Stricter laws will not solve the Guyanese problem of copyright infringement

Sep 11, 2008 Letters

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DEAR EDITOR,
In an effort to promote a balanced, reasoned view of the Intellectual Property Rights issues affecting Guyana at present, and in response to the editorial in the business page of the SN of Friday August 29, 2008, I wish to proffer the following comments first published in the SN of April 12, 2008, and the Kaieteur News of April 13, 2008.

The issues of intellectual property rights and the laws applicable to them in Guyana have become quite sore and there is some discussion which bears heavily toward the supposition that the mere enactment and enforcement of stringent modern laws will either completely eradicate the infringement of such rights or significantly reduce the practice.

Indeed one may easily provide statistics from around the world which indicate that this is so and come to the conclusion that this approach, when applied in Guyana, will have the same effect.

The enactment of new legislation which does not balance the needs of the society with the requirement to protect the rights of those persons who have invested their time and energy and skill in the creation of works entitled to such coverage will create greater frustration for both intellectual property holders and the consuming public.

This is because the issues which affect Guyanese are far more complex in many instances than the societies from which these statistics in favour of the enactment and enforcement of stricter laws have been extracted.

I would submit that the circumstances within which the Guyanese society is encased require far more sophisticated and creative solutions which will create a greater balance between the needs of the society and the rights of the property holders.

I wish to refer specifically to the complaint in the newspapers by the owner of The Austin’s Bookstore concerning the continued production of cheap copies of textbooks which can be found on the streets of Georgetown and at several other popular locations, in which complaint he sought to rely on the illegality of the practice as a reminder of the consequences of unlawful acts and to exhort parents to use better moral judgments in setting examples for their children.

The present law on this issue is clear and the International Conventions by which Guyana is bound also speak aptly to the rights in this area.

I am aware that the relevant legislation and conventions have been outlined by Mr. Brynmor Pollard SC. in a letter to the Kaieteur News in the edition of April 8, 2008, and find it unnecessary to engage in any lengthy recitation of the law at this point.

Mr. Austin’s complaint, though justifiable at law, finds a much less sympathetic audience in the ordinary consumer whose only concern is to make ends meet in economic circumstances which can at best be described as stifling, and who purchase bootlegged textbooks not out of any inherently evil intention to break the law and simultaneously to deprive copyright holders of the fruits of their labour, but because they must balance the cost of educational materials for their children against the provision of food, clothing, shelter and other basic necessities.

The price of the average booklist which comprises only legally produced textbooks can normally amount to more than the average public servant’s salary.

Immediately evident are the two competing interests of what amounts to survival of part of the necessary lifestyle of the general consumer, as against the rights of huge book producers whose only interest is the sustaining of their business and the necessary profits. In this balance of interests, local booksellers must lose to bootleggers.

I will reiterate here my earlier statement that stricter laws and law enforcement will not by themselves solve the Guyanese problem of copyright infringement. What is needed are practical solutions which will create greater balance between the competing interests.

I would submit that one way to do this is for the Government, through its Ministry of Foreign Trade, to seek licensing agreements with the major text book producing companies for the production of low cost editions of the textbooks to be done right here in Guyana.

It should be quite obvious that consumers are mostly interested in the content and not the packaging of these books, and that glossy covers and stitched bindings are hardly a consideration in their choice of purchase.

This approach will provide the op portunity for local printers to expand their businesses and create more employment opportunities.

Since the issue of bootlegged textbooks is not a ‘Guyanese Thing’ but a Caribbean wide situation to greater or lesser degrees, it is quite possible for Guyana to become a major producer and exporter of these low cost textbooks.

Booksellers, consumers, copyright holders and society’s morals on this issue will enjoy a significantly better relationship in such a situation.

The balancing of interests through such methods is the only way which will allow law in society to work effectively and is recognised in the English law under the Copyright, Designs and Patents Law of 1988 Sections 32-44, which allow for copies to be made for educational and cultural purposes with some restrictions as to their production and use.

These are part of the so called fair dealing rules which recognise the need for reasonableness in the use of copyright materials.

It is to be hoped that any new legislation in Guyana will consider the need to balance the competing interests in our society.

I wish to add that while the Hansib proposal seems a viable one, careful consideration must be given to all the issues attached to exclusive rights of republication, whether or not the publisher is Guyanese, and that there needs to be an urgent review of the proposed legislation in order that the important elements of reasonableness in the use of copyright materials and the use of Alternative Dispute Resolution, in the forms of Mediation and Arbitration might be included in the legislation as part of the mechanism of dispute resolution.

In view of these developments, I would urge that a committee be established as soon as possible to deal exclusively with these matters and to bring much needed relief to this problem.
Abiola Inniss, (Ms)
LLB, LLM (Business Law) Aminstcm UK

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