IN this 54th installment, we explore the potential inadequancies in the harmonised implementation of the Agreement on Trade Related Aspects of Intellectual Property Rights (Trips Agreemet).
The Trips Agreement was crafted with a view to providing for a comprehensive international instrument for the global harmonisation of intellectual property rights (IPRs) protection. It did so by incorporating key provisions of exsisting instruments which before then were loosely binding on those technologically rich developed countries.
Most developing countries were just emerging from colonial bondage and thus had no clue about activities on the global arena.
In the process of incorporating the then existing instruments Trips further sought to achieve global harmony through amplifying certain provisions and setting minimum standards of protection. It also acknowledged the socio-economic and legislative deficiences of developing and least developing countries, hence sought to somewhat accommodate their shortcomings, needs and aspirations en bloc.
The overall view to be derived from such a setting is thus one seeking to up shouldering valleys to the same altitude with plateaus, hills and mountains. Thus, the Trips Agreement was inevitably bound to carry inherent inadquancies towards its fully harmonised implementation by all countries of the world. And this impedes the desiderata of technology transfer and dissemination.
Transitional arrangements implications
Article 65 Transitional Arrangements of the Trips Agreement expressly rather than tacitly acknowledges the technological and legislative capacity challenges as facing developing countries, countries under socio-economic transformation from centrally planned to market economics and least-developed countries (LDCs) respectively.
Developing countries and countries under transformation which were lumped together as sharing more or less similar challenges and possessed of similar technological bases and intellectual protection systems were given a grace period of five years before implementing Trips obligations. That is to say, since the Trips Agreement became effective on January 1 1995, this category of countries were only obliged to observe and implement Trips obligations effective from January 1 2000.
Additionally, a further five-year reprieve was granted with respect to product patent protection to areas of technology not so protectable under each territory. By implication then where a country did not protect ( say pharmaceutical, medicinal or agricultural patented products) a grace period of 10 years up to the year 2005 of not observing Trips obligations with respect to these products was granted. Meaning that country was at liberty to manufacture, use, distribute, import these products with impunity.
This is where most developing countries went into a slumber and lost the golden opportunity to strengthen and bolster their ailing economic sectors. India though went tigerish and bullishly bolstered its phamaceutical and electronic sectors.
Least developed countries were extended an even longer grace period to implement Trips obligations of ten years extendable upon request. Thus meaning Trips obligations were only applicable in LDCs from the year 2005 at the earliest. This was in recognition of the special socio-economic needs and requirements for a flexible environment to create a viable technological base. Morever, LDCs were considered as by and large lacking in IP systems. Because of this, developed countries were beseeched to incentivise their enterprises and institutions to promote the LDCs in building these capacities.
The inadequancies of the Trips transitional provisions lies firstly in their ambiguity against an amateurish, green and illiterate camp of potential beneficiaries. A clearer amplification and simplification of these provisions was absolutely necessary if these provisions were to take the effect they were intended to.
Ongoing plenary sessions and explanatory notes should have been undertaken immediately after adoption and post the effective date of application of the Trips Agreement. Such an exercise would have awoken the countries to the coffee before them and avert the loss of opportunities. Also why place the onus of technical assistance on a willing basis instead of making it obligatory. This leaves the issue of global harmony to exposure and scepticism.
Article 41 (5) sipulates that the obligation for enforcement of intellectual property rights does not create any obligation for Member States of the World Trade Organisation (WTO) to put in place a separate judiciary system distinct from existing systems for the enforcement of law in general in view of the paucity of resources that perpetually bedevil developing countries.
It is thus a bit confusing that Article 61 criminal procedures expects the very same burdened countries to have the capacity to monitor, detect, arrest, prosecute, incacerate and provide for the inprisoned offenders from state coffers when these are struggling to keep ordinary crime levels for lack of resources. Certainly this is a very tall order for those in impoverished countries.
Besides, these same countries do not have the capacity to train and equip the relevant state agencies, including the judiciary, police, prison, offices and customs authorities. With their acknowledged low levels of IP consciousness it is very difficult to secure a conviction against most of the offenders as they would almost always plead ignorance of IP protection of the products. For, Article 61 talks of wilful counterfeiting and piracy — meaning that intent or gross negligence has to be proved to secure conviction. This is made worse by the advent of the digital environment.
Under the circumstances it would not have been prudent for Trips Council to create and manage a fund towards assisting the developing countries in IP empowerment and capacity building in these areas. Yes, obligation it may be but these countries find it as protecting foreign citizen’s interests from public funds while failing to meet national emergencies in combating endemic diseases, hunger and poverty. This provision should at least have placed the rights holders in the forefront of initiating and funding the prosecution of infringers. Otherwise piracy and counterfeiting will continue to ravage intellectual property protected products and processes.
Special border measures
These provisions as contained in Articles 51-60 are very elaborate yet cumbersome to implement and enforce with any meaningful success.
The provisions place the initiative to institute civil proceedings on pirated or counterfeit products on the rights holders. Herein lies the inadequancies. How many rights holders would be physically present to monitor and detedect their pirated or counterfeit products at each and every border entry and domestic channels of distribution of each and every country of their investments let alone collect sufficient evidence to sustain a prima facie case?
We also have attendant thereto the degree of knowledge, IP skills and competencies of the relevant authorities to handle such matters, to consider.
Moreover, there is the issue of security or equivalent to sufficiently protect the competent authourities and defendants in the event of abuse of the legal system by the rights holders. We also have to consider the storage costs of seized products or those lost through destruction, theft, and fire should it then transpire that the defendant is exonerated or proven that applicant is bogus. How about the damages arising from criminal defamation as a result of wrongful detention of the products?
Whereas we do not advocate for the removal of these provisions we instead urge member states to request their review in a bid to make same user-friendly and effective. A bit external funding and capacity building would be noble considerations.
Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: mobile +263 775053007, or e-mail: email@example.com