International developments in International developments in Intellectual propertyIntellectual property

Denise Nicholson

SA Representative for eIFL.net

and

Copyright Services Librarian, University of the Witwatersrand, Jhb.

ZULC Open Access and Creating a Knowledge Society Conference Harare - 25th April 2006

What is Intellectual Property?What is Intellectual Property?

IP refers to creations of the mind

Two categories:

– Industrial property - inventions (patents), trademarks, industrial designs, and geographic indications of source

– Copyright - literary, artistic & musical works, films, sound recordings & computer programs. Rights include those of performing artists, producers and broadcasters

Why international IP Why international IP developments are importantdevelopments are important

Copyright law characterized by international nature

National laws come from international treaties and

agreements

Librarians need to be vocal in international law-making

bodies

Without input from librarians and educators, laws could

be too restrictive!

Key international organizationsKey international organizations

The World Intellectual Property Organization (WIPO) (www.wipo.int)

The World Trade Organization (WTO) (www.wto.org)

WIPO Development AgendaWIPO Development Agenda

WIPO is a UN Agency - funded by international patent system.

WIPO’s decisions have huge impact on developing countries

Geneva Declaration on the Future of WIPO – WIPO Development Agenda – proposed by Chile and

Argentina – supported by 12 other developing countries, civil societies, etc.

WIPO Development Agenda WIPO Development Agenda (cont’d)(cont’d)

IP protection has become an end in itselfAgenda aims to re-orient WIPO to its original goal to

promote intellectual creativityWIPO obliged to facilitate and implement wider

development perspective of the UN Millennium DeclarationHas mandate to facilitate transfer of technology and

capacity building in developing countries

WIPO’s approach to AgendaWIPO’s approach to Agenda

Special intergovernmental meetings (IIMs)

Consensus blocked by U.S. and Japan

2005 Assembly agreed to 2 meetings in 2006 (one in

February; one in June)

Proposal by Chile on the public domain

Discussion of proposals by African Group

Draft Treaty on Draft Treaty on Access to Knowledge (A2K)Access to Knowledge (A2K)

FOD’s initiative to counterbalance current IP trends

Civil societies drafted A2K Treaty, which would - Redress imbalance Provide guaranteed minimum levels of exceptions and

limitations; Provide checks and balances between rights holders

and consumers; Support and promote new business models of open

access & open source software;A2K Conference – April 2006

Intellectual property in AfricaIntellectual property in Africa

Priorities differ

Western copyright vs. collective ownership

Outdated copyright laws restrict access

Co-operative between WIPO and ARIPO, OAPI & African Regional Centre for Technology (industrial property)

No copyright co-operation in Africa until recently

Few Rights Organizations function properly

Copyright laws are not balanced

Current laws fail to address needs of education, libraries & the sensory-disabled

Copyright – Copyright – a barrier to educationa barrier to education

Problems with accessing information –

Music lecturerDistance learner

Blind studentDeaf student

Librarian

Copyright – a barrier (cont’d)Copyright – a barrier (cont’d)

Nursing sisterLiteracy facilitator

Rural teacher

Access to knowledge and cultural treasures

Restricted!

Benefit or burden?Benefit or burden?

Is copyright working? Yes – for developed countries

Sophisticated income-protection mechanism

Low royalties for authors – what incentives?

Scholarly authors have to assign copyright

Educational institutions pay over and over

Bulk of works used are from abroad

Bulk of royalties paid to foreign rights-owners

Benefit or burden? Benefit or burden? (cont’d)(cont’d)

Copyright infringement – not generally with criminal intent

Communities cannot afford to buy works

Need the information to become educated

The stricter the law, the more infringements

TRIPS AgreementTRIPS Agreement

TRIPS ties copyright into global trading system Emerged from Uruguay Round on Tariffs and Trade

(GATT)First comprehensive IP agreement ever executed by

world’s trading nationsMinimum standards and legal flexibilitiesDeveloping countries have until end 2006 to become

TRIPS compliant in domestic lawsLDC’s have until 2016

Copyright and Trade:Copyright and Trade:Free Trade AgreementsFree Trade Agreements

“A Free Trade Agreement is a contractual arrangement which establishes unimpeded exchange and flow of goods and services between trading partners regardless of national borders.”(www.fedex.com/ca_english/shippingguide/glossary.html)

It contains an IP Chapter, the “TRIPS Plus”, which far exceeds minimum requirements of international IP Agreements

Behind closed doorsBehind closed doors

TRIPS-PlusTRIPS-Plus

TRIPS-Plus + Expanded TRIPS Agreement

Provisions far exceed international minimum standards

U.S. Digital Millennium Agenda and Sonny Bono

Copyright Act extended beyond its borders

Goes to heart of education, development and economic

policies of developing countries

Impact of TRIPS-PlusImpact of TRIPS-Plus

Extra 20 years copyright protection

Distorts traditional balance of interests

Has serious affects on – Education

Research

General access to information and knowledge

Development policies

Outflow of currency – huge economic burden

Shrinks the public domain

Vibrant public domain necessary for new creations

Rights owners control from the grave!

TRIPS Plus & Public healthTRIPS Plus & Public health

DOHA Declaration

TRIPS must support countries’ public health objectives

CIPR encouraged compulsory licensing & generic competition

TRIPS-Plus erodes TRIPS exceptions

Limits generic competition & restricts exports

Expands patent protection

Restricts exclusion of inventions for patentability

Public health and millions of lives at risk

African countries must adopt DOHA and TRIPS flexibilities

Anti-circumvention technologiesAnti-circumvention technologies(DRMs)(DRMs)

Exceed WIPO obligations

Eliminate fair use and stifle research

Block text-to-speech software

Create monopolies over devices that

handle digital media

Lock up indigenous knowledge

Affect software industries & open access

Regulate Internet Service Providers (ISPs)

Should Africa adopt TRIPS-Plus?Should Africa adopt TRIPS-Plus?

No – it would affect fair use, legitimate library and

archival functions and research

Compromises public health & development policies

Undermines democracy and national sovereignty

Contradicts the will of the public

Legal flexibilities would be overridden

Far less access to global knowledge

IP cannot be an end in itself

Rather support Development Agenda and A2K Treaty

Copyright initiatives Copyright initiatives

eIFL.IP - www.eifl.net

Commonwealth of Learning – www.col.org

COL Copyright Document = www.col.org/programmes/infoknowledge/CopyrightDoc_200505.pdf

SARDEC - www.sardec.org.bw/

More copyright initiatives More copyright initiatives

ACAIA - www.nlu.go.ug/acfconf.htm (own website will be created)

African Digital Commons - www.commons-sense.org/

Creative Commons - www.creativecommons.org and new website – icommons.org

Why should Why should librarians be concerned?librarians be concerned?

Committed to freedom of access to information and free flow of information

Support balanced copyright

Restrictive copyright laws impact on their core business

Challenges & RecommendationsChallenges & Recommendations

Librarians must -

Take up the challenge!

Must organize and mobilize at all levels

Must lobby national governments to – – review copyright laws and adopt legal flexibilities;

– resist TRIPS Plus

– support WIPO Development Agenda, A2K and other initiatives

Challenges and Challenges and Recommendations (cont’d)Recommendations (cont’d)

Restore the balance

Consider legislation for “Orphan Works”

Open public-funded research to the public

Establish alliances with international organizations

Work together to find a copyright solution for Africa

Let’s start right now!!

Thank YouThank You

Denise Rosemary NicholsonSA Representative for eIFL.net

and

Copyright Services Librarian,

University of the Witwatersrand, Johannesburg, S.A. Nicholson.D@library.wits.ac.za

Phone: +27 11 7171929 – Fax: +27 11 403-1421www.wits.ac.za/library/services/copyright