Major Controversial Issues of

Intellectual Property:

Developing Countries Perspectives

SUBMITTED TO

Mr. Mohammad Ataul Karim

Lecturer & Program Coordinator

SUBMITTED BY Sadiya Sultana Silvee

Program: LL.B Honors

ID: 110311004

Batch: 1103

Major Controversial Issues

of Intellectual Property:

Developing Countries Perspective

SUBMITTED TO

Mr. Mohammad Ataul Karim

Lecturer & Program Coordinator

SUBMITTED BY Sadiya Sultana Silvee

Program: LL.B Honors

ID: 110311004

Batch: 1103

Contents

Introduction i

Acknowledgement ii

Acronyms iii

Chapter 1

1.1 Rationale of the Assignment 1

1.2 Methodology 1

1.3 Limitation of the Assignment 2

Chapter 2

2.1 What Is Intellectual Property ? 3

2.2 Intellectual Property Rights 3

2.3 Types of IPRs 3

Chapter 3

3.1 Discussion on IPRs 4

3.2 Controversial Issues 5

3.2 TRIPS and the Developing Countries 8

Conclusion 9

Recommendations 10

References 11

i

INTRODUCTION

The protection of intellectual property rights (IPR) has become one of the most contentious issues in global commerce. IPR-related disputes dominate not only trade among nations, but business within nations. Several trends – globalization of technology and skill, emergence of new technologies, and the rapid development of emerging economies – have jointly elevated the importance of IPR protection, both politically and commercially. Few policy issues evoke the emotional response that has accompanied the international debate over intellectual property. While the United States is a leading advocate of intellectual property protection , a bloc of developing countries—led by India and including many host countries of USAID Missions—denounces the intellectual property system as a new form of colonial exploitation designed to protect corporate interests in the developed world at the expense of the developing world. Discussions are also influenced by humanitarian concerns over the catastrophic AIDS crisis in sub-Saharan Africa and stories of “biopiracy” of indigenous knowledge and biological resources.

In this assignment we review the ways intellectual property protection can contribute to economic development, some of the most common intellectual property issues confronting developing countries and USAID Missions, types of technical assistance developing countries are likely to welcome, and resources available to USAID missions and developing countries for technical assistance on intellectual property.

ii

Acknowledgement

This assignment summarizes the most salient IPR issues, such as the economic

impact of weak protection of IPR, outdated patent systems in developed

economies, tensions between developed countries and developing countries

over IPR protection, government and business responses, and proposed

reforms.

I, consider it a great privilege to thank my course Lecturer Mr. Mohammad Ataul

Karim for his invaluable guidance, supervision and encouragement without

which this assignment would never have come to fruition.

I would like to express my sincere gratitude to all my course lectures for helping

me in completing my assignment.

Finally, a big thank to all the co-operation in providing the relevant data for the

assignment.

iii

ACRONYMS

BSA Business Software Alliance CGIAR Consultative Group on International Agricultural Research CCPA Court of Customs and Appeals (USA) EC European Community EPC European Patent Convention EPO European Patent Office FAO Food and Agricultural Organization (UN) FDA Food and Drug Administration (USA) GATT General Agreement on Tariffs and Trade GSP General System of Preferences IARC International Agricultural Research Centre INPI National Institute of Industrial Property (Brazil) IP Intellectual Property IPRs Intellectual Property Rights IPP Intellectual Property protection ITC International Trade Commission (USA) MNF Most Favored Nation MNE Multinational Enterprise NAFTA North American Free Trade Agreement NGO Non-governmental Organization NIC Newly Industrializing Country NWGPL National Working Group on Patent Laws (India) OECD Organization for Economic Co-operation and Development OJEC Official Journal of the European Communities PIPR Private Issuers Publicly Raising PPA Plant Patent Act (USA) PVPA Plant Variety Protection Act (USA) R&D Research and Development SPC Supplementary Protection Certificate (EC) SCPA Semiconductor Chip Protection Act (USA) TRIPs Trade Related Intellectual Property rights UN United Nations UNCTAD UN Conference on Trade and Development UNDP United Nations Development Program UNEP United Nations Environment Program UPOV International Convention for the Protection of New Varieties of

Plants WTO World Trade Organization

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1.1 Rationale of the Assignment

For all intents and purposes, IPR protection was not a major international trade issue prior to the 1990s – and for good reason. Prior to the end of the Cold War and the advent of accelerated globalization and the information revolution in the 1990s, the protection of IPR remained mainly a domestic, rather than a global, issue. But since the 1990s, IPR protection has assumed growing salience in international trade in general, and in the commercial relations between developed and developing countries in particular. Several trends have made IPR protection a critical business and national strategy for corporations and governments. The purpose of the assignment is to summarize the most salient IPR issues,

such as the economic impact of weak protection of IPR, outdated patent

systems in developed economies, tensions between developed countries and

developing countries over IPR protection, government and business responses,

and proposed reforms.

1.2 Methodology

My assignment methodology required gathering relevant data from the specified

documents and compiling databases in order to analyze the material and arrive

at a more complete understanding about Intellectual Property and the facts of

dispute between the Developing Countries and Developed Countries. I hope to

shed light on the following questions through my study:

What are the facts of dispute between the Developed Countries

and Developing Countries?

How can a stronger intellectual property system improve

the lives of ordinary people in developing countries?

What types of technical assistance will support both U.S.

policies and the interests of host countries?

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This assignment utilizes both quantitative and qualitative data collection tools,

but is rooted in a qualitative epistemological position that recognizes the

importance of locating the assignment within a particular social, cultural, and

historical context. It also takes seriously the social construction of these contexts.

The assignment is exploratory in nature, because the aim of the assignment is to

discover the ideas and insights about this particular assignment topic.

Sources of Data Collection: The study required secondary data only.

Secondary data has been collected from various books authored by foreign

writers, National and International journals, previous studies, articles, Internet

and various government documents.

1.4 Limitation of the Assignment

My study had several limitations. The study was limited to its small size data

collection. The assignment has been made as comprehensive as possible by

making use of available information from different initiatives from various

sources. There was also limitation in access. If access to different organizational

reports and document was available the study would have been broader.

However, several information are web-based, social groups, newspapers, books

etc. Nevertheless, a broader picture of other initiatives would have definitely

enriched this assignment. So, this could be the major limitation of the study.

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2.1 What Is Intellectual Property?

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.1 Intellectual property generally is divided into two main b r a n c h e s —industrial property and copyright. Industrial property comprises inventions, marks, and the r e p r e s s i o n of unfair competition. Copyright relates to works of authorship.

2.2 Intellectual Property Rights

Intellectual property rights are like any other property right. They allow creators, or owners, of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.2

2.3 Types Of Intellectual Property Rights

1” World Intellectual Property Organization, http://www.wipo.int/about-wipo/en/. Last visited on 12th August 2014. 2 Ibid

Intellectual Property

Copyright Patents TrademarksIndustrial designs

Geographical indications

Traditional Knowledge

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3.1 Discussion on IPRs

• Copyright

Copyright refers to p r o t e c t i o n for works of a u t h o r s h i p , including computer programs. Copyright protects any o r i g i n a l work of authorship against copying—reproducing copies, preparing derivative works, distributing copies, selling copies, or performing or displaying the work publicly. The related area o f n e i g h b o r i n g rights protects performers, producers of phonograms (sound recordings), and broadcasting organizations.3

• Patents A patent is a government grant of exclusive rights in the invention for a limited period of time, in exchange for which the inventor must disclose the invention to the public. To be patentable, an invention must be new, useful (or industrially applicable), and n o t an obvious improvement over previously known inventions. An invention is a new development in any field of technology. It is typically a new device, process, composition of matter, or an improvement on any of these.4 • Trademarks

A mark is any sign or combination of signs capable of distinguishing the goods or services of one un de rta ki n g (i.e., person or business) from t h o s e o f another. The terms “mark” and “trademark” include service marks. A related area is the geographical indication (also called an appellation of origin), which identifies a good as originating in the territory of a particular country, or a region or locality in that territory where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographical origin.5

• Industrial designs

An industrial design is any composition of lines or colors, or any three-dimensional form that gives a special appearance to and can serve as a pattern for a product of industry or handicraft. An industrial design is generally protected if it is new or original and not dictated solely by technical or functional features.6

3 Ibid 4 Ibid 5 Ibid 6 Ibid

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• Geographical indications

Geographical indications and appellations of origin are signs used on goods that have a specific geographical origin and possess qualities, a reputation or characteristics that are essentially attributable to that place of origin. Most commonly, a geographical indication includes the name of the place of origin of the goods.7 • Traditional Knowledge

A living body of knowledge that is developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity is known as Traditional Knowledge.

3.2 Controversial Issues

The major controversial issues for the time being are discussed below:

Patent protection for pharmaceutical products.

Plant variety protection which is seen as harmful for farmers in developing countries;

The long and strong protection in the high-technology field;

The protection for geographical indications (important for some

countries and less so for others);

Patent protection for pharmaceutical products.

Patents are exclusive property rights in intangible creations of the human mind. They exist only as provided in the laws of sovereign states, and can be enforced only to the extent that application has been made and a patent granted covering the territory of an individual state. Patent rights are limited in duration.

7 Ibid

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The pharmaceutical industries are different from other technology-based industries. In a technology based industries it is possible to keep their inventions secret until they start promoting their product. This enables inventors to delay patent filings until the last possible moment. But in case of pharmaceutical industries tolerance for a “buyer bewares” philosophy is extremely low compared to other industries. In a medical research, the researchers have an obligation to share their findings as soon as possible with their peers so that those peers will be able to benefit from the new knowledge in their own research. In 2001 the pharmaceutical industry pipeline contained 402 new cancer medicines,

123 new treatments for heart disease and stroke, 83 new AIDS treatments and 176

new medicines for neurological diseases.8 But only few medicines are in market. The

reason behind it is the manufacturing costs of these medicines are higher. Thus, their

price will be higher in the market.

The fact that many patients of the developing countries will not be able to access

these expensive medicines as it will cost more them than the developed countries.

Many developing countries has their own pharmaceutical industries but due to lack

of funds they are unable to provide their people with also sorts of medicine.

Thus, developing countries are not supporting patent protection rights. According to

developing countries view patent protection will:

a) Increase the price of the medicines.

b) They will become consumers.

c) They will become economical unwell. d) This protection will make the developing countries to get depended on

the developed countries for medicine such as, AIDS.

Plant variety protection which is seen as harmful for farmers in

developing countries

The application for patent protection of Plant varieties covers all the necessary standards and requirements that are available in the developed countries. This necessary and requirements creates the farmers of developing countries into problems. The developing countries don’t have patent protection on many organisms which might help them in their research. Few developing countries don’t have required instruments to carry on a research. Such obligation slows down the research process of developing countries.

8 USC Sec. 156 Phamaceutical Industry Profile 2003 at 17

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And to get international protection on plant varieties a country needs to have a national law. Many developing countries don’t have any national law.

Recently, India has enacted a law called India’s Plant Variety Protection and Farmers’ Rights Act9. The law is not yet enforced. According to the developing countries patent protection on plant varieties will:

a) Create danger on food security on the developing counties. b) Will not allow the farmer to grow the crops they want to. c) Will increase the risks of disease outbreak.

The long and strong protection in the high-technology field

The level of IP protection on developed countries is higher than in the developing countries. The long term and strong protection in the high-technology fields are not allowing the developing to get access to the technologies they require for their development. As a result if foreign imports of technology increase this might hamper the domestic economy of the developing countries.

The protection for geographical indications (important for some

countries and less so for others)

This protection is supported by the developing countries, according to them that GIs can play a useful role in defining and exploiting the products generated by collective knowledge. But according to developed countries:

a) This protection will act as benefit for a country depends on circumstances and time horizon.

b) The standards to get IP protection will not be maintained(e.g. the novelty requirement in patents and the scope of fair use in copyrights)

9 ‘ India’s Plant Variety Protection and Farmers’ Rights Act ‘

http://www.iprsonline.org/ictsd/docs/SahaiBridgesYear5N8Oct2001.pdf.visited on 15-08-14

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3.3 TRIPS and the Developing Countries The Developing Countries who are the members of WTO has raised many reasons behind not implementing TRIPS agreement in their country. According to them the agreement is mainly benefiting technology-rich countries. There are number of reasons why developing countries are saying it. The reasons are discussed below: The develop countries will use strong protection to exploit IP for their own economic developing.

a) It will force the developing countries to pay for IP b) It will increase the transfer of technology making the developing

countries getting depended on developed countries for their developing. c) It will benefit the developed countries economically.

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Conclusion

In this paper, we tried to summarize the whole assignment, mainly concentrating on the debate between the developing countries and develop countries.

In Chapters 2, we discussed about Intellectual Property and its rights. We tried to give a clear view of Intellectual Property and the rights it is providing. The chapter has also highlighted the applicability of Intellectual Property.

In Chapters 3, we discussed about the controversial issues between the developing countries and develop countries. We tried to view the reasons of controversy. The chapter also focuses on the reason why few developing countries are not supporting TRIPS agreement. The over-all assignment will give a clear scenario about the issues of controversy and the reasons behind it.

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Recommendations

Intellectual property is important for both the countries, developing and developed countries. As the world is now moving towards knowledge based economic development. So IP will play an important role. And when there is importance of IP, therefore IPRs will also be needed.

Many developing countries has no national laws for their IP. At first, the developing countries need to enact laws for IP. Secondly, needs to create path for creators to invent new. Thirdly, needs to make use of their geographical indications and traditional knowledge for marketing to develop economically. TRIPS agreement needs to amend in many places creating path for developing countries to get benefited as well. Firstly, the products which are necessary for public health needs to be kept outside from strong protection zone. Secondly, amendment of Article 66(2) of the TRIPS Agreement which says, ’incentives to their enterprises and institutions to promote technology transfer to the least-developed countries.’

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References

1) World Intellectual Property Organization,

http://www.wipo.int/about-wipo/en/. Last visited on 12th August 2014.

2) USC Sec. 156 Phamaceutical Industry Profile 2003 at 17

3) India’s Plant Variety Protection and Farmers’ Rights Act ‘ http://www.iprsonline.org/ictsd/docs/SahaiBridgesYear5N8Oct2001.pdf.visited on 15-08-14