"Road Map" for Intellectual Property Rights

INTELLECTUAL PROPERTY (IP) broadly means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. Countries have policies and laws regarding intellectual property for three main reasons:
¡ö to protect the moral and economic rights of creators and the rights of public to have access to those creations;
¡ö to promote creativity and the dissemination and application of its results, to encourage fair trading, and thus to contribute to economic and social development;
¡ö to facilitate transfer of technology in the form of foreign direct investment, joint ventures and licensing.
Creators and producers producers of intellectual goods and services are granted the right to control their use for a defined period. That exclusive right is generally subject to limits and exceptions aimed at balancing the legitimate interests of rights holders and users.
Intellectual property is traditionally divided into two branches:
Industrial property consists of inventions, industrial designs and trade secrets which can be protected by patents in order to stimulate innovation, design and the creation of technology; trademarks and other signs which distinguish the goods or services of one undertaking from others; and geographical indications which identify a good as originating in a place that gives it special characteristics. Trademark protection aims to stimulate and ensure fair competition, and to enable consumers to make informed choices between various goods and services. Patent protection is typically given for a period of 20 years, industrial design is protected for a minimum of 10 years, and trademark protection may last indefinitely.
Copyright covers literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. The main purpose is to encourage and reward creative work. Copyright extends for a minimum period of 50 years after the death of the author.

THE TRIPS FRAMEWORK
Wide variations in the protection and enforcement of these rights around the world became a source of tension in international economic relations as the importance of intellectual property in trade increased. To introduce more order and predictability and to settle disputes more systematically, new international trade rules for intellectual property rights were sought during the trade negotiations, known as the Uruguay Round, between 1986 and 1994. The result was an international agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization (WTO). TRIPS tries to narrow the gaps in the way these rights are protected around the world, to bring them under common international rules, and to link with and build on obligations entered into under earlier agreements, especially the Paris and Berne Conventions on Trademarks and Copyright, respectively. When there are trade disputes over intellectual property rights, WTO's dispute settlement system is now available.
When the WTO agreements took effect on 1 January 1995, developed countries had one year to ensure that their laws and practices conformed with the TRIPS agreement. Within a transition period ending 1 January 2000, developing country WTO members completed much of the legislative reforms required for implementing the TRIPS agreement. However, there is information on such reforms by least developed countries, which have leeway for implementing the TRIPS agreement during a transition period ending 1 January 2005.
For pharmaceuticals, the TRIPS agreement is structured so that product patent protection will be mandatory for developing countries as of 1 January 2005, except that the least developed countries have been granted an extension until 1 January 2016. This delay came about at the World Trade Organization conference in Doha, Qatar, in November 2001, which issued a declaration that public health needs must be weighed equally with intellectual property rights.
The road that led to the TRIPS agreement began with the Paris Convention for the Protection of Industrial Property, created in 1883. Since then, many additional international conventions and agreements have been drawn up, and in the past forty years, two global and five regional organizations have been created by cooperating governments (see box).
The creation of three of the organizations (EPO, EAPO and GCCPO) is linked to wider projects of economic integration within the regions concerned. While the same is also true of OAPI and ARIPO, the common legacies of the colonial past (existence of a common official language, legal standards, etc.) also seem to have played a predominant role in their creation.

There are no regional IPR organizations in south, southeast and east Asia, the Pacific, and the Americas. However, in southeast Asia, a framework agreement on IPR was signed some years ago at ministerial level, which established working groups to meet at regular intervals, and has led to the implementation of a common filing system for trademarks. Efforts in the Andean region led to the establishment of a common law on IPR for the six countries of the Andean Pact.

INTERREGIONAL ROLE OF THE EUROPEAN PATENT OFFICE (EPO)
When a foreign application arrives in a developing country, there is a 98 per cent chance that it is also being processed by EPO. Its 4,000 technical scientists and other experts probably constitute one of the largest pools of scientists and experts in the world, not only in the IPR field. Its patents know-how covers administrative and examination procedures, human resources development, documentation techniques, patent information strategies, and information technology solutions for patent offices.

The EPO is probably the world's important provider of IPR technical cooperation:
¡ö With multilateral financing from the European Union, EPO has assisted projects in China, ASEAN countries, India, Vietnam, most eastern European countries, and some countries of the former Soviet Union. Total project costs are almost 30.5 million euros from 1990 to 2005.
¡ö With its own resources, EPO has carried out bilateral projects in developing countries almost since its inception. Current projects are in Africa, Arab countries, China, ASEAN countries, India, eastern European countries, countries of the former Soviet Union, and Latin America. These projects cost an estimated 18.8 million euros for the period 1996-2001 (excluding expert salary costs). The EPO International Academy organizes training seminars for about 500 persons per year, holds international topical conferences, and develops tutorial material. EPO's information technology unit develops systems, tools, and online data bases for patent searches and administration.

REGIONAL ORGANIZATIONS
1. Organisation Africaine de la Propeiete Intellectuelle (OAPI). OAPI (in English, the African Organization for Intellectual Property) has 16 member states, of which 14 are French-speaking. It serves as a registering office and can also carry out novelty examination for trademarks upon demand. In 1999, OAPI received 341 patent applications (over 90 per cent from abroad) and 1,751 trademark applications (97 per cent from abroad). Its fees generated the equivalent of about 3.46 million euros in revenue for OAPI, apparently making the organization financially self-sustainable. It was even able to provide technical assistance worth about 286,000 euros to its member states. OAPI's 76 staff include 25 scientists, lawyers and experts.
After investing in information technology with assistance by WIPO and the French patent office, OAPI is now linked to WIPOnet, and is developing its own IT system for administering patents, trademarks, etc. It now seeks to enable full retrieval and evaluation of technological information in the region's patent documentation, and plans to create a regional training center with support by international donors.
Of the original countries in OAPI, only Madagascar is left. Two non-French-speaking countries have joined (Equatorial Guinea and Guinea-Bissau ). French-speaking countries around the Great Lakes in East Africa have not yet chosen between ARIPO and OAPI.
2. African Regional Industrial Property Organization (ARIPO). ARIPO has 15 member states in English-speaking Africa. Ten additional states have observer status, including Egypt, Nigeria and South Africa. Its revenues in 2001 were equivalent to US$ 1,348,600. Of this, 96 per cent came from application, examination and renewal fees for patents and the rest from trademarks and industrial designs. The number of patent applications varies between 250-350 per year. In 2001, there were 26 staff, of which 8 are at scientific/expert level.
Examiners at ARIPO assess patent applications in substance for novelty, inventive steps and industrial applicability, and determine if patentability criteria and requirements in the Harare Protocol on patents are met. They may also study reviews done by other offices, such as EPO and the US and Japanese patent offices. EPO is helping put into place a system for administering patents and trademark procedures, creating a data base with patent documentation from the ARIPO states, and working toward establishing a regional training center.
3. Eurasian Patent Office (EAPO) has a membership of six countries formerly within the Soviet Union - Armenia, Belarus, Georgia, Kazakhstan, Kyrgyzstan and Moldova. All six have intellectual property legislation which is compliant with the TRIPS agreement. According to a recent EPO assessment, two of these countries have a high capacity for substantive examination of patent applications and have achieved full office automation (Belarus and Georgia),and three have high capacity for local preparation of laws and policymaking (Belarus, Kyryzstan and Moldova); the capacity ranking is lower for the other countries. The volume of applications processed varied from a low of 94 patents per year in Kyrgyzstan to 1,198 in Belarus, and from 1,571 trademarks a year in Armenia to 4,960 in Kyrgyzstan.-
4. Patent Office of the Gulf Cooperation Council. The idea of establishing an "Arab regional IP organization" has been mainly promoted by Egypt. In the meantime, a regional organization for the Arab States of the Gulf (except for Yemen) was created in 1996, with United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar, and Kuwait as members. This young organization seems to follow a pragmatic approach in examining foreign applications, recognizing de facto foreign results whenever possible. It has been recommended that GCCPO establish a service to provide background technological information and documentation searches for their national industries to help them decide whether to apply at international level.

FUTURE STRATEGIES
A recent EPO study recommended future strategies for national, regional and international development of intellectual property regimes, including the following:
1. Develop realistic concepts for the capacities, functions and methods needed at national levels by small or medium-scale IP offices. (Many small countries try to set up fully fledged patent offices, with search and substantive examination, though they have difficulties with such simple tasks as registering titles.)
2. Promote cooperation within and between subregions, even by conditioning technical assistance on the subsequent regional sharing of nationally acquired know-how and facilities.
3. Use a south-to-south approach in training, study visits and conferences, and support the establishment of training centers in the region, particularly in the field of patent information retrieval and evaluation.
4. Make patent information readily available to other countries, other offices and the public.
The following two articles are based on studies commissioned by the UK Government's Commission on Intellectual Property Rights (CIPR), which was established in April 2001 to "examine how intellectual property rights can work better for poor people." See the CIPR website at www.iprcommission.org for more information about CIPR's mandate and activities.