanese businesses have been known to use pirated software for their computers.
Therefore, a self-critique would lead one to say that Guyana’s enforcement mechanisms of Intellectual Property (IP) laws is poor. In addition, the laws need to be updated. These ineffective enforcement mechanisms are evident in the high level of piracy that occurs. The new government has however signalled disapproval of such practices and pledged to check that computers used in government offices are using fully compliant software. The risk of not doing so is to decrease confidence in the business environment in Guyana and to discourage foreign investment.
Happy 51st Independence Anniversary to all Guyanese and especially the readers of Stabroek News!