IN this 54th instalment we explore the inadequacies of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) with respect to equitable technology dissemination and acquisition.
Report by Richard Pasipanodya
Contextual background to TRIPS
The mutual suspicions that characterised the protracted negotiations leading to the conclusion and adoption of the TRIPS Agreement were unavoidable given the dichotomy in technological capacity and development among the negotiating parties.Whereas developed countries possessed huge reservoirs of technological capacity as well as legislative experience and exposure, developing countries lacked both IP-consciousness and legislative capacity. The legislative instruments developing countries inherited from various colonial legacies were wholly unsatisfactory in that they were essentially re-registration systems of foreign-owned and sealed IP titles whose concepts promoted foreign interests at the expense of local creativity.
From the foregoing, the technology-rich developed countries were naturally the proposers, while the technology-poor developing countries were the respondents to the negotiations. In their weakened position the developing countries were apprehensive of wholesale minimum standards of IPRs protection, which they feared would not be in their best interests. IPRs protection would not only force them to adopt policy orientation but would affect their socio-economic developmental aspirations. This is because protection would make protected technologies expensive, hence inaccessible to locals. In the aftermath, the TRIPS Agreement was a compromise agreement foistered on the uninitiated and less sophisticated developing countries.
Balancing three conflicting interests
Distilled from the TRIPS objectives’ Article 7 are conflicting interests of three parties, namely; the creators of IP tools and assets, the consumers or end-users, and society at large. It is with this in mind that the TRIPS objectives’ attempt to strike a balance of interests by stating that the purpose of protecting IPRs shall be to promote technological innovation and to transfer and disseminate technology in a manner mutually beneficial to all three stakeholders.
In this sense the TRIPS Agreement objectives seek to reinforce the long-held perception that IPRs protection stimulate innovativeness and creativity, hence knowledge diffusion and acquisition, investment promotion, and wealth creation, culminating in socio-economic growth and development. This is only made possible by rewarding technology creators with effective and adequate IPRs protection. As such, IPRs protection is viewed as a reward which incentivises everyone, from creators and users of IP products to the public at large.
Objectives of IPRs protection flawed
However high-sounding the TRIPS objectives may appear, they remain inherently flawed in various aspects of unforeseens. They are essentially presumptive. They tend to portray a world of all-IP-conscious nations whose technological and legislative capacities are unquestionably up to date. In the aftermath, the TRIPS Agreement fails to adequately capture the various defiencies of developing countries in the key aspects that follow.
Technological innovations promotion
Outside South Africa,there is abysmal lack of adeqaute IP-consciousness levels on the African continent. The education systems in most of its countries have for long churned out a technical workforce as opposed to entrepreneurial graduants. Hence innovativeness was deliberately not part of the curricula diet. As a result thereof IP remained esoteric and untaught to the majority of scholars and maintained its elitist status for the privileged few. Thus, to the extent that TRIPS loses sight of this cornerstone requirement, the promotion of technological innovation in developing countries shall remain a far cry for quite some time.
Technology dissemination and transfer
There certainly will not be meaningful technology transfer and dissemination among parties with different capacities to understand and appreciate the subject matter of transactions. As long as the subject matter of protection remains esoteric and couched in abstract terms, there is no way the party from a developing country would meaningfully understand the subject matter and negotiate equitable terms for the acquisition of needed technology. Besides, the contractual negotiators would in almost all instances be outwitted for lack of knowledge, skills and competencies to strategically negotiate. It would be short-changing or ripping off all the way. For, my countrymen will be devoid of the ability to properly valuate the IP products before them.
Appropriately integrate IP policies
For appropriate technological innovation, acquisition and dissermination to take root there must be appropriate IP-integrated strategies both at national and sectoral levels. As it stands, the very policy makers who in all instances are party to the negotiations, are IP-illiterate. Our abated hope though lies in future generations. For now, all indications are that the current crop of negotiators and policymakers does not only lack sufficient levels of IP-consciousness, but the much needed vision and strategies.
Incentivised IP laws
Our IP laws are devoid of homegrown legislative focus. They remain replicas of our colonial past, blended with largely not-understood international legislative norms without more. For instance, whereas we are net consumers of technology, our laws are couched as though we are IP-creative powerhouses on the same footing with countries as the UK, USA, Germany, Netherlands, Switzerland, Japan etc. We do not even provide for the lesser rung of innovativeness such as utility models protection. We seem to be content with perpetuating and fostering a consumerist hegemony for eternity. We need legislative innovativeness which suits our IP needs, aspirations and expectations.
IP system shrouded in mystery
Both the local and international IP systems remain shrouded in mystery to the majority of potential users. While the basic theory of the patent system is that the state grants the inventor exclusive monopolistic rights over their inventions for a limited period of time, in return for their disclosure of the invention so that the public at large would be able to emulate the invention at the expiry of protection, the public remains uninformed of this purported social contract.
Even the publication of the registerd patent is practically a preserve of the IP office, the practitioner and the owner, to the exclusion of the public for which the publication is meant to benefit. It is also a fallacy that patent disclosure facilitates technological innovation, acquisition and dissemination. Publication or disclosure of this technological information remains technically inaccessible to the intended public beneficiaries.
TRIPS hidden treasure
Though the TRIPS Agreement contains certain provisions that accommodate developing countries’ peculiar and unique circumstances, it remains a hidden treasure in that by and large:
- Not many members of the public are aware of its existence, let alone purpose;
- Its provisions remain too technical and shrouded in legalese for the common man to understand, interpret and implement;
- Very few stakeholders are aware of the existence of TRIPS flexibilities, let alone how to invoke and implement same;
- Many a developing country has not taken advantage of the transitional arrangements due to lack of knowledge of their implications, nature, scope, applicability and capacity;
- The technical cooperation from developed countries is made purely on a willing parties basis and on terms and conditions set by the developed countries — far from redeeming isn’t it?
- Abuse of rights by patentees remain rife due to lack of monitoring capacity to curb same;
- True to the developing countries’ apprehensions, minimum standards are too stringent and are impediments to technological innovation, acquisition and dissemination as the price tag is prohibitive, and
- Succesive amendments and annotations to date have not provided resolute positions.
Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: mobile +263 775053007, or e-mail: firstname.lastname@example.org