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Re: Copyright impact in Developing Countries

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  • Andrius Kulikauskas
    I am organizing a workshop for the EU thematic network COMMUNIA for the Public Domain http://media.polito.it/mailman/listinfo/communia-prep and also I engage
    Message 1 of 1 , Mar 27, 2008
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      I am organizing a workshop for the EU thematic network COMMUNIA for the
      Public Domain http://media.polito.it/mailman/listinfo/communia-prep and
      also I engage the Union for the Public Domain
      http://lists.essential.org/mailman/listinfo/upd-discuss and two working
      groups at my Minciu Sodas laboratory
      http://groups.yahoo.com/group/netbrotherhood/ and
      http://groups.yahoo.com/group/learningfromeachother/ Andrius Kulikauskas

      Maria Agnese Giraudo,

      Thank you for shortening your statement on "Intellectual Property Rights
      protection impact in Developing Countries". I look forward to you
      leading a debate on this at our workshop Ethical Public Domain: Debate
      of Questionable Practices in Vilnius, Lithuania on March 31, 2008
      http://www.ethicalpublicdomain.org live video feed:
      http://www.internettv.lt online chat: http://www.worknets.org/chat/

      Thank you for your important topic. You found some excellent references.
      However, when you present your statement, please state the ideas in your
      own words so that it is clear you understand what you are saying and we
      can, too. You consider several areas:
      A) Digital content and Internet
      B) Access to content for education and scientific research
      C) Scientific research and economy
      D) Patents in pharmaceuticals
      You can mention them all (one sentence each) but please focus on one of
      these areas so that you can present your position in five minutes! and
      we can debate and discuss.

      Let us know who you are criticizing and for what reason: Scientific
      publishers? the European Union? African states? Drug companies?

      Agnese, you have already received your first response. I am excited
      because it is from Richard Stallman
      who is the author of the GNU software license and the founder of the
      free software movement which is the inspiration for Creative Commons,
      COMMUNIA, and our workshop Ethical Public Domain. I add his letter after
      your statement below. He urges us not to use the term "intellectual
      property" but rather to use the terms "copyright" and "patent"
      separately and not try to lump them together. I note that there are
      other topics that are relevant, such as "terms of service". Perhaps
      these might all be called "regulation of competition"?

      Agnese, Thank you for bringing us this important topic! It is wonderful
      that Eric Wanjamah, Kennedy Owino, Pamela McLean, Theresa Bakalarz and
      others who care about Africa will be able to discuss with us. I will ask
      Birute Railiene and look for others who might represent an opposing
      point of view, for example, representing traditional journals and libraries.

      Andrius Kulikauskas, Minciu Sodas, http://www.ms.lt, ms@...


      Intellectual Property Rights protection impact in Developing Countries
      By Maria Agnese Giraudo


      Trade –Related Intellectual Property Agreements TRIPS
      World Intellectual Property (WIPO) Copyright Treaty (WCT)
      WIPO Performances and Phonograms Treaty (WPPT)

      Digital content and Internet

      Dalindyebo Shabalala, in Towards a Digital Agenda for Developing
      Countries, 2007
      analyses the expansion of the international protection of Intellectual
      Property Rights to digital and Internet content by treaties, with some
      reference to national legislations. The Author considers the impact of
      the enforcement of IPR in developing countries in term of risks and on
      the contrary the development of Public Domain as a great opportunity.
      I report some actions to undertake now and next steps suggested by
      Shabalala (Chapter VI.3 The Way Forward for Developing Countries)

      Shabalala says “Do not sign TRIPS-Plus, WCT and WPPT. Developing
      countries should not sign such terms in bilateral treaties with the
      United States or the EU …”
      Economic Partnership Agreements (EPAs) with the European Union (EU) have
      been negotiated in the past decades with more than 30 countries.
      Recently EU is negotiating with regional blocs instead of specific
      countries. (ACP Countries: CARIFORUM/CARICOM (Caribbean); CEMAC (Central
      Africa): ECOWAS (West Africa); ESA (East Africa); the Pacific Forum;
      SADC (Southern Africa);

      Controversial issues between EU and Developing Countries regard: the
      close coordination of developed counties for harmonization in the matter
      and delay in taking decision in Substantive Patent Law Treaty (SPLT). EU
      Looking at IPR enforcement as a priority and focusing on
      anti-counterfeiting and anti-piracy measures.

      African Union “Nairobi Declaration on Economic Partnership Agreements”
      12-14 April 2006:
      “Welcome the progress that has been made on clarification of the flexibility
      available under the WTO Agreement on Trade-related Aspects of Intellectual
      Property Rights, including the amendment to the Agreement’s provisions on
      compulsory licensing. We urge our negotiating partners to fully respect this
      progress in the context of EPA negotiations and to refrain from seeking
      that exceed those under the TRIPS Agreement. We urge the EU to expeditiously
      complete the procedures necessary for the amendment to be implemented and
      utilised by their producers and exporters of pharmaceutical products as
      part of the
      community regime. We also reject any attempt to introduce any TRIPS plus
      provisions on any intellectual property rights issues in the EPA
      Did African Union position sort some effect in these agreements?

      Access to the content for education and Scientific Research in
      Developing Countries
      Infrastructural problems, content access.
      Shabalala says: “ Maintain and fully implement existing exceptions and
      limitations” regarding Internet content that is vital for developing
      countries together with ISPs and P2P and Search engines, then exceptions
      for temporary, incidental and ephemeral copies.
      In developing countries Internet and digital content is vital and is the
      main source of information, education for all purposes of social,
      cultural and economic development.
      Online content has to be integrated with digital-optical disk and
      analogic documents and all distribution system has to be reviewed in an
      open access vision to cope with access problems.
      Access to scientific knowledge: publications, databases, two-way
      exchange, validation of results,
      Training, co-authorship.
      Open Access movement Initiatives: Pubmed Central- Biomed Central- Public
      Library of Science- Hinari-OARE- AGORA

      Scientific Research and Economy

      General Trends of restriction of Public Domain in favour of IPRs
      Bayh-Dole Act 1980 (shifting from Public Domain to pro-patent position)
      France- Innovation and Research Law 1999.
      Extension of IPR into scientific knowledge and production activities,
      connection of science with R&D, Research laboratory have commercial
      relationship with industry with increasing protection and patents.

      IPRs in TRIPS are trade-related , it means that "on one hand, there is a
      strengthening of IPR that favours industrialised countries. On the
      other, there are some international trade compensations favourable to
      developing countries.” (Forero-Pineda,2006, p.813)
      “[…] Trade compensations, granted by developed countries in exchange for
      more protection of IPR in developing countries, may balance the
      developing-country welfare-losses. Nonetheless, they may exacerbate
      those two negatives[in small countries], long run effects on domestic
      research. First, there is an additional stimulus to allocate investment
      resources to goods receiving incentives (traditional goods). Their
      technology content is low, and this will reorient resources away from
      domestic technology production[…]
      Trade-relating intellectual property will have two main consequences:
      (a) a deeper international division of labour, and (b)[…] and increase
      or decrease of the technology sector of this
      country”(Forero-Pineda,2006, p.814)

      Other disadvantages and costs of strengthening IPRs:

      High prices for imported products and new technology
      Loss of economic activity, by the closure of imitative activities, while
      innovation is restricted in small developing countries to transnational
      companies mainly of the pharmaceutical sector or in countries with R&D
      capability. (Lall, 2003, p.1661)
      Forero-Pineda (2006, p.813) indicates that the consequence is “the
      increase in the price of manufactured goods [that] will induce a switch
      in domestic consumption from manufactured to traditional or imported goods”
      Advantages for developing countries due to weak IPRs:
      Imitation and reverse engineering in technological development
      (Korea,Taiwan etc.) and local farmaceutical firms (India etc.)

      The discussion should perhaps focus on the human right of creating and
      of innovating and about the possibility of a low cost technology that is
      effective and innovative in all sectors from production to service

      Patents in pharmaceuticals

      After TRIPS agreements the most important consequence for developing
      countries has been “ the mandate to accept the patenting of
      pharmaceuticals” dismantling local industrial production.

      “India legislation of 1970 and many developed countries either refused
      patenting of pharmaceutical products or patented processes [….] At the
      time of the GATT Uruguay round, almost 50 developing countries did not
      grant pharmaceutical patents.

      The approval of TRIPs has reversed this tendency […]Member countries of
      WTO are required to grant both product and process patents in the
      pharmaceutical sector.” […Added to patent] trade secret protection
      “would not cover the product[…but] the clinical research. […]
      Pharmaceutical companies from developed countries fear the proliferation
      of small laboratories in developing countries dedicated to the
      production of no-patent and post-patent generics…” (Forero-Pineda,2006,

      Developments in this sector:

      Agreement in 2001 between WTO and WHO about price differentiation of drugs.
      Monopoly of patented drugs and lower quality level of no-patented drugs
      No benefit from research for developing countries

      There is general concern for the population of developing countries
      recruited by pharmaceutical companies for clinical trials, under “trade
      secret protection”. What kind of warranties and controls can be adopted
      to prevent abuses?
      How local pharmaceutical firms are coping with multinational companies?
      Is there still a market for them? What kind of market?

      Forero-Pineda Clemente The impact of stronger intellectual property
      rights on science and technology in developing countries Research Policy
      Lall Sanjaya Indicators of the relative importance of IPRs in developing
      countries. Research Policy 2003;32(9):1657-1680.
      IPRONLINE http://www.iprsonline.org/index.htm


      Richard Stallman:

      It is a grave mistake to use the term "intellectual property",
      because doing so lumps together unrelated laws.

      Patent law and copyright law are almost completely different, and
      should be treated as two separate topics. Trademark law is totally
      different from those two, and should be treated as a separate topic.
      To lump these topics together is a recipe for confusion.

      Ms Giraudo's article is about copyright law -- plus one paragraph
      about patent law which doesn't relate to the rest. Aside from that
      paragraph, it makes sense as an article about copyright. But every
      time it uses the term "intellectual property", it lumps in other
      unrelated laws and mixes up unrelated topics.

      Replacing the term "intellectual property" with "copyright", and
      deleting the one extra paragraph, would make the article coherent.

      See http://www.gnu.org/philosophy/not-ipr.html for more explanation.

      "Protection" is also a propaganda term in the context of copyright --
      see http://www.gnu.org/philosophy/words-to-avoid.html for explanation.
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