Jamaica Observer | 9 July 2008

Intellectual property in the EPA: broad scope, huge impact - Part 1

BY Dianne Daley Contributor

The historic Economic Partnership Agreement (EPA) skilfully brokered last December between the Caribbean Forum of African, Caribbean and Pacific States (CARIFORUM) and the European Community (EC) is impressively wide in its scope, but the impact of its implementation in countries such as Jamaica is still largely unexplored.

Intended as a secure platform for reciprocal trade in goods and services while complying with rules of the World Trade Organisation (WTO), the EPA seeks to assist CARIFORUM states with poverty reduction and the achievement of economic growth through sustainable trade with Europe.

The EPA covers the full gamut of the Intellectual Property Rights (IPRs) which, in the globalised economy, are inextricably tied to trade in goods and services. With an entire chapter devoted to Innovation and Intellectual Property, the EPA parties recognise the key role "thatthe protection and enforcement of intellectual property plays. in fostering creativity, innovation and competitiveness". "determined to ensure increasing levels of protection appropriate to their levels of development." (Art 131). Articles 134 to 138 of the EPA focus on innovation while Articles 139 to 164 concern intellectual property.

This four-part article attempts to uncover what the implementation of the IPRs obligations under the EPA may mean for Jamaica, against the backdrop of an already complex national IPRs regime, which is still a partly fledgling one.

A careful examination of the substantive requirements of the EPA with respect to key forms of IPRs such as copyright, trademarks, geographical indications, industrial designs and patents reveals that CARIFORUM states will have to engage in the accession to and/or implementation of a myriad of international agreements and adopt several international recommendations. Also mandated under the agreement is the regional harmonisation of IP laws and regulations even at the level of IP rights management and enforcement. With at least (10) international IP agreements (including treaties and protocols) to be implemented one has to consider whether these arrangements will unleash enough benefits on CARIFORUM nationals to offset the inevitable burden of treaty obligations.

It must be observed that the IP provisions of the EPA, in some respects, surpass the requirements of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) which internationalised IP rights standards to an unprecedented level upon its adoption in January 1995. Jamaica became a WTO member in March of the same year and to date has not met all of the TRIPS requirements. The EPA IP Chapter incorporates TRIPS requirements with some extras.

Importantly, what will definitely amount to a quantum leap in IP standards throughout CARIFORUM should be viewed in the context that adequate and effective enforcement of IPRs ought to take into account the developmental needs of these states, provide a balance of rights and obligations between right-holders and users and allow the EC Party and the signatory CARIFORUM states to protect public health and nutrition. Perhaps most notably, as our countries struggle to balance national health challenges with the rights of pharmaceutical patent holders, the EPA stipulates that nothing in the agreement is to be construed as impairing the capacity of each country to promote access to medicines.

Coverage of IPRs

The types of IPRs to which the EPA applies include copyright (including the copyright in computer programmes, and related rights); utility models; patents including patents for bio-technological inventions; protection for plant varieties; designs; layout-designs (topographies) of integrated circuits; geographical indications; trademarks for goods or services; protection for databases; protection against unfair competition and protection of undisclosed confidential information on know-how.

Copyright and related rights

In respect of copyright and related rights, Article 143 of the EPA requires parties to comply with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) and to endeavour to accede to the International Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (otherwise called the Rome Convention).

Jamaica has partly met these obligations having acceded to the WCT and the WPPT together dubbed the "WIPO Internet Treaties" in 2002, but is yet to implement them. A draft Bill to amend the Copyright Act, which has been under discussion for some time, is intended to address implementation.

The WIPO Internet Treaties seek to safeguard copyright material and performances over the ubiquitous cyberspace: undoubtedly beneficial to rights holders but a bit worrisome for libraries and large content providers who would prefer fewer regulations on content and more public access. The WCT enhances the protection granted to copyright owners under the Berne Convention for the Protection of Literary and Artistic Works to which Jamaica acceded as at January 1994 shortly after passing its Copyright Act of 1993. Jamaica also acceded to the Rome Convention at that time.

The Rome Convention provides international protection for related rights (i e the rights of performers, record producers and broadcasting organisations), but protection is mainly in the form of equitable remuneration and not proprietary rights. The Rome Convention was not support by US. The WPPT enhances the protection granted by the Rome Convention by providing economic rights to performers and record producers in respect of musical performances and is therefore regarded as a positive development for Jamaica’s music industry. The US acceded to the WIPO Internet Treaties in 2002 and its implementation of the Treaties under the Digital Millennium Copyright Act has resulted in new revenue streams for Jamaican performers and producers whose material is played in the US.

Article 143 also requires EPA parties to facilitate the establishment of arrangements between their respective collecting societies with the purpose of mutually ensuring easier access and delivery of licences for the use of content at the regional level throughout the territories of the EC Party and the Signatory CARIFORUM States so that right-holders are adequately rewarded for the use of such content.

This should also be considered a positive development for the copyright community as it aims to improve the flow of royalty revenues to CARIFORUM states. The challenge is how to ensure net inflows of licence fees to our region. It remains to be seen how already existing regional mechanisms such as the Caribbean Copyright Link (CCL) and the Jamaican Copyright Licensing Agency (JAMCOPY) (which has been leading the charge for a regional system in relation to printed published material) will be integrated into the EPA’s multilateral licensing regime.

Industrial Designs

Protection for industrial designs is addressed in the EPA under Article 146 by virtue of which the Parties agree to endeavour to accede to the Hague Agreement for the International Registration of Industrial Designs (1999).

The Hague Agreement provides a facility for the international registration of an industrial design. The registration takes effect in any of the member countries selected by the applicant. With a membership of only 48 states, however, this Agreement has not gained wide acceptance and is mostly popular among European and African countries. So far, Suriname and Belize are the only Caricom States to have acceded. While not required under the EPA to accede to this Agreement, Jamaica would be expected to endeavour to accede.

The EPA parties are also obliged to provide protection by registration of industrial designs for at least 5 years, renewable at a cost for consecutive five-year periods up to 25 years from the effective date of filing. Unregistered designs must be protected for at least three years from the date on which the design was made available to the public in one of the signatory countries.

Jamaica provides registered protection for industrial designs under the Designs Act (1937) for a non-renewable term of 15 years. Designs are also protectable under the Copyright Act where they comprise artistic works. The TRIPS Agreement stipulates a minimum duration for protection of 10 years in all.

The Designs Act (1937) is expected to be replaced by a new law currently in draft form which has so far been geared towards compliance with the standards of protection required by the TRIPS Agreement. This draft law may need to be reviewed in the context of the EPA. (PART II will address Trademarks and Geographical Indications)