International developments in
Intellectual property
Denise Nicholson
SA Representative for
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
 Librarians need to be vocal in international law-making
 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
 WIPO’s decisions have huge impact on developing
 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
 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
 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 Outdated copyright laws restrict access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
Copyright – a barrier (cont’d)
 Nursing sister
 Literacy facilitator
Rural teacher
Access to knowledge and cultural treasures
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?
 Copyright infringement – not generally with criminal
 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
 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
Behind closed doors
 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
 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
 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 =
More copyright initiatives
(own website will be created)
 African Digital Commons -
 Creative Commons - and
new website –
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
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
Copyright Services Librarian,
University of the Witwatersrand, Johannesburg, S.A.
[email protected]
Phone: +27 11 7171929 – Fax: +27 11 403-1421

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