Regionalized Protection of Intellectual Property Disharmonizing Trends in Intellectual Property Regimes

REGIONALIZED PROTECTION OF REGIONALIZED PROTECTION OF INTELLECTUAL PROPERTY DISHARMONIZING TRENDS IN INTELLECTUAL PROPERTY REGIMES By Faizan M. Warraich LLB (Hons.) American Legal Studies (Birmingham) LLM Business Law (Birmingham) After the inauguration of Paris and Berne Conventions, and later on formation of international organizations and treaties such as WTO, TRIPS and WIPO every step has been taken to create harmonization or greater uniformity in the intellectual property protection laws throughout the world. But while these efforts are made, there is at the same time an increasing sense of dissatisfaction on these laws between developed and less developed countries. These stringent laws certainly deprive the less developed countries from free access of much needed information, knowledge and do not take into consideration their abilities, interests and cultural differences. Recently it has been seen that access to medicines or patented formulas for medicines is in severe need in developing countries and governments have often breached IP right protections in order to make available cheap medicines for their local population. Some examples include India and Brazil where HIV patents are reportedly breached and cheap local medicines are produced. Furthermore, there is strong criticism on the TRIP's agreement that it is not well equipped to handle latest Internet and communications technologies. With such realistic scenario on the ground, the step taken by less developed countries certainly harm the harmonization process intended to work. Two different blocks are made now, where developed countries are using bilateral and plurilateral trade agreements to pressurize less developed countries. And at the same time insertions of practices such as mass-market contracts and technological self help measures have certainly harmed the issue as well. Peter Yu (Currently the Editor of WIPO magazine) considers five major trends that are in modern times leading to major disharmonization and if not dealt with in an effective manner, will definitely lead to chaos and failure of all previous treaties made for protection of intellectual regime. (1) The inclusion of reciprocity provisions in national laws. (2) The demands for diversification, (3) The use of bilateral and plurilateral agreements, (4) The creation of non-national systems as a response to Internet disputes, and (5) The reliance on alternative measures by rights holders. Non-discrimination is one of the bedrock principles of the IP protection rights, and this has been stressed upon so much in every treaty. The minimum a country can do is to offer equal protection to their fellow States when doing international trade. This is certainly not a new issue and not something out of the blue. Countries have had such disagreement before, in fact during the Berne Convention; such a proposal was raised in the name of "German Proposition." But it was voted down, which failed to notice the concerns of certain States. But this did not stop here, and many States introduced such discriminatory laws. In 1984, USA incorporated such an act offering sui generis protection to the layout designs of integrated circuits or mask work. And in order to achieve success in this act, the State only granted protection to these foreign-manufactured circuits, which had similar protection chips as, made in USA. Actions were taken by the international bodies to intervene and solve these differences. On the face of it, these steps failed drastically but one good thing came out of it, which was agreed and incorporated in TRIP's is that, "all member States of the World Trade Organization ("WTO') are required to prohibit the unauthorized irnporting, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit on/y in so far as it continues to contain an unlawfully reproduced Layout-design." Similarly, EU enacted directives on legal protection of Databases, granting sui generis protection to databases created by a "substantial investment" by the creator. At the same time, another issue due to this reciprocity clause was of the granting of the "Most favoured nation (MFN)" status to their trading partners. This caused a great concern in many countries, which had cultural differences, where trade may be acceptable but acknowledging such , statuses might not be. An example of it is of India and Pakistan, both are big markets with massive trading potential, but their historical differences and 3 wars in the last 5 decades hurdles them to give MFN status to each other. It has been discussed a lot over the period of time but again and again governments are pressurized by the public policy not to take such actions. When discussing the second issue here. the demands of diversification, this is related to less developed countries. They feel threatened by the advance technological and creative process in developed countries and it is natural to feel that it cannot be competed with. Where harmonization creates a balance between the economics of governance and administration, and provides safeguard against destructive protectionism but at the same time it limits the prospects of third world countries to advance. Instead of creating uniformity, economically it is increasing the gap between developed and less developed state's, by letting developed counties cash out on their advanced knowledge and facilities and less developed countries always paying for what they in fact could produce themselves, given half the chance. While discussing the issue with Mr. Majid Bashir (WIPO Consultant for Pakistan) he alternatively took a more localized approach and evaluated the situation more in a regional context, rather than internationally. He considers IP rights to be a new and young concept in many countries and instead of talking on international level, these rights should be promoted first in the regional blocks. "Regional based protection of IP will not only benefit the masses, but the international trade as well." An example of this can be introducing provisions in SAARC (South Asian Association for Regional Cooperation.) Mr. Bashir considers it to be an excellent platform for experimenting with IP laws e.g. with Afghan war victims, recent tsunami and earthquakes in the region. Historically, SAARC holds some of the strongest emerging economies of the world, and the strongest in the region, but so far this organization cannot be called more than a mere puppet organization. No valuable and groundbreaking cooperative measures have been taken by this organization and considering its competitors, EU G-8. G-20, SAARC can be seen considerably back logged. A reason for this may be that the lead focus is on social cooperation rather than economic cooperation. It is high time that the SAARC broadens its scope and as a tipping toe in economic cooperation starts with Intellectual property rights and their harmonization in the region, following the example of African Union. What in my opinion needs to be done here is to sit back and acknowledge the needs and differences of different member States rather than using in Duffy's words, "one size fits all" technique. Jurisdictional competition should be promoted and help should be provided to less developed countries to develop legal system and challenging and encouraging economic policies. This kind of leniency and charitable attitude was seen during Doha Rounds, where an extended transitional period of 10 years was given to less developed countries to incorporate protection laws regarding pharmaceuticals. As discussed earlier, the use of bilateral and plurilateral agreements to enhance their positions to be in a stronger bargaining position as well as to avoid any discrepancies in the process. Robert Zoellick opined on this that, "the "can do" countries from the "won't do," and it "will move towards free trade with [only] can-do countries." Similarly, the issues regarding the creation of non-national systems as a response to internet dispute is equally as important as the reliance on the alternative methods by right holders. Many countries are not fully equipped to even consider new technological protections due to lack of, infrastructure and required knowledge, so they have to rely on the principles of convergence. There is no doubt that IP right should be protected and there should be stringent safety guidelines to do so, but at the same time, disharmonizing issues as stated above need to be addressed effectively as they not only involve major stake holders of tomorrow but also major contenders in the economic and financial market.