November 18, 2009

Commentary: Cultivating intellectual property rights, responsibilities and respect in the Caribbean
Published on Wednesday, November 18, 2009

By Abiola Innis

On October 28, 2009, this writer, upon browsing the Kaieteur News of Guyana, was left open-mouthed in astonishment at finding on page 9 of the newspaper, a big bold copy of my last article published on October 27, 2009, by Caribbean Net News entitled ‘Restorative justice: a farfetched idea for the Caribbean?

While the reader may at first think it something of an honour, I was astounded to discover that the title had been changed to read “Region may need restorative justice” and that the article was attributed to some place on the world wide web named Hoovers (readers may find a scanned copy of the infringing page here).

At no point was my authorship acknowledged nor was the source from which the article was derived, namely,
Caribbean Net News. Being Guyanese, I felt especially wounded at such blatant disrespect and dishonesty as the reward for honest effort and some input of scholarship, and while it is said that life holds few surprises for the wary, the sting of theft is no less painful for the knowledge of the thief and this act in fact places the Kaieteur News in the very bracket of corruption which it claims to highlight in its offerings.

Two other national newspapers in particular, the Stabroek News and the Guyana Chronicle added their tacit consent to this illegality by refusing to publish my letters of complaint on the issue.

Artists, producers, inventors, writers, artistes and all who labour in mind to originate works which add to the general store of knowledge in diverse forms ,are the creators of intellectual property and are therefore entitled to protection of the intellectual property laws, provided of course that such laws exist.

Across the Caribbean region there are varying degrees of interest and effort in the preservation of the rights of originators of works, but there is as yet no concrete regional approach. In addition it has become the cultural norm in most countries of the region to treat IP rights with scant regard so long as it may be done with impunity; the reasons for this range from ignorance that such rights actually exist, to opportunism of varying degrees.

Grenada is to be commended for their efforts and intentions at public awareness and for attempts to offer greater legal protection while Jamaica is perhaps the leader in enforcement of IP rights. Guyana is yet to craft a programme which will incorporate relevant legislation, enforcement, education, and an equitable balance between the need to earn a living and fair access to IP resources.

It is needless to say that the current laws are woefully inadequate, unacceptable and do not for most part incorporate the standards of the conventions on IP to which Guyana is a signatory. Unless it is specifically intended by its construction to become law in signatory territories upon ratification (self executing), any regulations coming from a signed convention must be enacted by the legislature of that country in order to become law.

In short, countries may elect to sign on to conventions but not to enact the provisions as long as there are no penalties attached (very rare) or may choose to find ways of delaying the enactment and implementation of the conditions and avoiding the penalties. This has arguably been the case in some countries which have felt constrained to sign on to conventions with particular regard to IP rights.

It is a fact that most Caribbean countries are members of the World Trade Organization which has made it compulsory for all members to sign on to The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This means that all Caribbean countries, which are members of the WTO, are required to enact the minimum requirements on IP rights as set out by this agreement in order to participate fully in the WTO system. The agreement has been continuously criticised by many developing countries as giving especial advantage to developed countries which are huge producers of goods which are subject to these rights (see Jagdish Bhagwati (2004), In Defense of Globalization, Oxford University Press).

In the absence of any other comprehensive arrangement and in the face of the growing problems in IP, Caribbean countries need to take some very specific steps deal with their issues.

While Caribbean countries may be signatories to the WTO and TRIPS, CARICOM itself ought to create legal and regulatory framework which will deal with the regional requirements of IP rights. This need not conflict with the minimum requirements for TRIPS and will in fact aid in the development of a regional understanding resolution and development of the issues and benefits.

There are in my opinion three important stages in creating a comprehensive working system for the region:

Firstly there must be the implementation of legal and regulatory framework. In simple terms, the Caribbean Court of Justice ought to be given jurisdiction as a court of first instance on IP matters, which jurisdiction will extend through two other levels of appeals. This will ensure that Caribbean citizens have adequate redress for the infringement of rights. The use of alternative dispute resolution as required by TRIPS is also key, since there are some aspects of IP law which are more suited to this method of resolution than the court system. It would therefore mean that a regional Alternative Dispute Resolution Board must be established to deal with the mediation and arbitration of these issues.

Secondly, there must be enforcement of decisions coming from the CCJ and the ADR Board. In the case of the CCJ, signatory countries already have mechanisms in place to deal with this. The same will have to be done for the ADR Board, though this would only apply to arbitration.

And finally there must be a regional approach to educating our citizens on the issues, building awareness and respect in much the same manner and with the same amount of effort expended on HIV/ AIDS and the CSME for example.

The Caribbean Community must make use of its viable human resource network in order to make a difference for the better in the way our society functions. In order for the law and the society to coexist equably and effectively, there must be a balance of the interests. There is also the requirement of honesty and integrity by citizens, whether corporate or individual. In the case of the Kaieteur News mentioned above, the reader will be the judge.

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