Developing countries face formidable institutional challenges in implementing IP protection, as required by TRIPS. Since the majority of developing countries with limited technological and scientific capacity have little to gain in the medium term from implementing TRIPS obligations, a major concern must be to limit the human and resource cost of establishing IP regimes. At the same time, these nations need to ensure that their national IP regimes operate in the public interest and are effectively regulated. The more technologically advanced developing countries will also want to ensure that their IP regimes complement and enhance their broader policies for encouraging technological development and innovation.
The challenges include formulating appropriate policy and legislation; administering IPRs in line with international obligations; and enforcing and regulating IPRs in a pro-competitive manner appropriate to national levels of development. Of course, many of these IP-related institutional and policy challenges are common to all countries but they are especially acute for many developing countries. And, importantly, the economic and regulatory context in developing countries in which IP regimes are being revised, in line with TRIPS, is often quite different from that in developed countries.
Difficult choices are involved. Should a developing country, for want of its own resources, be satisfied with re-registering patents because they have been granted in a developed country? Or should it attempt to develop national capacity in the examination of patents, in order to apply the different standards of patentability that we suggest may be appropriate? Under current circumstances, this is a very difficult task for the IPR administration institutions in most developing countries.
In this chapter we consider:
· What are the requirements for making effective IP policy and legislation in developing countries?
· How should developing countries approach the implementation of IP policy and enforcement of IP rights?
· How can developed countries and international institutions provide effective technical assistance to developing countries?
As the majority of developing countries, including LDCs, are either members of the WTO or in the process of becoming so, implementation of TRIPS requires changes in industrial property and copyright legislation. In some areas the changes will be relatively minor. In others, entirely new legislation is required. Many developing countries have already amended their IP legislation to comply with TRIPS and meet their January 2000 deadline. A much smaller number of LDCs have so far completed the legal and institutional reforms required to put TRIPS into practice. In addition to TRIPS, those countries not already members of international treaties such as the Paris and Berne Conventions may choose to join and this will require further legislative changes.
Developing countries also face choices about other IP-related reforms such as design of appropriate protection systems for plant varieties and plant genetic material; whether and how to protect traditional knowledge within the formal IP system; and how to regulate access and implement benefit sharing for national biological resources as envisaged under the CBD. Few countries have so far passed legislation in these areas. Quite apart from legislative or capacity issues, this may also reflect a lack of political consensus on which policies to adopt. In addition to amending IP-related legislation, developing countries also have to consider complementary reforms in related areas of the domestic regulatory environment, such as science and technology policy and anti-trust legislation.
In many cases, developing countries face particular difficulties in developing a comprehensive and co-ordinated policy on IP, in what is, for many, a relatively new area of public policy.[1] The impetus for policy changes in IP typically comes from international agreements to which the country is signatory, without necessarily having a coherent idea of how they can be implemented nationally (for example, TRIPS or the CBD). Within government, IP is a classic “cross cutting issue” affecting the interests of several government departments who will have different positions which will need to be reconciled. Typically, industry groups and other civil society organisations with a particular interest or view on the matter will also lobby departments. Moreover, some foreign governments may exert formal or informal pressure where they see their interests as being at stake. Thus the policy making process is complicated.[2] Ideally, formulation of IP policy in a developing country would be based on a sound appreciation of how the IP system might be used to promote development objectives, derived from an analysis of the country’s industrial structure, modes of agricultural production, and healthcare and education needs. But the expertise and the evidence necessary to undertake that task is often in very short supply.
The reality in many developing countries is that institutional capacity is generally weak, and in particular there is a lack of experienced and well-qualified officials. In the majority of developing countries there is considerable dependence on technical assistance, in the form of draft laws, expert advice and commentary on new draft legislation, provided by WIPO and other bodies.[3] In the words of one commentator:
“LDCs in particular do not have local experts to
evaluate the suitability of model international laws to local economic, social
and cultural conditions. LDCs often lack drafting expertise and are reliant
upon outside legal drafters, who may be brought in from those western legal
systems to which the LDC has historical links as consultants or on contract
basis for a set period. The problem is especially acute in the case of IP since
there are very few people who possess both the specialised technical skills of
legislative drafting, as well as expertise in IP law.” [4]
Thus, because the policymaking process is complex and technical, governments may seek to short circuit the process, particularly in the face of international agreed deadlines. They may therefore leave it to their own IP experts, if available, to construct legislation with minimal intra-government consultation. Or they may rely on foreign expertise. Either way the consistency of the IP legislation with development policies may not be subject to adequate scrutiny.
The ability of developing countries to co-ordinate policy across
government in undertaking IP-related reforms is therefore crucial. The evidence suggests that some countries
have established mechanisms to improve the co-ordination of policy making and
advice, with the main participants being the key ministries most involved i.e.
health, justice, science, environment, agriculture, education or culture (for
copyright and related rights). However,
these mechanisms are often only embryonic and their degree of effectiveness is
yet to become apparent – particularly in respect of integration of IP issues
with other areas of economic and development policy. In many cases, this may reflect the fact that such co-ordinating
bodies are not able to draw readily on a supply of the necessary technical
advice and expertise, but it will also reflects divergent interests within
government.
An under-emphasised aspect of IP reform in developing countries is the importance of the policymaking process itself, and the capacity for stakeholders, in government and outside, to participate in shaping policy and new laws. At one extreme, a country such as India has a broad-based, extensive system for public consultation and debate (including public workshops on controversial topics such as protection of biodiversity and traditional knowledge), as well as a high level of expertise within the academic, business and legal communities. At the other, in one sub-Saharan African developing country we reviewed, new copyright legislation was passed after just a technical drafting process with minimal public consultation or debate.
Box 7.1 Participatory Policy Making in Action: South
Africa
Since the late 1990s, the South African Government has been considering
reforms to the country’s copyright legislation. In the past, the publishing industry was the main interest group
participating in the process of influencing government policy on
copyright. However, in recent years,
the educational sector has played an increasingly active role, calling for
amendments to the law to address electronic copyright and to make provision for
distance education, special educational programmes and the needs of disabled
people (for example, the blind).
In 1998, the Department of Trade and Industry published Draft
Regulations to amend the current Regulations attached to the Copyright
Act. The educational sector responded
by setting up a Copyright Task Team, under the auspices of the South African
Vice-Chancellors’ Association (SAUVCA)
and the Committee of Technikon Principals (CTP). Stakeholders were invited to present position papers on the Draft
Regulations and then to submit comments on them. As the Draft Regulations were
restrictive to education, the Copyright Task Team submitted a consolidated
document of comments and objections from the educational sector. As a result,
the Draft Regulations were suspended.
In May 2000, the Department of Trade and Industry again published
proposals to amend the Copyright Act.
The SAUVCA/CTP Electronic Copyright Task Team was established to address
the proposed amendments, as well as other issues not included in the proposals
(e.g. those mentioned in paragraph one above). The proposed amendments were
again restrictive to education. After the said Task Team held discussions with
four Government Departments, namely, Trade and Industry; Education;
Communication; and Arts, Culture, Science and Technology, a number of the more
contentious amendments were withdrawn.
In January 2001, both Task Teams were disbanded to create two more
permanent Intellectual Property Committees to represent the educational sector,
namely, the SAUVCA IP Committee and the CTP IP Committee. These Committees have
since held discussions with the Department of Trade and Industry, the
Publishers’ Association of South Africa, the International Publishers’
Association and the Business Software Alliance. The SAUVCA IP Committee is
currently preparing a working document on ‘fair use’ and ‘multiple copying for
educational purposes’, for further discussion with stakeholders.
Developing countries such as Kenya, for example, which have longer
traditions of IP policy making and a larger constituency of IP lawyers,
academics and interested civil society organisations, are somewhere in the
middle of this spectrum. During our visit,
for example, we were able to meet the recently established TRIPS sub-committee
responsible for considering how Kenya implements the TRIPS Agreement. This sub-committee included representatives
from various government departments as well as from the private sector. In many developing countries, however, we
believe there is still substantial room for improvement in terms of building a
genuinely participatory process for IP policy reform. This objective should be given more emphasis by governments and donors
alike.
Developing countries and donors should work together to ensure that
national IP reform processes are properly “joined-up” with related areas of
development policy. Likewise, greater
efforts are needed to encourage more participation by national stakeholders in
IP reforms. In providing technical
assistance, donors must be mindful of the need to help build the capacity of
local institutions to undertake IP policy research and dialogue with
stakeholders, in addition to providing international experts and legal advice.
There is very wide variation in the volumes of IPR applications and grants processed by developing countries (see Table 7.1.) and this has an important bearing on the institutional requirements for IPR administration. Applications are in part determined by whether the country is a member of the PCT or other international arrangement or of a regional organisation. But in most developing countries only a very small proportion of applications made under these agreements currently enter the “national phase” where substantive grant and registration takes place. Other factors include differences in national IP laws and regulations (which may be more or less attractive to applicants) and the IP policies of multinational corporations.
A WIPO study in 1996[5] surveyed 96 developing countries and found that in over two-thirds of the sample, administration of industrial property was performed by a department within a ministry of industry and trade, or a ministry of justice. In 10 countries, an independent government agency was responsible for administration of industrial property. The administration of copyright was performed by a department in a ministry of education or culture in a third of the sample and by an independent copyright agency in 15 cases. Interestingly, in another third of the countries sampled, there was no special unit identified at all within the government with responsibility for copyright administration.
Table 7.1 Volumes
of Applications and Grants in Eight Developing Countries, 1996-98
|
Country |
1996 |
1997 |
1998 |
|||
|
|
Appls |
Grants |
Appls |
Grants |
Appls |
Grants |
|
Patents |
||||||
|
China* |
52714 |
2976 |
61382 |
3494 |
82289 |
4735 |
|
Guatemala |
104 |
8 |
135 |
15 |
207 |
17 |
|
India |
8292 |
1020 |
10155 |
N/a |
10108 |
1711 |
|
Jamaica |
79 |
23 |
70 |
21 |
60 |
16 |
|
Kyrgyzstan* |
20305 |
125 |
25103 |
133 |
33905 |
91 |
|
Malawi* |
39034 |
117 |
49934 |
49 |
67760 |
80 |
|
Sudan* |
39061 |
97 |
49920 |
37 |
67719 |
64 |
|
Viet Nam* |
22243 |
61 |
27440 |
111 |
35748 |
N/a |
|
Trademarks |
||||||
|
China** |
150074 |
121475 |
145944 |
217605 |
153692 |
98961 |
|
Guatemala |
8206 |
5490 |
10588 |
6369 |
9988 |
4806 |
|
India |
N/a |
4436 |
43302 |
N/a |
36271 |
4840 |
|
Jamaica |
1537 |
1346 |
1883 |
2195 |
2005 |
1966 |
|
Kyrgyzstan** |
||||||