Intellectual Property Rights: A Part of the Problem? Eliamani Laltaika Open A.I.R. Fellow

What is intellectual property? All Property can be grouped into three main categories: (a) movable property such as cars (b) immovable property particularly land and things fixed on it such as houses (c) intellectual property i.e. property emanating from creations of the human mind “intellect”

Intellectual Property rights Trade marks, patents and copyright materials are the main types of intellectual property rights Other branches of IP include design, database, semi conductor topography and plant breeders rights, rights over trade secrets, confidential information and other rights that prevent or redress specific acts of unfair competition.

Intellectual Property Cont… A list of “intellectual property” is given by the Convention establishing the World Intellectual Property Organization (WIPO): i) literary, artistic and scientific works (ii) performances of performing artists, phonograms, and broadcasts (iii) inventions in all fields of human endeavor (v) industrial designs vi) trade marks, service marks and commercial names and designations (vii) protection against unfair competition

Why Protect Intellectual Property? Two main theories used to justify legal protection of intellectual property rights (IPRs). Utilitarianism Labor theory of property

The territoriality principle As a general rule, all IPRs are territorial in nature, i.e. The rights granted are limited to one country. However, IPRs exploitation is crossboarder As a result two International Conventions were entered upon to recognize IPRs outside ones country These are the Berne Convention for the Protection of Literary and Artistic Works of 1883 and the Paris Convention for the Protection of Industrial Property of 1883 Both of these treaties underscore the principle of National Treatment

The concept of biocultural heritage bio-culture is a relatively new term that presupposes the link between biological or living resources, culture and knowledge of the people Biocultural heritage is the totality of living and non living resources and the knowledge and cultural attachment of a people to such resources.

Challenge 1 Conventional IP vs Indigenous heritage The current IP landscape is based on western tenets „Individual rights“. This is in contrast with Indigenous/ customary law „collective rights“ Eg copyright law and folk music: identifiable author? fixation? Duration?,

Challenge 2 Missapropriation and biopiracy Copyright: “A“ goes to Village “Z“ records a song goes back to country “B“ and makes an album “A“ is the copyright holder Patent: “C“ goes to Village “D“ learns of the use of plant “E“ for treating ailment “F“ takes such genetic resources and develop drug “G“ and obtain a patent Trademark/branding Use indigenous symbols and even photos

Challenge 3: Stronger IPRs for whose development? 1995, WTO‘s Agreement on trade related aspects of intellectual property (TRIPS): championed by USA, EU & Japan Developing countries do not see the benefit of stronger IPRs Access to medicine for the poor became even difficult

Towards rectification? 1 Establishment of WIPO‘s IGC Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) Established in 2000 after a study on needs and expectations of traditional knowledge holders Has already met TWENTY THREE TIMES in 10 years Has reached “text-based“ negotiations stage There is HOPE for international legal instrument(s) to protect TK/TCEs

Rectification 2: WIPO development agenda 2004, A proposal by Argentina and Brazil to the WIPO General assembly to “take immediate actions in providing for the incorporation of a ‘Development Agenda‘ in the organizations work One size fits all?: It is now possible to investigate actual impact of IP and accomodate interests of developing countries.

Complementarities and synergies? “[C]ommon law and other Eurocentric legal concepts have proved to be more flexible and responsive to the legitimate concerns of indigenous people than conventional wisdom might suggest….” Justice Ronald Sackville High Court of Australia Collective trademark, Geographical Indications, and even design, copyright and patent COULD be of help

Open A.I.R “Polarized views on how IP facilitates or restricts innovation and creativity persists because there is little emprical research on this topic. Open A.I.R. Will address this gap by objectively exploring ways in which the African intellectual property systems that govern knowledge can work better as tools for open innovation and collaborative creativity and then train key public and private sector actors to use these newinsights effectively“

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