© Springer International Publishing Switzerland 2015Brian Fitzgerald and John Gilchrist (eds.)Copyright Perspectives10.1007/978-3-319-15913-3_6
6. IP and Development: A Road Map for Developing Countries in the Twenty-First Century
College of Business Administration, Sharjah University, Sharjah, 27272, United Arab Emirates (UAE)
Thomas More Academy of Law, Australian Catholic University, 486 Albert Street, East Melbourne, VIC, 3002, Australia
The value of an intellectual property (IP) regime to a developing country is the subject of increasing debate. On one side IP evangelists argue that IP laws can stimulate untold innovation and provide a foundation for economic progress. On the other side IP sceptics or abolitionists question whether IP laws really incentivise innovation or simply represent an unforeseen burden on social and economic development. The reality for many countries is that while theoretical debates are important they do not provide immediate solutions. For this reason, we want to put the polarising debates to one side and focus on how developing countries can utilise and sensitize IP to their development needs. In order to do this in the following pages, we outline current thoughts on development theory, how it informs IP law and practice and then produce same practical suggestions about ways in which developing countries can grow and implement IP regimes that are more supportive of their needs.1
6.1.1 The Meaning of Development
“Development” is a contested term between scholars, organizations and development experts in developed and developing countries. Nevertheless, it is one of the most important challenges facing the international community, and has been widely acknowledged in many international conventions and forums.2 It is understood to mean improving the lives of people socially and economically. It encapsulates the improvement of individuals’ lives through providing greater education, skills development, income and employment.
There is no single international definition of what is meant by the term “developing countries”. The UN organizations divide developing countries into several groups of countries based on their income, education, healthcare and life expectancy.3 The following criteria have been used to determine if a country is a developing country:
Small Gross National Product (GNP) relative to the major players in the trade arena;
limited domestic resources;
exports are concentrated in terms of products and trading partners;
high average trade barriers; and
economic and political dependence on developed countries.4
Within the term of “developing countries”, one might also distinguish between “Least Developing Countries” (LDCs)5 and “emerging economies” or “newly industrialized countries”.6 According to the United Nations Conference on Trade and Development (UNCTAD), there are currently 33 countries in Africa, 14 in Asia, 1 in Latin America and the Caribbean that are considered as LDCs.7
It is worth mentioning that the concept of developing countries is highly controversial, IP commentators Shamnd Basheer and Annalisa Primi argue that there is a need to move away from an antiquated developed-versus-developing-countries classification and differentiate developing countries according to their technological and innovative proficiencies.8 The problem with such a proposal is the difficulty in agreeing on the criteria used to assess and classify countries according to their technological or innovative capabilities.
6.1.2 The Theory of IP and Development
There are various theories on development formulated particularly in the 1960s suggesting that a system of IP protection is a necessary part of the evolution of states from being “under-developed” to becoming “developed”.9 Over time, European countries have required that many of their colonies in Asia, Africa and Latin America to adopt IP laws10 to help them in their social and economic development.11
Scholars working in the field of IP have different views on the effect of development within the context of IP. Some agree that development could be achieved through the introduction of IP systems in developing countries whilst others are doubtful whether such systems would be sufficient to support development.12
It is argued that IP systems will not bring social and economic development of developing countries without the support of proper development policies. In pursuing economic development, developing countries must address a range of activities including efficient and effective government, coherent economic policies, political stability, human capital, technical infrastructure and the rule of law.13
It is important for the drafters of IP laws in developing countries to increase their understanding as to how IP can affect their economies and how to connect it with the economic realities of their countries. While IP may bring Foreign Direct Investment (FDI), technology transfer, domestic innovation, and Research and Development (RD) to developing countries, economic development will not occur simply through the introduction of IP laws. Policy makers in developing countries need to consider broader development initiatives in the structuring of their IP system. To this end, every provision that is introduced into the IP law should be studied and examined as a part of the broader development plan for the country.14
In 2004, Brazil and Argentina presented a comprehensive proposal on behalf of developing countries to establish the Development Agenda in the World Intellectual Property Organisation (WIPO). They put forward a view that IP laws in their current form are not helping those countries in their development, as is constantly being suggested by developed countries, and that there is a need to rethink the international IP system and the work of WIPO.15 In 2007, WIPO member States made a historic decision for the benefit of developing countries, to establish a WIPO Development Agenda16 to ensure that IP rights are not considered in isolation, but within a broader picture of economic, social and public interests.17 WIPO approved the Development Agenda and established a Committee on Development and Intellectual Property (CDIP) to manage its implementation.
As a consequence, research on IP and development has gained renewed momentum.18 Many scholars and international organizations are critical of the failure of the international IP system to assist developing countries and argue that it needs to be changed to meet the development ambitions and objectives of these countries.19
Arguably, we have reached a critical point in history where the credibility of the international IP system is being seriously challenged. This has provided a window of opportunity for developing countries to advocate for a more accountable, transparent and humane IP system.
6.1.3 The Practice of IP and Development
In pursuing any plan for development, developing countries need to be aware of how they can tailor their IP system to their needs. In the following pages, we suggest some practical measures that we consider developing countries should explore with the aim of getting better return from their IP systems.
184.108.40.206 Educate Policymakers and the Public on IP and Development Issues
It is critically important to educate policy makers and those involved in the drafting of IP laws in developing countries on IP and its relationship to development theory.20 IP can no longer be seen as a tool that is used for the sole benefit of inventors and intellectual creators, but rather it is important for many people in developing countries, as it impacts on their lives in a wide range of issues including education, innovation, creativity and health.21
It is important to undertake studies to evaluate the economic and cultural impacts of industries that rely on IP, in developing countries. Such studies should help understand the needs of various sectors of the economy and how they can be encouraged by IP systems. These studies would aid the drafting of appropriate IP laws which correspond with the economic and cultural needs of developing countries.
Many of the IP government organizations (such as copyright and patent offices) in developing countries need to be structured in a way to meet the needs of those countries and to help in their development. These government organizations should not only work (or be seen to be working) to promote the IP rights of foreign corporations or to increase their portfolio of IP registrations, but should also work closely with local inventors and creators, especially those who are keen to protect local culture and indigenous knowledge. This will require them to educate the public on how to use IP for the benefit of the domestic economy. They should also advise governments on the proper policies that need to be implemented in order to gain maximum benefits under the international IP systems.
Developing countries should also spread awareness among IP offices, IP scholars, international organizations and others in developing countries, of the importance of the WIPO Development Agenda and the implications that it might have on the practice of IP in those countries and beyond.
Finally, it is also important to teach people in developing countries about IP from the perspective of development. This means that IP scholars in those countries should teach IP to students in a balanced way that takes into consideration the needs of businesses as well as consumers and the general public. IP scholars in developing countries should also make sure that appropriate educational materials reflecting this approach are made available for the benefit of the students and the greater community.
220.127.116.11 Revise IP Laws and Adopt a Pro Development Perspective
As suggested before, most developing countries already have IP laws and are not in a position to repeal those laws. However, developing countries need to re-examine these IP laws to ensure that such laws are in fact of assistance to them and are not impeding their social and economic development. Such IP laws need to be structured in a way that is ‘pro-development’, by understanding the circumstances for each developing country, its international obligations and its local needs, and by structuring an IP system that correlates with those needs and obligations and which assists in its development. IP laws will also need to be amended from time to time to adapt to the changing needs of each developing country as it grows.
It is argued that it is important to move beyond the view that only owner centric IP laws are essential for developing countries. This could happen by adopting a more balanced view of IP that does not favour only IP owners, but also gives an equal importance to users and the public. Instead of drafting “stronger IP laws”, it is more important to have appropriate laws that correspond with the needs of both IP owners and their community.22 Furthermore, IP laws should be structured in a way that supports public policy objectives such as those relating to the transfer of technology, public health and the environment.23
IP laws should not be looked upon as an end in itself, but as one of a range of possible tools that developing countries can use to promote innovation, creativity, technological capacity and development.24 It is also important to recognise IP not only from an economic perspective, but also from a cultural perspective. This requires developing countries to design IP systems that not only promote economic development, but which also promote local culture and boost local innovation.
The internet is a powerful tool and a source of opportunities that should be used by developing countries to further their development. Accordingly, it is important to make sure that IP laws in developing countries are structured in a way that does not unreasonably interfere with their citizens’ usage of the internet, and to ensure that such usage contributes to their country’s social and economic development. IP laws in developing countries therefore need to facilitate access to knowledge and allow citizens to develop their educational capabilities.
Finally, it is critical to acknowledge the importance of having liberal and generous limitations and exceptions in the IP laws of developing countries,25 as they are an essential part of achieving a balance between private and public rights.26 There are many flexibilities set out in international IP agreements, including the TRIPS Agreement 27 that could be used to the advantage of developing countries.
18.104.22.168 Consider Seriously Alternative Approaches to IP
Some observers think that IP laws are overly restrictive when applied in the internet context. They argue that we should be looking for ways to reduce impediments to the use and reproduction of information over internet networks. This approach has not yet been fully explored in many developing countries by academics and researchers interested in IP. It is important to consider alternative approaches to managing IP including open source software, sui generis protection, public domain, open content licensing and Access to Knowledge (A2K). These alternatives could be helpful in assisting social and economic development in developing countries.
It is submitted that developing countries generally should commit resources towards launching a public awareness campaign to educate people on how best they (particularly students, teachers, archivists, academics and librarians) can access and capitalize on copyrighted materials, which they are legally entitled to access freely.28
It is imperative for developing countries to understand and know how to use open code and content licensing systems (voluntary mechanisms) such as Free and Open Source Software (FOSS) and Creative Commons (CC).
According to Professor Steven Weber, FOSS could be an important tool in helping developing countries in their social and economic development,29 especially when it has been localised for the benefit of the people working in the government, business and education sectors.