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Moulding intellectual property laws to developing country needs

Kamla Persad-Bissessor
Minister of Legal Affairs, Trinidad and Tobago

'The challenge we face is to ask ourselves whether the protections we are providing are appropriate for the needs of the developing world'

The development of intellectual property rights world-wide is at the cutting edge of what constitutes sustainable and acceptable development to both the developed and the developing world. Put simply, development is about the transfer and utilization of knowledge to improve the quality of life of a society, whether it be developed, developing or undeveloped.

Throughout the twentieth century, the less developed nations have been frantically trying to acquire the techniques and technology of the developed nations, in order to create a lifestyle comparable to that of the highly developed countries. But in the rush to seem developed, developing nations may unfortunately have emphasized the acquisition of consumer durables, rather than building the infrastructure that could have sustained further development.

In doing this, the developing countries took on the products of the research of the developed nations without doing the research themselves. In fact, in breach of established intellectual property rights, many developing nations felt free to borrow, copy and plagiarise the knowledge or the products of the developed nations.

In excusing the developing nations for their seemingly cavalier attitude, one could perhaps say that when humankind was less sophisticated and lived in a less technologically developed state, the basic need for food meant that the value of producing crops for sale or barter was easily recognised. In contrast, it has taken us much longer to recognise that the products of the inventiveness, creativity and imagination of the human mind are unique, and have a value which is tradable and capable of protection.

Whereas in the developed countries the growth in intellectual property protection occurred alongside, and perhaps as a response to, technological and other developments, in the developing countries, intellectual property protection has in a sense been imposed by the need of the first world to protect its own interests and investments. It is almost incidental that at the same time, local artistes, inventors and entrepreneurs have received a protection they might not otherwise have had until a much more advanced stage of development.

This provides an interesting challenge to the legislators of developing nations, in order to ensure that model legislation provided obligingly by the world Intellectual Property organization (WIPO), while ensuring international standards, is also appropriately tailored to the needs of local creators and inventors. This may mean that certain provisions have to be modified, or that new areas of protection must be developed within new legislation.

Given the different issues for the development and enactment of intellectual property protection legislation in different parts of the world, it is hardly surprising that at times there may seem a conflict between the various interests that need protection. When you give that protection, there is a balance of interests involved.

Let us be frank. One of the questions raised about such protective legislation in the developing world is the extent to which it benefits monopolistic and monolithic foreign corporations at the expense of the developing state and its citizens.

Should we still be thinking in a limited "he invented it" or "she grew it" or "they found it", for example, about the development of plant varieties, especially those found in foreign climes, transported elsewhere and then grown commercially for use in pharmaceuticals? Alternatively, should we be thinking more about a developing nation's rights to benefit from its natural resources, such as its enormously diverse plant life?

At present, developing countries are passionately protesting that scientists from multinational corporations are prospecting for plant species in their tropical forests, protecting discoveries through breeders' rights, and then selling the plants back to them at exorbitant prices. This is the challenge that we face. To developing countries these practices constitute uncompensated exploitation of their plant genetic resources in the name of intellectual property rights.

The questions that arise are whether developing countries should pay for new plant varieties developed by western seed companies from species obtained in the Third World, whether plant genetic resources should be commodities, and if so who should have the proprietary rights.

The challenge we face is to ask ourselves both whether the protections we are providing are appropriate for the needs of the developing world, and also whether, if model legislation is adopted wholesale, it can impact fairly on the developing country's citizens in the context of the need for general development.

New legislation must strike a balance between a variety of competing interests. There is the protection of the owner of the original IPR; the protection of the consumer from monopolistic exploitation; the need for the entrepreneur and new licensees to enter the market place as equals with existing right owners; and the need to encourage further innovative research that will in turn fuel further world development.

This article is based at a paper delivered to a workshop organized last September by the Caribbean Academy of Sciences in Port of Spain, Trinidad and Tobago as part of the academy's tenth anniversary celebrations. The conclusions of the meeting have been published as the Caribbean Communiqué.

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