2012

CHALLENGES OF INTERNATIONAL CONVENTIONS IN DEVELOPING NATIONS

Shadrack Kipchirchir Kimutai Moi University 1/1/2012

Introduction Whereas international intellectual property rights have had a considerable in most of the developed countries, especially those in Europe and the Northern America, it still faces some challenges in its application in most of the developing countries. The major international conventions which are under scrutiny here are Berne convention, UCC convention, Rome convention, WIPO performance and Phonographs WIPO copyright treaty and finally Trips.

Successes and failures of Berne convention Berne convention is the oldest and the most adopted convention. Being so, it has laid a number of platforms on which most intellectual property laws and conventions are built on. In 1963, a special the question of incorporating special provisions for developed countries was first placed in an African copyright meeting held in Brazzaville, Congo (Otike). This resulted to this matter being raised in Berne signatories meeting held in Stockholm in 1967. Due to the fact that these provisions created a rift between the developed members and the developing members of the convention, a middle ground was reached in Berne revision in 1971 which allowed developing countries some leeway within the rigid Berne requirements. This allowed the developing nations to acquire some rights in translation of protected materials from other nations for purposes of teaching, research and other scholarly activities and reproduction on protected works for use under the provisions set by the three step test which had been incorporated in the Stockholm revision of Berne convention. Furthermore, any reproduced materials where to be used locally besides this, these revisions had incorporated sections that allowed these developing nations to safeguard their works both locally and abroad even if weak intellectual property legislation was in place and thus avoid losing its indigenous works to the developed nations. This convention had a number of successes and failures. Successes Through its incorporation of these special provisions, Berne convention attracted new members, most of who had just attained their independence. This boosted the areas of coverage of the convention. Berne convention both directly and indirectly offered a referential platform for the setting up of local legislations for protection of intellectual property in the developing countries. Berne required member states to provide strong standards for copyright law.
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Berne instituted Automatic protection and National treatment provisions which made it easier for developing member states to protect their citizens work abroad without needing to sign additional agreements with the individual member states.

Berne convention allowed some degree of flexibility regarding duration of protection as described under article 7.8 of the convention as incorporated in the Paris revision. Hence new member states, most of who where developing nations, found it somewhat flexible to suit their legislature

Failures Berne convention had no enforcement or disciplinary mechanism, and was solemnly based on trust amongst member states. This has resulted to the abuse of its provisions by most developing member states. The convention lacks consistency in that member states can under Article 7.8 apply their protection duration which defines the duration of protection of works from that nation even outside that nation The rule of shorter term as stipulated by the convention is not attractive to most nations especially developing nations which will rather keep their works protected longer than 50 years for literal artistic and cinematographic works and 25 for photogrammetric works. Some developed nations, most notably USA and Canada do knowingly contravene the principle provisions of the Berne by charging statutory charges from owners of literal works from outside USA before protecting them. Berne convention failed to incorporate some non print works i.e. software

Successes and failures of Universal Copyright Convention (UCC) UCC is another major copyright protecting convention which is closely modeled on Berne. Developing nations under this convention where those from the Americas as the convention came into being initially as the Pan-American copyright convention and USSR copyright body. Essentially, UCC came into being due to the members of the Pan-American convention unwillingness to comply with some of the Berne requirements (Encylopaedia Britannica). Successes While all the developing states in the Americas had by then acquired independence and had sound legislative capability, the UCC allowed these nations to safeguard their works outside their nations with much lenient requirements than those of Berne.
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The convention adopted a number of provisions from Berne such as automatic protection and national treatment thus the developing nations works became automatically protected across the UCC states however, for formality, some statutory charges were imposed by some member states such as Canada and USA.

It allowed some form of rigid overlap with Berne in that its member states could reach a bilateral agreement with members of Berne and vice versa. It was quite attractive to developing nations in that, it had few legislative requirements that it needed the member states to comply with than Berne.

Failures With the collapse of USSR in 1989, most of its members including USA and virtually all of the former members of the USSR have joined Berne. This has made UCC weaker than Berne and thus less popular amongst developing nations. UCC protection periods where much shorter than those of Berne. This has made its member states, most being developing nations, to comply with it even if they wish to have a longer protection period. UCC was restrictive to multilateral and bilateral intellectual property agreements between its member states and non member states who were not members of Berne It failed to incorporate some non print works such as software. It lacked an enforcement body and like Berne, it was grounded in trust amongst member states.

Successes and failures of Rome convention Developing countries make up a considerably large percentage of the Rome convention. This according to Otike(2012), this is attributed to the importance in which music dancing and other creations by such nations citizens contribute to national heritage. The Rome convention affords protection to those who are tasked with disseminating this heritage to the outside world. By protecting media stored in phonograms, vinyls, compact disks, DVDs, cassettes, VHS, and other related devices, this convention is set to promoting the music, film and allied sectors in these vibrant developing nations in the process boosting their economy, disseminating their culture to other regions and also safeguard the works from being abused by individual who may

have otherwise taken advantage of the gap left by UCC and Berne. This convention also extended its protection to include broadcasters and producers. Successes It was built on the Berne foundation hence it extended similar protection that had been afforded literal, cinematographic and photographic works to media stored in phonograms, optical disks and magnet tapes and drives. It acknowledged that non print works were also to be protected. It checked the abuse of the gaps left by Berne and UCC thus requiring their member states to extend protection to the phonograms and related media devices Failures It was open to only members of UCC and Berne conventions hence non members to these two conventions could not be its signatories. Hence developing nations had to join one of the conventions before being members of this convention. It did not effectively extend its protection to some creative works such as softwares.

Successes and failures of WIPO Performance and phonographs treaty (WIPP) of 1996 This treaty was built on the Rome convention and also Berne convention. It redefined and strengthened the protection accorded to performers and producers of phonograms, vinyls, compact disks, DVDs, cassettes, VHS, and other related devices. Developing nations stood a chance of gaining from this extended protection since by this time, the Rome convention was deemed no longer effective. Furthermore, some developing nations where not members of the Rome convention hence had the leeway to abuse the rights set under the convention (Drahos). Successes It expanded protection of vinyls, compact disks, DVDs, cassettes, VHS, and other related devices, globally hence accommodating developing nations locked out by the Rome convention requirements. It ported moral and economic benefits and economic benefits to performers and producers respectively. It reaffirmed that non print media was also worth protecting

Failures It failed to protect materials from being shared online and in document databases. It failed to take into consideration computer software.
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Successes of WIPO Copyright treaty (WCT) of 2002 According to Drahos (), During the WIPP confrence of the year 2000, it was discovered that the new form of communication namely internet and other electronic platforms where rapidly growing and becoming a new platform in which copyright infringement could take place. Since no other prior convention or legislation had covered this, it was deemed necessary to incorporate them. Most of the developing nations by then had acquired access to these electronic platforms. The chief successes of WCT were the incorporation of protection to materials that are or can be circulated on the internet and material databases. This extended to softwares (computer programs) and databases.

Successes Agreement on Trade Related Aspects of Intellectual Property (TRIPS) TRIPS is built on solid foundation layer by Berne convention of 1886 and the Paris Convention for the Protection of Industrial Property of 1883 in that it carries forward the Berne principle of national treatment and automatic protection plus large sections of industrial property protection from the Paris convention (WTO). According to Otike () , Developing countries stand to gain from this convention since it has mechanisms that allow a nation to press the infringing nation to yield and alter its laws so as to make the nations works protected in its infringing ally in the treaty. Therefore TRIPS can be said to have achieved to following successes. It has established minimum standard form many forms of intellectual and industrial properties including copyright. TRIPS is built on Berne ,WTC and several other conventions which allows it to have a very broad base TRIPS requires member states to grant protection to computer data and programs TRIPS requires member states to have provisions in their laws that provides copyright protection TRIPS has a dispute resolution mechanism through which a World Trade Organization (WTO) member can force other members to comply TRIPS has provision that make it flexible to developing nations which is similar to that of Berne.

Works Cited
1. Drahos, Peter. Developing Countries and International Property standard-setting. Study Paper. Cambridge: IPR Commission, 2002. 2. Encylopaedia Britannica. Universal Copyright Convention. 2012. 21 4 2012 <www.eb.com/topic/618051>. 3. Otike, J. Information Policy Studies:International Conventions Lecture notes. Eldoret: NP, 2012. 4. WTO. Trade related aspects of Intellectual Property rigths. 16 January 2004. 2012 April 18 <www.wto.org/english/tratop_e/trips/intel_e.html>.