CONTENTS
WHAT IS INTELLECTUAL PROPERTY?
Two experts explain the mysteries of patents, trademarks, copyrights, and trade secrets.
SUPPORT FOR ECONOMIC AND POLITICAL FREEDOM
The former U.S. Commissioner of Patents and Trademarks suggests why it is in every country's interest to establish and maintain an effective intellectual property system.
A DEVELOPING COUNTRY'S PERSPECTIVE
Intellectual property rights, says a Ghanaian copyright official, galvanize domestic industry while retaining national culture, inventiveness, and creativity.
PROGRESS IN THE PHARMACEUTICAL INDUSTRY
Striking a blow against patent piracy is essential to the future of pharmaceutical research, says a former association executive.
A TRADE ASSOCIATION AT WORK
The representative of a book publishing association recounts her organization's efforts to enforce international copyright standards.
INTERNATIONAL POLICY AND ACCORDS
Here are the key multinational treaties and conventions that require member countries to provide intellectual property protection for the benefit of foreign nationals.
GLOSSARY
From assignment to World Trade Organization, an attorney defines some commonly used terms related to intellectual property rights.
SOURCES OF INFORMATION ON INTELLECTUAL PROPERTY
How to get in touch with U.S. government entities, international organizations, and other groups in the forefront of the intellectual property scene.
ADDITIONAL READINGS
IN BRIEF...
Fair Use
Copyright in an Electronic Age
The U.S. Patent System
The U.S. Special 301 Process
The World Intellectual Property Organization
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A DEVELOPING COUNTRY'S PERSPECTIVE
By Betty Mould-Iddrisu, Chief State Attorney, International Law
Division, Ministry of Justice, Ghana
The administration and enforcement of intellectual property
rights in developing countries must be seen in another dimension
to the administration of intellectual property rights and their
enforcement in developed countries.
In Europe and the United States, the system of intellectual
property rights emanated as early as the 16th century. Britain's
Statute of Queen Anne, the earliest copyright statute, was passed
in 1709 not only to protect local printers after the advent of
the Gutenberg printing press but also to protect the foreign
works (mainly books) that were being imported from Europe into
England at that time.
Dennis de Freitas, former head of the British Copyright
Council, has commented that the copyright system as it now
exists in virtually every civilized country is a vital part of
modern society's infrastructure. This may be so because of the
centrality of the copyright system in the communication and
dissemination of information to the public through newsprint,
radio, television, films, broadcasting, and education.
In 1996, the International Intellectual Property Alliance
estimated that copyright industries are one of America's largest
and fastest growing economic assets, accounting for 3.7 percent
of the country's gross domestic product $278,400 million. The
core copyright industries produce and distribute computers and
computer software, motion pictures, television programs, home
videocassettes, music and sound recordings, textbooks, trade
books, reference and professional publications, and journals.
In Britain, according to statistics released by the British
Phonographic Industry in its 1995 report on the recording
industry, the 1994 retail value of British music sales was 1,400
million pounds sterling, with exports and invisible earnings
amounting to 800 million pounds. Apart from direct recording
company employment, the British music industry provides a living
for over 50,000 people in music retailing and music publishing.
Studies conducted in other developed countries by the
European Commission and other organizations indicate that in
Austria, Australia, Germany, and Sweden, among others, 3 to 5
percent of the gross national product is attributable to
copyright industries. It has also been estimated that the total
value of the worldwide audiovisual market in 1994 was
approximately $290,000 million.
What can be said of the situation in Africa? A survey of
some countries such as Egypt, Ghana, Malawi, Mauritius, and
Nigeria shows that, before the 1970s and 1980s, most of the laws
regarding the protection of intellectual property were mere
replicas of existing laws of their colonizing countries. These
laws had been designed specifically to protect the rights of the
colonizing nationals and their businesses and firms, and no
account was taken of the different conditions in the colonies and
the developed countries.
Immediately after Africa's emergence from post-colonialism,
African governments still did not attach much priority to the
need to protect intellectual property rights. Many industries
were in their infancy, and the domestic manufacturing base was
virtually nonexistent. What was prevalent in Africa was a vibrant
folklore tradition around which cultural industries clustered in
areas such as music, textiles, jewelry, and the like.
A quick survey of the intellectual property system in Ghana
up to the 1970s reveals that the Ghanaian Trade Mark Register had
recorded approximately 17,000 trademarks, out of which 90 percent
were owned by foreign companies and individuals. In 1996, there
were 27,625 marks on the register, with Ghanaians owning 15 to 20
percent of those registered.
The Textiles Design Registration Decree of 1966, under which
regime textile designs were registered, specifically excluded
registration of all well-known Ghanaian designs such as Kente
and Adinkra symbols. It is interesting to note that, between
1966 and 1997, 23,000 designs were registered under this law;
some 66 percent (just over 15,000) are owned by foreign
designers, and 7,592 are owned by local designers.
In respect of patents, Cap 179, which was the colonial
Patent Registration Ordinance, merely extended the validity of
all patents registered in the United Kingdom to the Gold Coast
colony at that time. All patents so registered belonged to
foreign individuals or firms. This ordinance, due to the
difficulties in setting up a patent system, remained in force in
Ghana until July 1, 1994, when a new patent law was enacted.
It must be noted, however, that most of the intellectual
property laws enacted after the 1970s tended to have a different
bias since they had to respond to new national environments and
the varied global trade requirements of emerging nations
struggling to level the playing fields in international commerce
and investment activities.
Some of the advantages that developing countries acknowledge
as having directly resulted from increased enforcement of the
intellectual property laws are:
Stimulation of creativity and inventiveness in society,
thereby contributing to a country's development.
Provision and protection of the infrastructure necessary
for the growth of production, manufacture, and distribution
within the cultural, educational, and entertainment industries.
Creation of an environment conducive to attracting
domestic and foreign private sector investment in the copyright
industries.
Protection in view of emerging technologies of
expressions of folklore and live performances through the
enhanced legal protection of performers' rights.
On the African continent, the intellectual property system
has also had to confront misguided individuals in society who
believe and expound the theory that developing countries should
feel free to copy works coming in from other countries, notably
the more developed countries. These people cite Asian countries
and others as examples that, because of limited intellectual law
protection in the past, managed to develop local industries as a
major force on world markets by copying, pirating, or
counterfeiting the works and goods of other countries.
However, many of these countries now realize the impact that
lack of enforcement of intellectual property rights has had on
their economies, their local industries, and their culture. For
example, it is well known in Asia that Malaysia's domestic motion
picture industry suffered tremendous harm from competition in
foreign films since, until recently, the country had neither
copyright rights nor rental royalties for films. The Malaysian
motion picture industry and its performers had to exert an
enormous amount of pressure, demanding that the government
effectively enforce the copyright laws. Malaysia now has a
vigorous intellectual property enforcement program, worthy of
emulation anywhere in the world.
Previously, we in Africa, especially those within the
Anglo-Saxon legal tradition, have had a very basic problem with
the philosophy of intellectual property rights, which have been
enforced primarily through civil litigation. Only recently have
African governments regarded the enforcement of intellectual
property rights as their responsibility and those persons who
infringe upon these rights as engaging in acts inimical to the
interest of the state.
The Experience of Ghana
The challenge now is for African governments to commit to the
enforcement of strong intellectual property laws by strengthening
the administration of their copyright systems. My own experiences
in intellectual property administration in Africa have shown that
the basic prerequisite for the development of a strong and
effective copyright system involves the following minimum
criteria:
Passage of a strong copyright law.
Adherence to international conventions.
Establishment of effective administrative machinery that
can collect royalties and undertake distributions at regular
intervals to the deserving authors.
Entering into a network of reciprocal representation
agreements with sister societies worldwide.
Establishment of an effective enforcement and monitoring
mechanism to fight piracy.
I would like to illustrate these points by reference to
Ghana in West Africa. Ghana passed a strong, modern, and vibrant
copyright law, PNDCL 110, in 1985 to replace the obsolete
Copyright Act of 1961 one of the pieces of post-colonial
legislation regulating the copyright industry. The criteria
enumerated above the framework within which copyright should
be administered were also adhered to in Ghana.
A collective body for the administration of authors' rights,
known as the Copyright Society of Ghana (COSGA), was set up in
1986. Ghana adhered to the Berne Convention in 1991, and COSGA
embarked on a program of concluding reciprocal representation
agreements with other collective societies worldwide.
COSGA has achieved some measure of success in its
operations; it has been collecting and distributing royalties for
both domestic and international repertoire since its inception.
The Confederation Internationale de Societes des Auteurs et
Composituers (CISAC) views COSGA as one of the leading authors'
societies in Anglophone Africa, since the strides made by the
collective administration of authors' rights in Ghana are
remarkable. In most other Anglophone countries, the efforts at
collective administration of authors' rights have met with only
limited success.
Even though Ghana enacted a modern copyright law in 1985,
the music, literary, and film industries had suffered a severe
decline prior to 1992, and the rights of performers, composers,
and authors were being infringed upon at an alarming rate. I want
to underscore the fact that mere passage of legislation is no
guarantee that a law is being enforced, and if there is no
enforcement, the passage of legislation is useless. This has been
most apparent with regard to copyright legislation in Africa.
The successful administration of copyright in developing
countries is inextricably linked to the problem of piracy, which
in Ghana had reached an alarming rate of 90 percent in those
intervening years. Obviously, the whole administration of
copyright became problematic since, ultimately, there would be
only insignificant royalty payments going to authors,
illustrators, composers, arrangers, or performers or any of the
creative people who contributed to the making of an original
work.
The piracy of copyrighted works in Africa, and in Ghana in
particular, over the years contributed to:
The exodus of many of our talented authors to Europe, the
United States, and other developed countries. This drain has
deprived Africa of a wealth of native creativity.
Stultification of the development of all the
copyright-associated industries and the subsidiary activities of
those involved in the business of legitimate creativity.
Considerable loss in revenue to the state through direct
and indirect forms of taxation.
Retardation of the cultural creativity of our local
communities, which, for a developing country whose national
identity and cultural roots are inextricably linked with its
national economic development, may have far-reaching
consequences.
Putting an End to Piracy
The music industry in all its ramifications forms a major part of
cultural industries since it is one of the formats through which
musical folklore is expressed. In Ghana, musicians have a vast
reservoir of indigenous Ghanaian music from which they draw their
inspiration; they are able to modify and arrange expressions of
folklore to modern-day music.
In Ghana during the 1970s and 1980s, with the advent of tape
recording machines and videocassette recorders, the production of
indigenous music was on the ascent and could be heard all over
the country. Yet the musicians, artists, producers, and others
involved in the legitimate production of music and the music
industry as a whole had never been poorer due to the impact of
these new recording technologies and their encouragement of
piracy.
The government of Ghana and the Copyright Administration
from 1985 to 1990 found themselves more or less helpless to fight
the piracy that was rampant. Owing to increased costs in
production of music and the relatively small number of genuine
works being sold, artists, composers, and the producers of
musical works lost the incentive to create new works. Thus, Ghana
lost international respect and gained a reputation for being a
safe haven for pirates and pirated works. At the same time,
Ghanaian music suffered a reversal since the pirated foreign
imported music was able to capture the market.
It became evident to the Ghanaian authorities that when one
copies, one does not, in any way, encourage national authorship,
national culture, or national creativity. This holds true for all
the different strata of the intellectual property legal system,
whether it be the copyright, patent, industrial design, or
trademark system. If we in Africa pursue such a course of copying
blindly all that comes from the developed countries, we would
forever be trapped in a cultural negation of our own making that
would undoubtedly retard both our economic and cultural progress.
The government of Ghana, through the Copyright Office, was
thus compelled to take the initiative in the fight against
piracy. The Copyright Office, in close cooperation with the
various organs of the music industry and with the technical
cooperation of the International Federation of the Phonographic
Industry (IFPI) in London and its national group in Ghana, the
Association of Recording Industries of Ghana ARIGh
instituted the banderole system. The system was modelled along
the lines of the Portuguese system, because after Portugal
introduced this system, it achieved a near-zero rate of piracy.
The affixing of an authentication stamp known as the
banderole on all musical works became mandatory in Ghana
beginning June 1, 1992. This stamp is a security device that is
sequentially numbered; individual numbers are allocated only to
genuine producers of musical works, and imports of all
pre-recorded musical works have to be authenticated by the
Copyright Office, in cooperation with the Customs Excise and
Preventive Service (CEPS). The recording industry in Ghana agreed
with the Internal Revenue Service (IRS) to use the banderoles as
a source of direct prepaid income tax.
In Kenya when the banderole system was originally planned,
it was proposed that the banderole be used as a value-added tax
(VAT). Nigeria had no tax element built into the system.
Unfortunately, the system never took off in Kenya, which now has
an unacceptably high rate of piracy. And in Nigeria, it
completely collapsed after less than one year due to internal
problems. However, that country is now anxious to revive it since
its piracy rate is over 80 percent.
The Benefits of Banderoles
Some of the benefits that the Ghanaian authorities and the music
industry have seen during the past several years of successful
operation of the banderole system are as follows:
There has been a reduction in the rate of piracy from 90
percent to about 10 to 15 percent.
The stamps have served to identify original musical works
originating from an authentic music producer. The Copyright
Office issues approvals only to applicants who are genuine
members of the Association of Recording Industries of Ghana.
The banderoles have provided adequate statistics about the
number of musical works produced and imported into the country.
The producers are being made strictly accountable to their
artists since the Copyright Office insists on having recording
contracts between the producer and the artist before approval for
purchase of banderoles is given. So for the first time, Ghanaian
artists and composers can know exactly how many of their works
have been produced and can calculate and collect their royalties
without encountering the difficulties of the past.
The Internal Revenue Service the agency actually
responsible for the sale of the banderoles has managed for the
first time to collect revenue from a sector of business in the
country from which it had hitherto received little or no revenue.
This system of authentication is, at present, being used for
musical works. It is envisaged that the system will be extended
to authenticate literary and video works sometime in the future.
The introduction of the banderole system has brought a
complete reversal of the fortunes of the music industry. Ghana
has now moved away from the situation in which only 2,000 to
3,000 pieces of a hit number are sold to a situation where a hit
musical work may sell between 200,000 and 500,000 pieces. Over 27
million banderoles have been sold since the system was
instituted. While this may not be much in the international
arena, it has enabled Ghana, with a population of some 17 million
people, to be ranked 47th in the world for musical sales.
There has been a dramatic growth in the music industry over
the past five years with a proliferation of recording studios,
cassette manufacturing plants, and the like bringing in both
local and foreign investment. The major foreign licensees are all
back in the country, and Ghana has now become a safe haven for
the production of musical works for artists from neighboring
countries. Ghana has become a model for the rest of Africa to
emulate in terms of the enforcement of intellectual property
rights.
The Evolving Role for Patents
In light of the success of the banderole system, one is tempted
to ask why the patents regime has not proved so effective a
stimulant in the economic development of developing countries.
It is, of course, well known that a patent system requires a
relatively expensive infrastructure with experts in various
technical fields. The patent law in Ghana is only a few years
old, and the regulations to enable the law to be implemented were
only recently enacted. The role the patent regime can play is
only now evolving; however, with growing awareness of industrial
property laws, this field is likely to be strengthened in the
years to come. This situation is being repeated across most of
the continent.
However, it cannot be denied that the trademark and design
system and, to a lesser extent, the patent system have played an
influential role through the licensing, distribution, and
franchising of intellectual property rights in developing
countries. They have assisted in the transfer of technology and
the dissemination of new forms of know-how through minimum
standards of licensing and usage of these rights.
It is hoped that when the Trade-Related Aspects of
Intellectual Property Rights (TRIPS) Agreement comes into force
in most African countries in the year 2000 (despite the unlevel
playing fields), developing countries will be in a better
position to benefit from the globalization of minimum
intellectual property standards in world trade.
The example of Ghana I have given above, which I have
experienced, has given me reason to be optimistic for the future
of intellectual property rights in developing countries. We in
the Third World should not see the observance and enforcement of
intellectual property rights as merely protecting the interests
of the developed world, but rather as a powerful tool to
galvanize our domestic industry while retaining national culture,
national inventiveness, and national creativity.
Betty Mould-Iddrisu is chief-state attorney at the International
Law Division of the Ministry of Justice in Ghana. She is a
specialist in intellectual property law and also lectures at the
University of Ghana's Law Faculty in intellectual property. She
is a gender rights activist and is the African regional director
for the International Federation of Women Lawyers (FIDA).
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