Copyright and Related Rights: Striking a balance between IP

Protection and the Public Interest

Dr Susan Isiko Štrba Consultant, IP, Trade and Development

National Intellectual Policy (IP) Workshop: The Strategic Use of IP for Technological Capacity Building, Economic Growth and Development

Mbabane, 19 -20 May 2014

Outline

• Types of development

• Balance between effective protection and larger public interest

– Why, what and how

• Some policy considerations

• Conclusions

Types of development

• Why it matters

• Economic development

– GDP, employment, trade balance

• Development as capabilities

• Cultural development

• Level and type of development determine how to balance (policies, etc)

Balance between effective protection and larger public interest

• Why need to balance – IP is one tool for economic growth and

development • Level of development

• Need human capacity to innovate/create for development

– Creators are users of IP

– Users are authors (esp online environment)

– Need access for development • Private rights v public interest

Balance (2)

• Selected key areas

– Education

– Research

– Libraries and archives

– Information Communications Technology (ICT)

– Special needs

Balance (3)

• Options for balancing – Use of flexibilities or limitations and exceptions

• In Berne Convention, TRIPS, etc

– Categories of flexibilities • Not protect

• Protect but allow free use under certain circumstances

• Protect but allow remunerated use, either by permission of copyright owner or through a relevant authority

– specific examples

Balance (3) – flexibilities for education and research

• Type of access for education – Access to learning and teaching material for development

• Minimum vs effective education • Development as capabilities

– Distance education – Quality education

• Research – Research for development

• Available flexibilities for research – Quotation – Illustration – Fair use or dealing – Voluntary licencing – Compulsory licencing (including outside Berne Appendix) – Parallel importation

Balance (4) – flexibilities for libraries and archives

• Selected flexibilities for consideration

– Preservation

– Reproduction and safeguarding

– Library lending

– Translation

– Parallel importation

• International exhaustion

– Technological protection measures

Balance (5) – digital environment

• Access to ICT – Selected issues in the digital environment – The WIPO internet treaties (WTC, WPPT)

• Rights management information • Technological protection measures

– Regulation of internet services • Policies for Libraries, educational and research institutions

• Developing countries mainly users of ICT – ICT for development – software

• Protection of computer software (TRIPS) – Exceptions: reverse engineering

Shortcomings of limitations and flexibilities

• Quantities allowed too few

• Restriction on types of use

• Restriction on types of users

• Some are simply not workable, eg Berne Appendix,

• Assume users always get possession of copyright work (example of software)

Balance (6) – persons with special needs

• National realities

• International solutions

– Treaty for blind, visually impaired or otherwise print disabled (Marrakesh Treaty)

– First international instrument focusing on access through L&Es in the digital environment

– National policies ahead of international

• Treaty a harmonization of practices

Balance (7) – other international trends

• Treaty on L&Es for educational and research institutions?

– Harmonization

– Respond to technology

• Treaty on L&Es for libraries and archives?

– Respond to technology

– harmonization

Made in Swaziland – how balancing would work

• Strong protection where have comparative advantage

– Eg handcraft (both economic and cultural development)

• Strong protection for cultural development

– Eg Traditional dances

– folk lore

– research on indigenous knowledge systems etc

Made in Swaziland

• Allow access to develop capabilities – Imported educational/research material

– Software • How would this help?

• Possible to develop ICT through exceptions

• Tap into rich knowledge, (Linkokwing University of Creative Technology – Sidvwashini)

• Develop open source software

• Then protect after acquiring enough innovative capacity

Policy Considerations (2)

• Use of limitations at minimum cost to industry

• Should be for Capacity building – Social and developmental costs of uneducated

citizenry

– Technology vs human capacity

– Use of policy space for capacity building • Flexibilities relating to technology have great potential

in knowledge

• Swaziland net importer of ICT, work toward developing its own

Conclusions

• Need to protect vs access in order to create

• Policy space available to allow access

• Balancing exercise should aim at building capacity to innovate and create, (and create more), and earn more money in future

Recommended

• Susan Isiko Štrba

International Copyright Regulation and Access to Education in Developing Countries: Exploring Legal and Quasi Legal Solutions, Brill/Martinus Nijhoff, Graduate Institute Series, 2013.

Thank you

Dr Susan Isiko Štrba

Consultant, Intellectual Property, Trade and Development

Senior Research Affiliate, University of Minnesota, Trade and Development Program

isikos@hotmail.com