DEVELOPING COUNTRIES NEED TO BE CUT SOME SLACK

Oct 29, 2012 Features / Columnists, Peeping Tom

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There are two myths about intellectual property rights that must be debunked. The first is that international copyright laws are accommodating to the interests of developing countries; the second is that these laws actually help to promote the welfare of society.
None of these two premises have ever been satisfactorily established. Copyright laws are woefully inadequate to the interests of developing country and in fact are heavily biased towards the rich countries.
Secondly, there is no conclusive evidence that such rights actually promote the well- being of society. It can hardly even be established that such protection fosters increased trade or yields substantial gains.
Intellectual property rights in fact can end up creating powerful monopolies and this can actually endanger free competition and thus the well being of society.
Yet those who defend the protection of intellectual property rights continue to insist that without these rights there would be no economic incentive for research and the development of new products, and as such the welfare benefits to society would be limited. Copyright protection, it is argued, rewards those that pursue research by ensuring that the monies spent on research and product- development can be recouped.
In reality, the returns on copyright protection go beyond recouping the investment. The returns from copyright protection far exceed the cost of their production and are often multiple times the initial investment of developing the work or product. Far from allowing the inventor to recoup the cost of his research, copyright protection actually allows him or her to benefit excessively.
Copyright protection was created to profit the capitalist system and to reject the idea that there is a public interest to research and the production of knowledge. It is an instrument of capitalism and in fact emerged in the wake of the industrial revolution.
Successive revisions of international copyright laws including of the Berne Convention on literary works strengthened the hand of copyright holders and offered no real concessions to developing countries.
Copyright protection is undeniably biased in favor of rich countries. The provisions in international intellectual copyright relating to developing countries do not offer these countries any meaningful concessions.
Strangely, there has been some attempt recently to suggest that there are provisions within international conventions on copyright protection which developing countries such as Guyana can utilize to safeguard the public interest, say in education where a controversy has erupted over pirated text books. It is a myth that Guyana can resort to some of the international conventions to have a relaxation of copyright regulations or even to have a waiver of such regulations.
It is argued for example that under the Berne Convention there are provisions which allow for developing countries, under certain conditions, to reproduce copyright- protected works.
The Berne Convention does have a special Annex relating to developing countries but the provisions relating to the use by compulsory licensing of literary works are so restrictive that no developing country is going to resort to these provisions.
The provisions of the Berne Convention insist that while there is a right by developing countries to employ compulsory licensing to reproduce works, this right can only be exercised in a manner that does not prejudice the legitimate interests of authors. This is another way of saying to developing countries that you can reproduce under highly restrictive conditions but you must pay copyright fees to the author, and you must say what the author or his agents feel is legitimately due to him or her.
Also, the right to reproduce is only permissible for translations and for works which are used for instructional purposes.  Works used for instructional purposes, that is teaching purposes, are quite distinct from materials used for the purposes of study. As such, there is no right to reproduce school books under international copyright laws.
But if for argument sake it is assumed that compulsory right to reproduce text books exists, the Berne Convention places additional restrictions on when such works can be reproduced under system of compulsory licensing. These time limits have the effect of discouraging any form of reproduction under compulsory licensing because by the time a developing country can do so, the works would be outdated.
In effect the right to reproduce is a three card trick. Guyanese therefore need to disabuse themselves of the idea that there are provisions under international copyright laws and conventions to which Guyana is a signatory and to which we have acceded, that allow for Guyana to seek a waiver or a relaxation on the payment of copyright fees.
The call by the President of Guyana for international copyright laws to be relaxed so as to allow countries to meet their educational targets is therefore one that should be taken seriously because the present international copyright laws do not cut developing countries much slack.

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