International developments in Intellectual property Denise Nicholson SA Representative for eIFL.net and Copyright Services Librarian, University of the Witwatersrand, Jhb. ZULC Open Access and Creating a Knowledge Society Conference Harare - 25th April 2006

What is Intellectual Property? IP refers to creations of the mind Two categories: –Industrial property - inventions (patents), trademarks, industrial designs, and geographic indications of source –Copyright - literary, artistic & musical works, films, sound recordings & computer programs. Rights include those of performing artists, producers and broadcasters

Why international IP developments are important Copyright law characterized by international nature National laws come from international treaties and agreements Librarians need to be vocal in international law-making bodies Without input from librarians and educators, laws could be too restrictive!

Key international organizations The World Intellectual Property Organization (WIPO) ( The World Trade Organization (WTO) (

WIPO Development Agenda WIPO is a UN Agency - funded by international patent system. WIPO’s decisions have huge impact on developing countries Geneva Declaration on the Future of WIPO – WIPO Development Agenda – proposed by Chile and Argentina – supported by 12 other developing countries, civil societies, etc.

WIPO Development Agenda (cont’d) IP protection has become an end in itself Agenda aims to re-orient WIPO to its original goal to promote intellectual creativity WIPO obliged to facilitate and implement wider development perspective of the UN Millennium Declaration Has mandate to facilitate transfer of technology and capacity building in developing countries

WIPO’s approach to Agenda Special intergovernmental meetings (IIMs) Consensus blocked by U.S. and Japan 2005 Assembly agreed to 2 meetings in 2006 (one in February; one in June) Proposal by Chile on the public domain Discussion of proposals by African Group

Draft Treaty on Access to Knowledge (A2K) FOD’s initiative to counterbalance current IP trends Civil societies drafted A2K Treaty, which would -  Redress imbalance  Provide guaranteed minimum levels of exceptions and limitations;  Provide checks and balances between rights holders and consumers;  Support and promote new business models of open access & open source software; A2K Conference – April 2006

Intellectual property in Africa Priorities differ Western copyright vs. collective ownership Outdated copyright laws restrict access Co-operative between WIPO and ARIPO, OAPI & African Regional Centre for Technology (industrial property) No copyright co-operation in Africa until recently Few Rights Organizations function properly Copyright laws are not balanced Current laws fail to address needs of education, libraries & the sensory-disabled

Copyright – a barrier to education Problems with accessing information – Music lecturer Distance learner Blind student Deaf student Librarian

Copyright – a barrier (cont’d) Nursing sister Literacy facilitator Rural teacher

Access to knowledge and cultural treasures Restricted!

Benefit or burden? Is copyright working? Yes – for developed countries Sophisticated income-protection mechanism Low royalties for authors – what incentives? Scholarly authors have to assign copyright Educational institutions pay over and over Bulk of works used are from abroad Bulk of royalties paid to foreign rights-owners

Benefit or burden? (cont’d) Copyright infringement – not generally with criminal intent Communities cannot afford to buy works Need the information to become educated The stricter the law, the more infringements

TRIPS Agreement TRIPS ties copyright into global trading system Emerged from Uruguay Round on Tariffs and Trade (GATT) First comprehensive IP agreement ever executed by world’s trading nations Minimum standards and legal flexibilities Developing countries have until end 2006 to become TRIPS compliant in domestic laws LDC’s have until 2016

Copyright and Trade: Free Trade Agreements “A Free Trade Agreement is a contractual arrangement which establishes unimpeded exchange and flow of goods and services between trading partners regardless of national borders.” ( It contains an IP Chapter, the “TRIPS Plus”, which far exceeds minimum requirements of international IP Agreements

Behind closed doors

TRIPS-Plus TRIPS-Plus + Expanded TRIPS Agreement Provisions far exceed international minimum standards U.S. Digital Millennium Agenda and Sonny Bono Copyright Act extended beyond its borders Goes to heart of education, development and economic policies of developing countries

Impact of TRIPS-Plus Extra 20 years copyright protection Distorts traditional balance of interests Has serious affects on – Education Research General access to information and knowledge Development policies Outflow of currency – huge economic burden Shrinks the public domain Vibrant public domain necessary for new creations Rights owners control from the grave!

TRIPS Plus & Public health DOHA Declaration TRIPS must support countries’ public health objectives CIPR encouraged compulsory licensing & generic competition TRIPS-Plus erodes TRIPS exceptions Limits generic competition & restricts exports Expands patent protection Restricts exclusion of inventions for patentability Public health and millions of lives at risk African countries must adopt DOHA and TRIPS flexibilities

Anti-circumvention technologies (DRMs) Exceed WIPO obligations Eliminate fair use and stifle research Block text-to-speech software Create monopolies over devices that handle digital media Lock up indigenous knowledge Affect software industries & open access Regulate Internet Service Providers (ISPs)

Should Africa adopt TRIPS-Plus? No – it would affect fair use, legitimate library and archival functions and research Compromises public health & development policies Undermines democracy and national sovereignty Contradicts the will of the public Legal flexibilities would be overridden Far less access to global knowledge IP cannot be an end in itself Rather support Development Agenda and A2K Treaty

Copyright initiatives eIFL.IP - Commonwealth of Learning – COL Copyright Document = SARDEC -

More copyright initiatives ACAIA - ( own website will be created) African Digital Commons - Creative Commons - and new website – icommons.orgwww.creativecommons.org

Why should librarians be concerned? Committed to freedom of access to information and free flow of information Support balanced copyright Restrictive copyright laws impact on their core business

Challenges & Recommendations Librarians must - Take up the challenge! Must organize and mobilize at all levels Must lobby national governments to – –review copyright laws and adopt legal flexibilities; –resist TRIPS Plus –support WIPO Development Agenda, A2K and other initiatives

Challenges and Recommendations (cont’d) Restore the balance Consider legislation for “Orphan Works” Open public-funded research to the public Establish alliances with international organizations Work together to find a copyright solution for Africa Let’s start right now!!

Thank You Denise Rosemary Nicholson SA Representative for eIFL.net and Copyright Services Librarian, University of the Witwatersrand, Johannesburg, S.A. Phone: – Fax: