Enforcement of Rights and Clarifiying Limitations and Exceptions to Rights Essay

Introduction

Innovation has contributed greatly to the comfortable existence of humankind. For instance, the invention of the telephone has made communication easy and almost boundless regardless of one’s place and time. The invention of penicillin was a great milestone in the world of medicine and it revolutionised medicine preparation as well as the refined form in which it comes, which has cut down the cases of fatal diseases and even most of those with no cure are now manageable. However, most innovations and inventions would not be possible without the incentive of protection of the intellectual property rights of the inventors.

This age-old practice dates back as far as 500BC in Italy.¹ These rights include the right to earn profits from the inventions for a specific period and protection from infringement from other individuals by means of duplication of the invention or sale of the same without the inventor’s permission. It is for this reasons that governments all over the world establish intellectual property legislations that ensure the protection of the right. However, in the recent decades there have been severe violations of intellectual property rights, both domestically in various countries as well as internationally.

Advancements in technology play a big role in the increasing number of violations as they allow more access to information on the inventions, making it easier to duplicate or steal them. The violation of intellectual property rights through counterfeiting and piracy is an issue that has mostly affected the conduct of trade and the benefits that accrue from such trade in countries worldwide, locally and internationally.

It is for this reason that world governments have in the recent years made various efforts to curb the vice and improve trade while encouraging more innovations. This paper makes an analysis of the efforts made internationally and by local governments in various countries to enforce intellectual property rights and clarify the limitations and exceptions of these rights. The paper also aims at establishing the issues that should take priority from the steps that the international community has made so far.

Enforcement of intellectual property rights

Looking at Intellectual property from an economic point of view, it forms the basis for which to establish a monopoly for the inventor, both in production and sale of the same. In other words, the inventor becomes the only person or institution that produces the invention and the only person with permission to trade the invention for profit.² Any other person wishing to participate in business using the invention does so with the express permission of the inventor or faces punishment for infringement. The most common infringements of intellectual property legislation are piracy and counterfeit production of inventions.

These infringements have various negative effects in the economy, both in a country’s macroeconomics and in international trade.³ One such effect is the loss of income and revenue. According to the Swiss Federal Institute of Intellectual Property, counterfeits cause financial damage to a country’s economy through the loss of potential revenue owing to the sale of counterfeit products that take the place of the legitimate products.⁴ For instance, the sale of watches that look they come from a particular country denies that country the right to earn revenue from similar sales on the legitimate watches. Another effect of such infringement as the institute’s report mentions is that they hide potential danger to consumers both domestically and internationally, especially with regard to health products and replacement part.

The sale of counterfeit pharmaceuticals is especially dangerous as it is a direct threat to the health of people well beyond the borders of the countries that make such drugs and it is for this reason that it has attracted international attention. According to statistics from a survey carried out by the World Health Organisation, counterfeit drugs account for sixty percent (60 per cent) of all pharmaceuticals in developing countries, 16 per cent of which comprise drugs with the wrong ingredients, while 17 per cent of those drugs contain the proper ingredients in the wrong proportions.

More alarmingly, 60 per cent of the counterfeit drugs contain no active ingredients and are therefore useless in addressing the ailments for which the buyers use them, which is perhaps the reason the mortality rate in developing countries is higher than the rate in developed countries. The Swiss Federal Institute of intellectual property also makes note that counterfeit products play a major role in the finding of organised crime, a statement that the United States Chamber of Commerce agrees with. In a Global Intellectual Property Centre, report from January 2013 the institution gives statistics on the amount of doses nabbed by the American authorities in the year 2012 and the value amount.

International Efforts

The international community understands the dangers that intellectual property crimes pose to the development of trade and the growth of economies through out the globe. As one of its efforts, it has established various organisations through the United Nations. Examples of these organisations include the World Intellectual Property Organisation (WIPO) and the Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The main mandate for the two organisations is to formulate a standard form of international legislation to govern all the countries as a means of regulation intellectual property concerns that arise during trade and other interactions.⁵ However, in recent years, there has been out cry from some countries, especially developing countries. The reason for such out cry is that the laws that currently exist do not cater for the needs of the developing countries adequately and rather seem to favour developed countries.

These laws were made in the initial years after the establishment of the United Nations and its subsidiary agents, a time when most of the developing nations had technically not yet established themselves the international community in trade. This aspect is perhaps the reason that most of the laws do not seem to cater for the special needs of these countries. The first country to express its discontent with the international intellectual property regime and challenge it was Brazil in the year 1961, in an effort sponsored by the government of Brazil and the Bolivian government.⁶

Brazil challenged the regime by the tabling of a draft resolution.⁷ One of the main issues raised in the resolution was that patent and other agreements forming the protection of the rights of ownership of investors of new products and processes limited access to knowledge in science and technology. The resolution conferred upon the secretary general the tasks of surveying patent legislations in some selected developed and developing countries and studying the effects that royalties have on underdeveloped countries that pay for the use of patents with regard to the balance of payment among others. This aspect was essentially due to the amount paid in royalties for the use of the inventions.

The draft also requested the secretary general to look into and form an analysis on the characteristics of the domestic legislations of underdeveloped countries with a focus on their development objectives. The draft also requested an indication of the possibility of revising legislation in accordance to international law, such that the legislation encourage and permit the rapid integration of new inventions in order to enhance the rate of development in underdeveloped countries. It also suggested that underdeveloped member states should consider fashioning their patent legislation with the uniqueness of their economies in mind.

The international Bureau of Industrial Property and the International Chamber of Commerce took the move by the government of Brazil to table the resolution in the General Assembly as a move to shift deliberations on patents to the United Nations General Assembly, an aspect that was within their mandate. The two institutions also considered the move too aggressive and inappropriate resulting to the re-tabling of the resolution after the International Bureau of Protection of Industrial Property had helped in making a few amendments on it so that it was in a more appropriate and acceptable tone in 1964.

However, this move did not settle the unrest over international intellectual property legislation. The issue remained that the developed countries had it better than the developing countries. One of the justifications given for this inference is that the financial capabilities of developed countries and those of developing countries are very different.

Inventors in developed countries have the financial means as well as access to information and technology that enable them to create new inventions and make significant developments on already existing ones.⁸ Developing countries on the other hand experience a lack in both sectors and thus lag behind in the innovation department. Another issue raised by some of the developing countries is that the high standards set by developed countries concerning the protection of intellectual rights also cause developing countries to raise theirs to a similar standard to their detriment.

Failure to effect the raising of such standards causes the loss of inventions made in developing countries to developed countries, as these developing countries are unable to pay the licensing charges required by the international community (Sullivan 2001). An example of this observation is the situation that occurred between Kenya and Japan regarding the kikoi fabric, which Kenya claimed that it was its original invention, but a Japanese claimed ownership occasioned by the registration of a patent on the product.

In terms of benefits of high levels of protection afforded to intellectual property rights holders. Some of the developing countries as well as international institutions shared this opinion. For instance, the Commission for Intellectual Property Development, a body sponsored by the government of the United Kingdom, was awarded the mandate to conduct an assessment as to how intellectual property rights would work for the benefit of the poor and developing countries.⁹ The commission observed that the Trade Related Intellectual Property Rights provided the same costs on patent use to all developing countries, a move that the commission did not consider as practical.

The rationale for the finding was that each developing country is unique in its capacity for technological development and economic ability to occasion inventions and payment for patents. China and India stand out as the epitome of countries that have a higher innovative capability technology than most other developing countries. The commission thus suggested the provision of individually assessed costs due to each country’s unique aspects.

The United Nations Conference on Trade and Commerce (UNCTAD) on its first meeting made a resolution giving among its provisions that developed countries should encourage intellectual property rights holders and unpatented technology in order to facilitate the transfer of technology to developing countries. This move would enable the transfer of technological licenses, knowledge, and technical documentation, a suggestion contained in Brazil’s 1961-draft resolution. This provision was inclusive of a proposal for developed countries to finance the procurement of licenses by developing countries on terms favourable to the developing countries.

Another provision made in the meeting was for the United Nations and other organisations to provide for additional facilities for the transfer of technical documentation and information within the framework of the United Nations. The central goal of this provision was to ensure that all nations adhered to the changes made including developed countries, as the facilities would then form part of the United Nations framework.

The United Nations Economic and Social council supported this provision by adopting a resolution reiterating that access to knowledge and experience in science and technology would enable the continuity of development and industrialisation. It added that this provision would also enable and ease international economic resolutions. Another important aspect of the declaration was the focus on international cooperation regarding scientific and technological development.¹⁰

Since 1961, not much has changed in terms of enforcement of legislation that favours both developing and developed countries. However, nations, both developing and developed have held various conferences that endeavour to solve the inequalities that international patent laws occasion. However, there has been dismal success owing to the presence of conflicts of interest between developing and developed countries and among the developing countries.

Developed countries find the existing intellectual laws appropriate for them, as they call for such high standards of protection to take care of the increasing innovativeness in their countries especially in this technological era.¹¹ They have fewer, stricter requirements in their legislations to govern patent requirements and procedures and the requirements are usually in synchrony with international laws.

Developing countries on the other hand have more complicated systems nationally that provide many requirements for the validation of patents. These requirements also vary from one country to another due to the uniqueness of national laws and economic goals for the voidance of the Diplomatic Conference on the Revision of the Paris Conference in the 1980s. However, the international community has kept the effort to facilitate better laws for developing countries, which is evidence of which the Millennium Development goals made in the year 2000 provide.

The Millennium Development Summit saw the agreement of set goals and targets that foster sustainable development as the core principle. Although these goals do not expressly mention intellectual property laws, their essence implies their inclusion. One of the goals is the development of global partnership for development, which includes partnership between both developed and underdeveloped nations. Other goals comprise “the eradication of extreme poverty, the promotion of gender equality and women empowerment, the achievement of universal primary education, ensuring environmental sustainability and the reduction of child mortality”¹².

Sharing of technological knowledge and inventions without the application of hefty royalty charges has the ability to solve the problems of extreme poverty and education. The United Nations encourages the invention and sale of technology that is specific to the needs of developing countries. Such technology would enable the improvement of education and the possibility of follow up inventions that improve on the inventions bought. International partnerships also provide the chance to reduce poverty by the creation of symbiotic relationships between developed countries that seem to be rich in technological knowledge and developing countries that are mostly laden with resources that have the capacity to further the inventions.

For instance, a developed country with the knowledge and technology to produce a certain drug could benefit from the developing country’s generation of plants and other raw products needed for such production. In that way, both countries benefit. The imposition of a patent on either the technology or the use of a specific resource would see the defeat of this type of symbiotic relationship.

Domestic Efforts

As a way of combating piracy and counterfeiting, governments have set out various efforts both preventive and counteractive. One such effort involves border control, where by various states ensure the protection of their borders from penetration by counterfeit goods. Border control is a counter active measure that governments set for the domestic protection of citizens in their respective countries. For instance, the government of the United States has established agencies that have the task of taking care of intellectual property related matters. The United States Customs and Border Patrol established in 1924 and the Immigration and Customs enforcement are the two major institutions under the Department of Homeland Security that specifically deal with intellectual property related issues.¹³

The reason for their existence is to take care of illegal cross-border activity including immigration and trade transactions in case of a breakdown in the legal framework. These two institutions have been especially vigilant in recent years due to the increase in cases of infringement of domestic intellectual property laws by individuals and international institutions alike. In 2012, the Department of Homeland Security reported on its website the 691 arrests, 432 indictments and 334 prosecutions related to the issue. It also noted that the Internet burst has contributed greatly to the escalation of cases of fake and illegal wares.

As a preventive measure and another way of curbing intellectual property related crime, the department has increased surveillance on the sources of these packages and the websites involved leading to the taking down of 697 websites by the Immigration and Customs Enforcement department. Customs and Borders Patrol took care of forfeitures occasioned by the move. Due to the combined effort of both agencies, there was a decrease in the seizures made in 2012, amounting to 22,848 as opposed to 24,792 in 2011, and indication of the decline in intellectual property related crimes.

According to a report posted by the Chamber of Commerce on the 5^th of January, 2013 through the Global Intellectual Property Centre’s (GIPC) website, 84 per cent of all the seizures made in 2012 by the two agencies originated from China and Hong Kong. The estimated value of the counterfeits seized amounts to $1.3 billon according to statistics from the GIPC*.

Apart from border control, and website surveillance, the two agencies have also set up Operation Pangea V, mainly to combat illicit crime organisations that further their activities through the sale of counterfeit drugs online. This global enforcement initiative has led to “the seizure of 3.7 million doses of potentially counterfeit drugs with the estimated value of $10.5 million”¹⁴.

This goes a long way in reducing the number of counterfeit drugs that are distributed worldwide, with the main market being developing countries due to the relative cheapness of the commodity and the economic consideration it has. Unlike developed countries, developing countries lack the financial capability to enforce the strict use of original items as these usually cost more than counterfeits. Most of them also lack the technical knowledge and legislative backing to combat the menace.

Some countries have ensured the availability of public search facilities, an initiative that aims at that the public gets information on intellectual property holders and the rights that are availed to them. It also allows the public to use creative works protected under the intellectual property legislation creating a reduction in the risk of piracy and counterfeiting. In the United States, for instance, the Scientific and Technological Information Centre of the United States Patents and Trademarks Office located in Alexandria has one hundred and twenty volumes (120) of scientific and technological books in various languages, and has over forty million foreign patents in different formats accessible to anyone interested (United States Patents and Trademarks Office, 2011).

Limitations and exceptions

International Aspect

Most of the limitations an exceptions regarding intellectual property are the same in both domestic and international law. The minor differences that appear in domestic legislation are products of the uniqueness of different governments, their legislations, and their economic capabilities. The reason for most similarities is that most countries use international law as a reference point for their own legislation.

However, as mentioned earlier, developed countries have more similarities in their legislation than developing countries. Europe and the United States, for instance, operate regionally as opposed to each country operating in autonomy. The benefit of this element is that there is more synchrony in legislation, in sharp contrast to developing countries. European countries use the same currency throughout the entire region, as is the case with the United States.

The effect this has in connection with international intellectual property legislation is that the impact of infringement in one country is likely to have ripple effect on other countries in the same region through trade. This aspect also makes the degree of loss higher, thus the need for stricter penalties for infringement. Although there are measures put in place by the international community, it is up to the individual nations to guard against infringement through domestic legislation.

For instance, most domestic laws have provisions for a grace period to enable the registration of patents, which is why developing countries have been pushing for the amendment of international intellectual property legislation. Developed countries possess a financial advantage in this regard thus posing a danger of loss of inventions and financial gains that come with them to wealthier countries.¹⁵ The case of the Kikoi and conflict over its patent that occurred in 2011 between Kenya and Japan is one such example.

Although the United Nations does its best in ensuring that infringement is kept at a bare minimum, it lacks adequate enforcement mechanism, providing states with another reason to improve their efforts of preventing the occurrence of such infringement. In a seizure statistics report by the Global Intellectual Property Centre (GIPC) in the United States, China is mentioned as the number one source of counterfeit goods within the United States, accounting for 62 per cent of the total seizure as per 7^th January 2013. Regardless, there is little that the international community can do for the American government except for the proposition of sanctions.

Domestic Aspect

Most legislations on intellectual property offer limitations and exceptions to rights of the rights holder regarding his or her creation. One such limitation is the prevention of the rights holder in the furtherance of his or her rights from infringing another person’s intellectual property rights. When a rights holder has an innovative idea that involves the use of another inventor’s patented idea or product, it may cause an infringement of the patent of the other. In such a case, it is prudent for the former inventor to seek the express permission of the latter inventor or risk penalties for infringement.

In matters concerning patents, the possession of a patent by the inventor does not exempt him or her from punishment caused by the infringement of another person’s patent. For instance, in the construction of a significant improvement on a machine that is patented by another inventor, the inventor that seeks to perform such improvement must first seek permission from the patenting inventor. This scenario underscores the case with most domestic and international patents.¹⁶ The right of the inventor is thus limited to his or her invention.

Another limitation is that the inventor may develop any invention as long as such invention does not go against the law either nationally or internationally. For instance, “the government of the United States provides, in the Atomic Energy Act of 1954, that it would not grant a patent whose objective is solely for the utility of nuclear material or atomic energy in an atomic weapon”¹⁷. A similar scenario in the international arena is the opposition of some countries of the development of nuclear weapons by Iran. The reason for this stand is that it goes against international protocol as well as posing a danger to international security.

As an exception, most governments provide in their legislation their right to access intellectual property for the benefit of the nation. As an example, the American government through the Patents and Trademarks Office gives a provision in its legislation concerning patents that exempts it from the protection given against infringement by other people. However, the creator of any work that is used by the government in such manner is entitled to compensation from the state.

Another limitation is that most of the rights that governments grant under intellectual property have a time limit. For instance, in the United States, the period provided is twenty years, after which the rights relinquish to the state, allowing the use of a previously patented product or idea by the public. During the period of the patent or copyright, the rights holders are able to enjoy a monopoly in transactions concerning the patented or copyrighted products or ideas. The monopoly allows the inventor of creative rights to enjoy exclusive rights of sale, use, and reproduction. This provision varies from one government to the other depending on national and international provisions regarding the same.

The implication of such a monopoly is that it increases the financial profitability of the invention to the inventor.¹⁸ It also bars competition on the product or idea as others are not capable of experimenting on the invention without the permission of the inventor or use the ideas that subsist the invention to create a competing one. While this element might offer an advantage for the inventor, critics suggest that such requirement is a hindrance for competition because the time bar occasions prevent improvements on the idea or product thus reducing the potential to enjoy the invention’s optimal capacity with regard to its use.

Priority

In the enforcement of intellectual property rights, domestic legislation should take priority as the rights defined in the legislations are more specific to the country and consider aspects such as security and the economy. For instance, the United States Atomic Energy Act of 1954 prevent individuals from obtaining patents solely for the development of atomic weapons as these pose a threat to national security. International legislation is supposed to be a guide or point of inference when formulating laws and regulate transactions through agencies such as WIPO.

Proactive measures for the prevention of infringement should also take priority over counteractive measures to cope with infringement such as the installation of mechanisms for the seizure of counterfeit and pirated products at borders.

The American government through its defence agencies has initiated these measures. The Customs and Border Protection office in conjunction with the Immigrations and Customs Enforcement agency of Homeland Security have instituted Operation Pangea V for the global enforcement of intellectual property rights through combating illicit crime organisations that sell illicit drugs to its citizens. In 2012, the two agencies took down six hundred and ninety seven websites used in the peddling of counterfeit drugs and the transportation of pirated and counterfeit items such as watches and bags through express carriers and private mail.

In addition, the directive by Vince Cable, the business secretary of the United Kingdom to amend local legislation to accommodate changes that suit the expectations of the consumers is a move that has the potential of reducing piracy and counterfeiting in most countries. It is his suggestion that consumers should be given more freedom to access intellectual property while maintaining the rights holder’s protection, which is similar to the provision of the American government of institutions that facilitate access to intellectual property to the public, in a safe environment under the government’s control.

Conclusion

Innovation has been playing a central in the comfortable existence of humankind. However, most innovations and inventions would not be possible without the incentive of protection of the intellectual property rights of the inventors.

These rights include the right to earn profits from the inventions for a specific period and protection from infringement from other individuals by means of duplication of the invention or sale of the same without the inventor’s permission. There are various efforts being conducted by the international community to ensure the enforcement of intellectual property rights. However, these efforts do not provide adequate protection form infringement and it is the prerogative of all governments to provide domestic protection to themselves and their citizens.

Reference List

Adelman, M, R, Rader, and G, Klancnik, Patent Law in a Nutshell (Thomson West Publication 2007).

Barret, M 2012, Emmanuel Law outlines: intellectual property, Aspen Publishers, New York.

Dinwoodie, G, Hennessey, O, Perlmutter, L, and Austin, G, International Property Law and Policy (LexisNexis 2008).

Durham, A 2009, Patent Law Essentials: a concise guide, Praeger Publishers, Westport.

Helfer, R, Intellectual Property Rights in Plant Varieties: International legal regimes and policy options for national governments (FAO Publications 2004).

McJohn, S, Examples and Explanations: intellectual property (Aspen Law & Business 2012).

Merges, R, P, Menell, & M, Lemley, Intellectual Property in the New Technological age (Aspen Publishers 2012).

Miller, A & M, Davis, Intellectual Property: patents, trademarks, and copyrights (Thompson West 2000).

Mueller, J, An introduction to Patent Law (Aspen Publishers 2006).

Ramcharan, R, International Intellectual Property Law and Human Security (Asser Press 2013).

Ryan, M, Knowledge Diplomacy: global competition and the politics of intellectual property (Brookings Institution Press 1998).

Sampson, G and B, Chambers, Developing Countries and the WTO: Policy approaches (United Nations University Press 2008).

Smith, G, and R, Parr, Intellectual property: licensing and joint venture profit strategies (Wiley 1998).

Swiss Federal Institute of Intellectual Property: Counterfeiting and piracy (2011). Web.

United States Department of Homeland Security: Customs and Borders Protection, IPR (2012). Web.

WIPO: Inter-sessional Intergovernmental Meeting on the Development Agenda for WIPO, (WIPO 2005).

Footnotes

1. Graeme Dinwoodie, William Hennessey, Shila Perlmutter, and Graeme Austin, International Property Law and Policy (LexisNexis 2008).
2. Arthur Miller, and Michael Davis, Intellectual Property: patents, trademarks, and copyrights (Thompson West 2000) 120.
3. Martin Adelman, Randall Rader, and Gordon Klancnik, Patent Law in a Nutshell (Thomson West Publication 2007).
4. Swiss Federal Institute of Intellectual Property: Counterfeiting and piracy (2011). Web.
5. WIPO: Inter-sessional Intergovernmental Meeting on the Development Agenda for WIPO (WIPO 2005).
6. Margreth Barret, Emmanuel Law outlines: intellectual property (Aspen Publishers 2012) 107.
7. Gary Sampson, and Brandee Chambers, Developing Countries and the WTO: Policy approaches (United Nations University Press 2008) 64.
8. Sampson and Chambers, 74.
9. Robin Ramcharan, International Intellectual Property Law and Human Security (Asser Press 2013) 112.
10. Gordon Smith, and Russell Parr, Intellectual property: licensing and joint venture profit strategies (Wiley 1998) 119.
11. Robert Merges, Peter Menell, and Mark Lemley, Intellectual Property in the New Technological age (Aspen Publishers 2012).
12. Lawrence Helfer, Intellectual Property Rights in Plant Varieties: International legal regimes and policy options for national governments (FAO Publications 2004) 98.
13. United States Department of Homeland Security: Customs and Borders Protection, IPR (2012). Web.
14. Ramcharan, 56.
15. Michael Ryan, Knowledge Diplomacy: global competition and the politics of intellectual property (Brookings Institution Press 1998) 41.
16. Stephen McJohn, Examples and Explanations: intellectual property (Aspen Law & Business 2012) 72.
17. Janice Mueller, An introduction to Patent Law (Aspen Publishers 2006) 88.
18. Sampson and Chambers, 78.