30 November 2007
Inside Views: The Proposed Reform Of Venezuelan Constitution: Cultural And Intellectual Property Issues
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[Re: 2 December referendum on constitutional changes in Venezuela]
By Rafael Carreño, SAPI External Advisor
During the last few months across Venezuela at dozens of open forums -both on the streets and within institutions and in the media, there have been many discussions held among intellectuals, authors, copyright users, small traders, and government officers about the issue of author’s rights/ copyright. At stake was how to overcome a major contradiction in the current Venezuelan Constitution which had blocked the growing trend towards the sharing of arts, sciences, and knowledge. Eduardo Saman, a former head of the Venezuelan intellectual property organisation, SAPI, explained at these discussions that creative works are not a commodity that should be regarded simply as some kind of property.
The limited term of copyright protection, which is a minimum of 50 years, has shown us that copyright is a social agreement between the creator and the State, and hence the profits arising from copyrighted works should be maintained in the hands of authors. Entrepreneurs only should have a limited income from copyrighted goods because, as service providers such as publishers, they merely reproduce and distribute copies and do not need to become the copyright owners of works.
At present, the sale of the rights created in copyrighted work, now treated as if they were physical property, is an unfair process which has occurred for decades around the world. This old misinterpretation allowed many investors to expropriate creators’ efforts to the benefit of the private sector. The trade should be a matter of economic right for corporations, to be mentioned in another article of the proposal, in a chapter not related to human rights. The Venezuelan government wants to take back the copyright in favour of the creators as a deserved human right that have been long time ago taken away from authors.
Article 98 of the current Venezuelan Constitution (approved in 1999) reads as follows:
“Cultural creation is free*. This freedom includes the right to invest in, produce and disseminate the creative, scientific, technical and humanistic work; as well as legal protection of the authors’ rights over their works. The State recognizes and protects intellectual property rights in scientific, literary and artistic works, inventions, innovations, trade names, patents, trademarks and commercial slogans in accordance with the conditions and exemptions established by the law and in the international agreements signed and ratified by the Republic in this field”.
As can be seen, this wording equates creating culture with the right to trade. In the upcoming referendum on the Constitution (to be held on 2 December), the Venezuelan government has proposed the following option:
“Cultural creation is free*. This freedom includes the right to cultural diversity pertaining to invention, production and dissemination for creative, scientific, technical and humanistic works; including the legal protection of the authors rights over his/her works. The State recognizes that everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific, technological advancement and in the benefits resulting from it”.
As can be appreciated, the final part of this proposed article has been taken from Article 27 of the Universal Declaration of Human Rights. The word “property” has not been included as if it were a right. As well, the relationship with international agreements will be considered only in documents at a judicial level and not as part of the the national Constitution of the country.
It is also important to recognize that the 1999 Venezuelan Constitution had stated in Article 113: “Monopolies are contrary to the fundamental principles of this Constitution.” In the new proposal for the Consitution, the public interest will be advanced because Article 113 simply states as follows: “Monopolies are banned”. Monopolies give exclusive rights to large corporations. If the proposed changes are adopted, the current trade in educational works in the public school system, as well as technologies used to save life and in the public health services, will be managed in a different way to allow a more equal society with real social options for people who have been excluded from access for many decades. Contrary to current international doctrine on the subject of intellectual property, Venezuelans consider the right to learn and the right to live as national priorities that are far more important than the right to trade.
This standpoint does not mean that authors, inventors or performers will not get the deserved return for their effort and talent. But in Venezuela, widespread disparity should soon be overcome to the benefit of people who have been excluded from cultural channels for decades, almost without access to knowledge and to needed entertainment, and with very few alternatives for better living conditions. Researchers, artists, and performers will keep the control of their works, and they will maintain their right to work and to earn money from their abilities. As well, cultural industries will keep working in a country where significant new investment by the goverment is promoting economic growth and development which has been increasing constantly in recent years. Investors, however, would no longer enjoy the human rights of authors because a corporation is not a human being.
It seems fair to predict that these changes (and others) will be popularly approved by Bolivarian forces within Venezuela in the 2 December general referendum, even if a minority of the population wants to reject it following a frenzied media campaign. According statistic surveys, the majority have a good chance of winning another round in this democratic contest and, as result, will help to build a fairer legal system of cultural creation and exhange for all Venezuelans.
(* in Spanish “free” as related to freedom, not as “cost-free”)
Rafael Carreño is an advisor to Servicio Autónomo de la Propiedad Intelectual (SAPI) of Venezuela. He is writing in a personal capacity.
Categories: Access to Knowledge, Copyright Policy, Developing Country Policy, Enforcement, English, Human Rights, Inside Views
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1 December 2007 at 1:34 am
The “open” debate surrounding the reform of article 98 of the Venezuelan Constitution is described very accurately in the words used by Rafael Carreño when he highlights how “Edoardo Saman, a former head of the Venezuelan intellectual property organization SAPI” (which is by the way the IP Office, thus a governmental organization), “explained at these discussions that creative works are not a commodity that should be regarded simply as some kind of property”. As most of the debate regarding the Constitutional Reform, it has mainly involved the attempt of imposing a view, more than bringing issues to public discussion.
Within the context of the reform, proposed article 98 is not likely to change the current situation with regard to IP protection in Venezuela. Effective protection has been largely and increasingly absent from our country. And during the last years, the widespread adoption of open source software and collaborative mechanisms that enable sharing of information and knowledge, actively pursued by the government, falsifies the claim that current article 98 has blocked the “growing trend towards the sharing of arts, sciences and knowledge”.
In fact it is important to highlight that the two justifications for modifying article 98, namely that it is included within the cultural rights and that it involves the right “to invest” and not the right “to invent”, were introduced by the 1999 Constitution, which was put forward by the current administration . In fact, the 1961 Constitution only established that “rights over scientific, literary and artistic works, inventions, marks and trademarks will be protected during the time and under the conditions established by the law” (article 100 within the section on economic rights). The added benefit of introducing the same words of Article 27 of the Universal Declaration of Human Rights is only as beneficial as unnecessary, since it recreates a right that already exists since 1948. Implementing such right and solving the clashes between different societal interest, such as benefits from innovation and access to knowledge are the real challenges facing developing countries and Venezuela in particular.
It is widely acknowledged that intellectual property systems are not perfect and entail multiple and complex issues at the international, regional and national levels. They are neither a perfect nor the only possible scheme to provide innovation incentives. Thus, it is necessary to discuss seriously about the clashing effects of increasing IP protection, development concerns and other public interest issues such as public health. Such debate is at the core of many NGO’s at the international level and has increasingly permeate diverse Organizations (WIPO and WHO, for instance) but has been also nurtured by governments, among which, surprisingly, Venezuela has not played a more constructive role (beyond perhaps backing some proposals such as the Friends of Development proposal for a Development Agenda in WIPO, back in 2004).
In sum, the core of the proposed reform is not found in the minor changes to article 98 but in the dilution of private property, over expansion of the executive branch powers and possibility of indefinite re-election. However, concluding that the problems with the IP system should lead to its abolition, further contradicts Venezuelan international commitments without contributing to a necessary debate not only for our country but for many other developing and least developed countries.