IN this 56th instalment, we advocate and seek to lobby all stakeholders to ensure the entrenchment of intellectual property rights (IPRs ) in the new people-driven constitution.
Report by Richard Pasipanodya
By definition, intellectual propertyrefers to is the subtle, yet profound, creative ideas that underlie and reside in the unique objects of human creation. In a nutshell, they are the intangible creations of the human mind or intellect.
In this context, whereas the creative ideas are embedded in the human intellect, they are given tangible expressions by conversion into tradable products in which they are embodied. In the aftermath, all the tangible products and facets that grace our daily lives are the ultimate expression of sublime human ingenuity towards meeting and satisfying unlimited, existing, long- felt and future human needs and wants. Thus these sublime creative ideas need to be safeguarded through intellectual property rights (IPRs) protection.
In this context therefore, IPRs are the basis of the final products of our lives which logically must be accorded their primacy in protection over the resultant tangible objects. For, it cannot be denied that as products of intellectual creative ingenuity, they are thus derivatives or secondary to the creative ideas that make them up. Therefore it makes sense to explicitly enshrine and entrench IPRs in our Constitution.
In creating us, the Almighty God blessed us all with some unique talents, each according to our given abilities. This creative talent is bestowed upon each one of us to create wealth for the betterment of our societies. As such, creative potential and talent that eventually may become intellectual property are God-given.
In this context, they constitute a divine right which is both inalienable and inviolable. This transcends or goes beyond the fundamental. And again, in terms of scriptures, it goes without saying that IPRs by their very nature hold primacy over tangible property rights, which in essence are mere expressions thereof in tangible form. In this Biblical context they should be rightfully be enshrined and entrenched in the new constitution.
Nature and Scope
Given that our talents are divinely given, it naturally follows that IP creative potential is not limited to any specific fields, but pervades the entire spectrum and spheres of human, cultural, socio-economic endeavour including agriculture, mining ,manufacturing, pharmaceutical, healthcare, environmental, tourism, communication, distribution, services, education, science, sport, entertainment etc. As such, the entire breadth and depth of human endeavour is subject to enquiry by one or more branches of IP phenomena.
Functions of IP branches
Patents: relate to the protection of inventions in any field of human endeavour. These are new solutions to technical problems or technological improvements not previously known.
Utility models: are of lesser technical improvement than patents, in particular as regards the degree of requisite innovation, which may altogether be absent.
Industrial designs: are protected for their aesthetic appeal, which not only satisfies the consuming public‘s desires and egos, but sell their owner’s wares.
Trademarks: are signs which distinguish between products and their proprietors, thereby assisting to diminish deception in trade. They also serve in trade as symbols that denote guarantee, quality, quantity and price. They are potent advertising and selling tools in as much as they are agents for the creation of repute, goodwill and customer retention.
Copyright: Its importance lies in the promotion of cultural, educational and scientific progress through the dissemination, cross fertilisation, acquisition and diffusion of ideas and knowledge.
Traditional knowledge and expressions of folklore: conserve cultural heritage and promote social cohesion and identity.
Unfair competition rules: have had as their purpose the creation of fair and equitable trading environment through the creation of acceptable standards and norms in a world where people perceive their needs as unlimited against global limited resources.
New plant varieties: no doubt serve to enhance agricultural output, productivity, quality and range of food products towards the elimination of hunger and poverty.
Therefore, nurturing creative talents in all these fields of human endeavour is of vital importance and as such the need to constitutionally entrench these is beyond doubt.
The protection of IPRs has several derivative benefits in that, inter alia, it; allows the proprietor to set up and develop their products without the fear or threats of diminished returns from inferior pirated products; cements customer loyalty; increases profitability through sales and royalties; expands and maintains market value and inspires further creativity. Thus, constitutional entrenchment of IPRs assures IP creators and potential investors of security.
Increased creativity and innovativeness no doubt results in increased volumes, range and quality of available products on the market at affordable prices for all categories of consumers and end users, hence the enjoyment of life. Apart from eradicating hunger and poverty, it guarantees ever improved standards and quality of life for all generations, contemporary and posterity and anibinitum.
Creation of innovative culture
Constitutionally-enshrined and entrenched IPRs protection leads to the crafting of appropriately IP-integrated policies and legislative frameworks. This creates a conducively-sanitised operating environment, hence an adequate and effective IPRs protection system.
In turn, this stimulates and promotes sustainable creativity, knowledge acquisition and dissemination, hence future technological reserves.
It is universally acknowledged that a nation’s brains are its most prized possession for socio-economic growth and development. The more potent the creativity, the brighter the prospects for its vitality and prosperity, and with it employment creation, investment promotion as well as the proliferation and betterment of opportunities for its citizenry.
Acceding to IP instruments insufficient
Merely acceding to regional and international IP instruments is insufficient as this per se does not guarantee any commitment and political will to entrench IPRs protection. If anything, these will remain the privy of the representative organs without the downward infusion of the inspirations contained therein to the various stakeholders.
Constitutionally entrenching the spirit of the instruments, as has been done with the Bill of Rights, makes the people appreciate their value in IP creative potential. It will make them aware that their IP creations are fundamental rights.
Following a protracted civil war, 12 US Federal states did introduce IP protection in the first US constitution adopted in 1787. This means the USA has more than two centuries plus 30 years of constitutionally-entrenched IPRs provisions.
No wonder it is a technological giant, IP-conscious, proactive and aggressive nation with very comprehensive laws. After 90 years of British colonial rule, India did in its 1950 Independence Constitution introduce IP protection with respect to competition, copyright and related rights, industrial designs, patents, trademarks, traditional knowledge and expressions of folklore.
Again, no wonder it is one of the BRIC countries.
After its calamitous experiences with World War II, Japan infused IPRs protection into its constitution. Now it is an undisputed technology powerhouse. Pursuant to cessation of hostilities in 1990, South Africa did craft an Independence Constitution which entrenches IPRs protection in tandem with making comprehensive national IP laws. This process was subsequently extended to various fields of IP. Now South Africa is also a BRIC country.
Zimbabwe must do the same and now is the opportune time. We have both enviable human and natural resources within the region. It would be self betrayal to miss this golden opportunity now. Come on, let us do it for our future generations.
Pasipanodya is an IP consultant who writes in his own capacity.