Some Notes On Developing Policy And Law In Caribbean Intellectual Property

By Abiola Inniss

In recent years, the Caribbean has been placed under a considerable amount of pressure to comply with the international regimen on intellectual property rights.

This is in no small part the result of World Trade Organization requirements that signatory countries to its agreements must also become TRIPS compliant (WTO Agreement on Trade-Related Aspects of Intellectual Property Rights). There is also little question that the pressures result from the movement of a world economy which is now heavily based on the creation and use of technologies that are based on the internet and the digitization of information. In this situation, data becomes a totally pliable commodity and the demand for multimedia products continues to expand at a breathtaking rate. Along with this comes the demand for greater protection of the intangibles which fall into the category of intellectual property.

Some governments worldwide place prime importance on research, development and innovation as an essential component of national development, prime examples of which may be found in countries such as India, China, Singapore and South Korea, and this list is by no means exhaustive of countries engaging in this kind of activity.

Caribbean countries, on the other hand, have yet to explore the possibilities of research, development and innovation and are on the receiving end of developed technologies and all of the demands and restrictions which come with them. This is an issue which I explored in the WIPO Journal 2012 and which is wide open for much further discussion and debate. It suffices to say at this point that this lack of attention to an area of endeavor of such great magnitude leaves the region in a position that is weak and disjointed and subject to the whims and fancies of International power brokers in the area.

As a means of compensating for this insecurity, several countries within the region, as elsewhere, have tried to comply with international regimen on intellectual property rights such as the TRIPS agreement. They also have begun to implement legislation that fits the requirements set out under it to the point of going over and above them in what are called TRIPS plus arrangements. The conception of these countries seems to be that life will become much easier for them in their abilities to access much needed resources and that the international community will deal with them in a more reasonable and lenient manner.

There is no indication, however, that developed countries are at all interested in the issues that concern developing countries to the point of offering any concessions in this area. The constant debates and battles to be heard in negotiations at international fora such as the United Nations and the World Trade Organization are a clear indication of the disinterested attitude.

Developing countries that attempt to comply with these arrangements without careful consideration of the effects on their societies have all but signed their collapse into a chaotic policy and legislative abyss. There are several examples of countries in the developing world which have fallen into this trap, Kenya is one such example. The Kenyan government has led Africa in the area of IPRs and has put laws in place to comply with IP regimen, only to find that its lack of policy planning has caused it to have to revisit its laws and to do patchwork correction. According to a study done by Dr. Patricia Kameri-Mbote[1], there is little indication as yet of the extent to which these laws have contributed to Kenya’s national development.

The creation of legislation which deals with IPRs and compliance with international regimen is a complex task that must be approached from both scientific and social perspectives and investigate the deep-rooted needs of societies for the development of their human resources, the preservation of culture, and economic and social advancement.

This means that policy frameworks and policy must be developed that come from an understanding of the unique circumstances which envelop each society, and legislation planned to suit. Caribbean countries intent upon legislative compliance must consider whether their short-term goals of appearing to be up to date with international rules will at all benefit the longer term viability of their economic and social development. It cannot be overemphasized that the leadership of Caricom is quintessential in the creation of Caribbean intellectual property policy guidance for its members.

Abiola A. A. Inniss, LLB, LLM (Business Law), ACIArb mediator, and arbitrator, is a graduate of The DeMontfort University School of Law, UK, and member of the Chartered Institute of Arbitrators UK. She is a legal consultant in business law, law teacher, internationally published legal writer and speaker on Caribbean intellectual property, general business law and ADR. She is the author of Copying, Copyright and the Internet; the issue of internet regulation with regard to copying and copyright, Lambert Academic Publishing March 2011, and Essays in Caribbean law and Policy; a comprehensive discourse, Lambert Academic Publishing, May 2011, both available at Barnes & Noble bookstores and amazon.com worldwide.