Fri 20 Jul 2007
Intellectual Property Rights: Making Them Work For Us
Posted by Amer under Foreign Matters , South AsiaThis is a somewhat dated issue, but I recently came across this wonderfully well document example by Abul Kalam Azad of how the WTO can work for developing countries like Bangladesh.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a by-product of the WTO’s Uruguay Round that many developing countries felt was something that they had little use for. The utility of this treaty however was fully realized by none other than our own Miles, when Anu Malik (aka the Captain Morgan of Bollywood’s music industry) tried to swipe “Phiriye Dao Amar Prem” for the Bollywood film Murder. Although it took them a while to work through the due process, Miles was eventually able to get some copyright-style justice:
“As compensation for the ‘injury’ caused to the business interests of the petitioners, 50 million rupees were demanded from Anu Malik, Mahesh Bhat, Saregama India Ltd and RPG Global Music; in addition, ‘total reimbursement’ for the expenditure incurred in filing the case also was demanded. A court order was also sought for appointing a receiver or special officer to seize the entire lot of soundtrack software from Saregama’s Dum Dum studio. Besides this, the band’s lawyers demanded that the respondents ‘should be directed to disclose upon oath details of cassettes and CDs distributed by them to various vendors and retails’.” - (Rock ‘n Roll in Bangladesh: Protecting Intellectual Property Rights in Music, Abul Kalam Azad)
This just goes to show that when properly informed, countries like ours really can make the most of otherwise obtuse treaties.
July 21st, 2007 at 12:34 am
IP is a modern day slavery for poor countries. At one end you have to spend thousands of dollars to protect your right, which disproportionately hurts poor countries like Bangladesh. One rare case cannot be compared with billions of dollars we might lose in the long term.
July 21st, 2007 at 2:40 am
Amer,
A personal thanks for tackling this issue. It took a while for my Bangladeshi friends and I to convince our Indian friends here that the song had been swiped from Miles. It involved a lot of frustration, a lot “maybe YOUR guys stole it” before it came out in the news that Miles was suing!
What many of us forget is that in the long term R&D in Bangladesh is only possible if intellectual property rights are protected at home and abroad. When that happens, innovations will come from Bangladesh and there will be no more of that “modern-day slavery” that Hasi talks about.
July 21st, 2007 at 6:35 am
Hasi, I can understand your concerns about the negative implications of IPR for developing countries. However, as AsifY points out, IPR is an important part of the incentive structure for not just scientific R&D but also in the arts. Lets face it, we don’t live in a utopia where intellectual-intensive goods that have positive social utility are produced free of cost or are public goods. Without IPR the people involved in many of the industries producing the commodities that have an IP component wouldn’t be making them. If you and I could jack their work for free, how would they earn their way in the world, and what incentive would they have for producing that work? Sounds harsh, but thats just human nature.
I am not saying that IPR and unfettered capitalism is not without its shortcomings. I agree that IPR does restrict the access of many goods (pharmaceuticals, etc) that can have important social welfare implications for the developing world and that the free market fails developing societies here. What should be happening/does happen in the cases of those social welfare IPs (patents to drugs, etc) is that national/international governemnt should be interceding with a policy cocktail to provide the necessary social safety nets.
That way essentials IPs get to the people that need them, while still maintaining the incentive structure needed for progress in an (un)fortunately neoclassical world.
July 21st, 2007 at 3:55 pm
AsifY & Amar,
Do you know “one click shopping”, mouse, wheel, and the word “live” is copyrighted by multinational. Copyright has become a legal venue for taking generic ideas private.
I spent thousands of dollars anually on copyrights myself. Not because I want to restrict people using them, but to stop these multinational companies from claiming them for themselves.
There is good, bad or “rights” in IPR. The more money and lawyers you have, the more “rights” you have.
Do you know “windows” as an OS was generic, well before Microsoft re-invented it? But can you tell me one company that have been able to prosecute Microsoft in this regard?
Having been threatened by lunatics, and having threatened few companies myself, I well aware of sad reality of IPR. Something BD is not well prepared for.
If Bangladeshis want to copyright there work, the can just go to Kolkata and copyright them.
We sadly don’t have roads and infrastructure for even factories, let alone for serious R&D. Top of that our cops are a joke, so there won’t be any enforcement of IPR anyway.
You are seriously going to hurt the pharmaceuticals and other companies in BD.
Also understand this, most researcher spend there life trying bring some innovation, not to become millionaires by IPR.
The principle of copyright is to compensate innovators so that it encourage more innovation and hence increase social benefit.
But currently it compensates too much relative to the social benefit it produce.
Copyleft on the other hand has done wonders for the tech world, why can’t artist accept that? Can any artist claim there work as entirely original without any inspiration from anyone else?
July 21st, 2007 at 4:43 pm
Hasi, AsifY and Amar:
Have a look: http://www.ipo.gov.uk/tm/t-find/t-find-adp?propnum=0913372001
The word ” Bangladesh” is trademarked by……….
Tnx
July 21st, 2007 at 6:21 pm
Hasi,
As Amer has put it, we’re not arguing for copyrights over social welfare. But there is a genuine debate to be had there instead of a blanket refusal to strengthen our IP laws and regulations.
To say “We sadly don’t have roads and infrastructure for even factories, let alone for serious R&D. Top of that our cops are a joke, so there won’t be any enforcement of IPR anyway.” is to sadly miss the point my friend. How do you know that people haven’t refused to invest in the infrastructure because of lack of IP regulations. Cops enforcing IP rights is exactly what Amer and I are arguing for.
“Also understand this, most researcher spend there life trying bring some innovation, not to become millionaires by IPR.
The principle of copyright is to compensate innovators so that it encourage more innovation and hence increase social benefit.”
Which one is it? Do they or do they not want to be compensated monetarily for their innovations? Are you arguing for caps on their income? If so, how does that encourage other people to choose innovation/R&D fields as professions?
Lastly, this trivialisation of artists’ works is something I see from a lot of people back home, even educated ones. It seems that you work in the software industry. How many software engineers do original work that in not indebted to someone or the other? Do you single them out for lack of copyleft following?
July 21st, 2007 at 6:25 pm
correction to the last para: It seems you work in the software industry. I’m sure no one forces you to go for copyleft, but that you do it of your own volition. If artists do not want to give up their rights to their works, that is their prerogative. As it is are poorly compensated for their works by the public at times (Miles), without having people with larger markets steal it (Anu Malik).
July 21st, 2007 at 10:46 pm
“Lastly, this trivialisation of artists’ works is something I see from a lot of people back home, even educated ones.”
You know if you find a cure for cancer you can copyright it for 20 years. With clinical trial and everything, you get to exercise that for 5 years.
Where as Mickey Mouse is copyrighted for 70+ years.
Do you think thats fair? How does it help the society.
“Which one is it? Do they or do they not want to be compensated monetarily for their innovations? Are you arguing for caps on their income?”
Copyright is not a fundamental right.
The society grants the privilege of copyright in the hope of it will benefit the society.
Just because I took a shower today, that does not entitle me to get paid. Same case with innovators.
For BD, copyright will have negative effect. We will spend more on royalty, than the innovation and benefit it can generate.
We are least 20 years in behind before we can take proper advantage. More ever it will hurt local companies.
“How do you know that people haven’t refused to invest in the infrastructure because of lack of IP regulations”
Because China does not have strong IPR and hasn’t stopped companies from investing there.
Do you think most BD internet users would be able to afford to go online if you payed for the original windows?
BD market has a long way to go before it can be beneficiary of copyright.
Copyright itself is not the problem, the devils in the details.
“Cops enforcing IP rights is exactly what Amer and I are arguing for.”
That might sound great philosophically, but in reality you asking for another rule which cops can abuse to make money. (That would be the result).
July 21st, 2007 at 11:02 pm
Asify,
“It seems you work in the software industry. I’m sure no one forces you to go for copyleft, but that you do it of your own volition. If artists do not want to give up their rights to their works, that is their prerogative”
Copyleft was an example. Software industry don’t allow owners that right in many cases.
Example HTML. Sure you can copyright your code. But the industry made near impossible to enforce that copyright(you can view the code, opposed to .pdf, .doc format). It has benefited the industry, Internet is the biggest growth industry in the US. So subtle piracy is encouraged.
Just imagine an Internet with word document as the primary format. The horror …
July 21st, 2007 at 11:58 pm
Heheheh…. no I agreed with your assessment of the tech industry benefitting from copyleft. I misread the original comment and that’s why I made the correction.
How is Mickey Mouse’s copyright hurting anyone the way cancer medicine patents would? Are children in the third world dying because they can’t see cartoons?
No I agree that software copyrighting would definitely hurt the middle-class BD users. Or after a time it might give some Bangladeshi guy the incentive to come up with his own OS. You simply cannot rule out either possibility.
As for cops being corrupt, that’s a lazy excuse. If you extend that logic, why even have laws about anything, since it becomes just another avenue for the corrupt cops to make money? We need both good laws and good enforcers. We need to start somewhere.
July 22nd, 2007 at 12:00 am
And look, neither Amer nor I are asking for obviously idiotic copyrights on “showers”, “our national flags” or “dhaaner shish/nouka/laangol”.
July 22nd, 2007 at 3:55 am
Amer, good choice for a topic.
Perhaps we ought to look at IP policy within the context of the specific industry and country in question.
Strong IP does not necessarily lead to innovation. I prefer to interpret innovation a bit broadly and at the level of the firm: gaining the ability to develop a new product design or to master a new process. Once a firm can do that with respect to itself, then it can extend it to its cohorts, to the industry, the nation, etc. In other words, one has to learn to innovate first.
I don’t think a strong IP policy is always very helpful, particularly where the industry is just getting started, because innovation can happen through imitation as well. This is how first Japan, then the other South East Asian countries, and now India and China have successfully closed the technology gap between them and the industrialized countries.
Even within a given industry and country, to foster innovation, I think it pays better to use a more nuanced and pragmatic approach. If you look at the initial growth stages of the Indian Pharmaceutical sector, for the domestic market, they allowed IP protection for process, not for product. This in turn allowed local companies to make any drugs as long as they could develop it using a different method of production. Lack of IP protection in India’s case actually allowed tremendous process innovation to occur which ultimately gave its companies the ability to enter and then dominate the global generic drug market. Once they mastered the process side of things, Indian drug makers began investing more on product R&D, which is now allowing them to play with the big boys in the global markets.
Interestingly, only after its companies started to gain the ability to design their own drug molecules, did India sign the WTO agreement, which forces it to offer IP protection for pharmaceutical products as well.
I believe the Bangladeshi firms are trying to follow the same strategy because TRIPs gives an IP holiday for LDCs in the Pharma sector until 2016. So even at the WTO level, there is the recognition that a strong IP is not necessarily good policy for all countries and all industrial segments at all times.
July 22nd, 2007 at 4:30 am
Guys, great to read about something other than minus-2 for a change. Many years ago, when napster first appeared, I thought about working on this issue. This never happened. But if I did, it would look something like this:
http://www.againstmonopoly.org/
July 22nd, 2007 at 7:05 pm
AsifY,
“How is Mickey Mouse’s copyright hurting anyone the way cancer medicine patents would? Are children in the third world dying because they can’t see cartoons?”
The point being why should society agree on a law to provide money to you, when your innovation does not create social benefit. Morever its unfair compensation compared to your peers. Its highway robbery.
July 22nd, 2007 at 9:42 pm
Hasi, I think AsifY said everything I would have said in response to your comments, and more. AsifY, thanks for carrying the discussion while I was indiposed.
Mahmood Farooque, I agree with what you are saying about perhaps focussing on specific industries, and industries in specific countries for a more nuanced (and perhaps correct) perspective on the impact of IP on innovation.
In particular, I like this statement:
“I believe the Bangladeshi firms are trying to follow the same strategy because TRIPs gives an IP holiday for LDCs in the Pharma sector until 2016. So even at the WTO level, there is the recognition that a strong IP is not necessarily good policy for all countries and all industrial segments at all times.”
The concessions that LDCs have in the TRIPS and other WTO agreements are exactly the type of intercessionary policy measures that I referred to back in #3. It is my impression that really honest economists opposed to IPR are not discounting the effects of IPR on producing innovation. Rather, I think their concern - like ours, for the most part - is on the distribution of this IP good. Creative and bold policy initiatives - like greater concessions to the LDCs - is exactly what is needed to correct these distributional issues.
July 23rd, 2007 at 12:49 am
“The point being why should society agree on a law to provide money to you, when your innovation does not create social benefit.”
Two points about the social benefit bit. First off, I think its very difficult to predict with perfect foresight the social utility from any given innovation/creation. Second, as William Posner from U Chicago and many other economists/juricists point out, almost all common laws are in response to economic reasoning. Clearly defined property rights for goods have evolved because their absence gives a social utility that is less than what would have happened without the presence of those laws. The theory is still valid for services and intellectual properties
“Morever its unfair compensation compared to your peers. Its highway robbery.”"
This is really confusing. IP royalty/use payments are the provisions of services/goods to the producers of those products. Doesn’t it sound fair to be paid for one’s work? Furthemore, how is it unfair to one’s peers, if everyone is offered the same protection from costless distribution of their products?
July 23rd, 2007 at 1:15 am
Amer,
Your question has already been answered in previous post. Please read them if you haven’t done already.
July 23rd, 2007 at 1:40 am
Nope, Hasi, sorry. I re-read the previous posts and I don’t see my questions answered.
July 23rd, 2007 at 5:35 am
I’m inclined to wholeheartedly agree with the nuanced comments of Mohd Farooque. Innovation in many cases is likely to be preceded by imitation (after all, babies learn by copying!!)–and countries need to provide for regimes that provide some scope for imitation at the early stages. Historically, almost all countries imitated before they invented–including the US, Germany (product patents in pharma only in 1967), Switzerland (product patents in pharma only in 1977), Japan (’87) etc.
TRIPS and other international IP instruments are to be strategically used by countries and standards of protection calibrated according to thier local needs. There’s no point being hostile to TRIPS now–as most countries have signed it and are bound by it. The best you can do is to exploit “flexibilities” inherent in this international instrument and calibrate protection according to local needs.
I extract parts of a note that I am current authoring for a publication in India.
“Contrary to popular perception, India did have a pharmaceutical product patent regime since 1911—thanks to the British and their propensity to gift colonies with law/policies that looked similar to theirs. And yet, this gift did not help create any indigenous pharmaceutical industry in India—not very surprising, given that most countries need to imitate first before inventing and strong IP regimes stand in the way of permitting such “imitation”. This colonial regime also resulted in extremely high drug prices—a US Committee investigating drug prices the world over found that in 1961, Meprobamate, an anti-anxiety pill cost more than twice the price in India, as it did in the US!
Independent India was therefore keen on breaking away from its colonial past and putting in place a regime that reflected “national” interest. A committee headed by a sagacious judge, Rajagopala Ayyangar undertook a quick survey of patent regimes the world over and found that most industrialized nations began by installing regimes that permitted some level of technological imitation. It also found that the chemical industry in India was reasonably strong and had the potential to reverse engineer drugs. It therefore recommended the abolishment of product patents and the introduction of process patents for pharmaceuticals. As process patents are considerably weaker than product patents, the idea was that such patents would not prevent the domestic industry from reverse engineering existing drugs and manufacturing generic versions via alternative processes. The success of the Indian generic industry today is testimony to the far sightedness of Ayyangar’s policy.
India has imitated for more than 30 years now—and quite successfully too. Its expertise at reverse engineering and finding alternative processes are more than amply illustrated by Eli Lilly’s attempt to prevent generics from introducing competing version of its anti-infective Cefaclor by patenting 56 different processes—and yet, within no time, Ranbaxy found the 57th process!
The question now is: is this the right time to transition to a product patent regime? Unfortunately, India doesn’t have the luxury of asking that question anymore, since India already did so in 2005, pursuant to a TRIPS obligation. But what India can do is calibrate how much protection it wishes to grant to pharmaceutical inventions.”
Shamnad Basheer
http://spicyipindia.blogspot.com/
July 23rd, 2007 at 2:53 pm
FDI in limited sectors does a little for Bangladesh economy
UNCTAD LDC Report 2007 says
Star Business Report
A UN report on least developed countries has pointed out that maximum foreign direct investments in Bangladesh now concentrates on some sectors like telecommunications, banking service or oil and gas exploration, which contribute a little to its economy.
Debapriya Bhattacharya, executive director, Centre for Policy Dialogue (CPD), released the report titled UNCTAD LDC Report 2007 : Knowledge, Technological Learning and Innovation for Development at the CPD office in Dhaka yesterday.
The report said FDI received in Bangladesh like other LDCs neither contributes to any major technology transfer nor generates significant employment, rather it makes separate enclaves into the host country.
“The limited contribution is due to the type of integration of trade negotiation capacity into host countries’ economies, the sectoral composition of FDI, the priorities of policies enacted by LDCs and the low absorptive capacity of those countries,” it said.
Bangladesh ranked 5th in attracting FDI among the 50 LDCs in value term but in term of per capita income Bangladesh ranked 34.
The United Nations Conference on Trade and Development suggested that Bangladesh and other LDCs should adopt new policies to narrow the technology gap between LDCs and the rest of the world to escape the current trap of poverty, underdevelopment and marginalisation.
The report said rapid technological advances in the developed countries and the relatively slow advancement in most of the least developed countries have caused such a huge technological gap.
On intellectual property rights (IPRs), the report said an LDC like Bangladesh is lagging behind in IPRs as patenting tendency has decreased remarkably in the lest developed countries.
Due to the negative trend in patent Bangladesh will be bound to import technology from developed countries in a long term, it said, pointing to the fact that IPRs, particularly patents, promotes innovation only where profitable markets exist and firms posses the required capital, human resources and managerial capabilities.
Similarly licensing is out of reach for firms without a certain level of absorptive capacity, particularly in the countries with low GDP, the UNCTAD report said.
It said Bangladesh lags behind in all three indicators: Per Capita Income, Human Resource Development and Economical Strength.
Bangladesh’s per capita income is still at US$ 400 level where the average income to determine a country as LDC is $750, according to the report.
It further said Bangladesh’s investment in primary and secondary education is still very poor and its export market is dependent largely on readymade garments (RMG), which proves the country’s poor strength in economy.
The report, however, noted that the country had made progress in FDI inflow in value term, garment export and in value of remittance.
At the report launching ceremony, the CPD executive director hailed the caretaker government for enhanced allocation in information technology and research sector, but expressed caution about implementation.
Pointing to Bangladesh’s good potential in developing human resources and applying information technology, the CPD hoped that the country would be able to fulfil the Millennium Development Goals (MDGs), if the resources could be used properly for human resource development.
Professor Mustafizur Rahman, research director, Dr Uttam Kumar Deb, senior research fellow, Anisatul Fatema Yousuf, additional director (Dialogue & Communications), and Khondaker Golam Moazzem, research fellow, also attended the function.
July 23rd, 2007 at 6:40 pm
Amer,
You have said
““Morever its unfair compensation compared to your peers. Its highway robbery.””
This is really confusing. IP royalty/use payments are the provisions of services/goods to the producers of those products. Doesn’t it sound fair to be paid for one’s work? Furthemore, how is it unfair to one’s peers, if everyone is offered the same protection from costless distribution of their products?”
On previous post I have mentioned:
“You know if you find a cure for cancer you can copyright it for 20 years. With clinical trial and everything, you get to exercise that for 5 years.
Where as Mickey Mouse is copyrighted for 70+ years.
Do you think thats fair? How does it help the society.
Copyright is not a fundamental right.
The society grants the privilege of copyright in the hope of it will benefit the society.
Just because I took a shower today, that does not entitle me to get paid. Same case with innovators.”
Additionally I would like to add you can always get compensated by selling it your work as a service. You don’t need to restrict others from copying your product. And even if others copy yours, you can copy them.