1. Copyright and Development
Rami Olwan
ARC Center of Excellence Creative Industries and
Innovation , Australia
Global Meeting on A2K , KL, Malaysia

2. Outline
• The different meanings of development
• Old development agenda
• Views on intellectual property (copyright) and development
• New development agenda
• The way forward

3. Questions
• What does development mean?
• What is the relationship between intellectual property
(copyright) and development?
• How could intellectual property laws, particularly copyright assist
developing countries to achieve development?
• Do developing countries need strong intellectual property
(copyright ) laws?
• Why are the old and new development agendas important for
the international intellectual property system?

4. Meanings of Development
• Meanings outside the IP context (economic, social and
sustainable development )
• Meanings within the IP context

5. Meanings Outside IP
• Development is a contested term between scholars,
organisations and development experts in developed and
developing countries.
• There are different meanings to development and these include:
- Economic development (economic growth and wealth
distribution)
- Social development (improving living standards)
- Sustainable development (environmental, economic and social
well- being).

6. Meanings Outside IP
• Development constitutes one of the most important challenges
facing the international community.
• Development has been widely acknowledged in many
international conventions and forums (including the United
Nations Millennium Summit).
• Generally, development encapsulates the improvement of
individual’s lives through providing them with greater education,
skills development, income and employment.

7. Meanings Within IP
• Diverging views on the meaning of development within the
context of IP
• Theories originally formulated in the 1960s, which suggest that a
system of intellectual property “western style intellectual
property "is a necessary part of the evolution of colonised states
from “under-developed” to “developed.

8. Old Development Agenda
• The international movement of international intellectual
property has been from developed to developing countries.
• The first contact of developing countries with the global
intellectual property system occurred in the late nineteenth
century when few developing countries acceded to the Paris and
the Berne Conventions.
• Developing countries were not happy with the international
intellectual property system and wanted it to take into account
their interests.

9. Old Development Agenda
• Brazil called for a revision of the Paris Convention to take the
economic developmental needs of developing countries into
consideration.
• India also called for a revision of the Berne Convention to give
wider access to copyrighted materials for poor developing
countries.
• An “international copyright crisis” was caused as a result of the
debate between developing and developed countries on how the
international copyright system could be structured.
• This matter was resolved later in the Berne Appendix (Paris
1971).

10. The Berne Appendix
Article I
Faculties Open to Developing Countries
(1) Any country regarded as a developing country in conformity with the established
practice of the General Assembly of the United Nations which ratifies or accedes to
this Act, of which this Appendix forms an integral part, and which, having regard to
its economic situation and its social or cultural needs, does not consider itself
immediately in a position to make provision for the protection of all the rights as
provided for in this Act, may, by a notification deposited with the Director General
at the time of depositing its instrument of ratification or accession or, subject to
Article V(1)(c), at any time thereafter, declare that it will avail itself of the faculty
provided for in Article II, or of the faculty provided for in Article III, or of both of
those faculties. It may, instead of availing itself of the faculty provided for in
Article II, make a declaration according to Article V(1)(a).

11. The Berne Appendix
Article II
Limitations on the Right of Translation
(1)
Any country which has declared that it will avail itself of the faculty provided for in this Article
shall be entitled, so far as works published in printed or analogous forms of reproduction are
concerned, to substitute for the exclusive right of translation provided for in Article 8 a
system of non-exclusive and non-transferable licenses, granted by the competent authority
under the following conditions and subject to Article IV.
Article III
Limitation on the Right of Reproduction
(1) Any country which has declared that it will avail itself of the faculty provided for
in this Article shall be entitled to substitute for the exclusive right of reproduction
provided for in Article 9 a system of non-exclusive and non-transferable licenses,
granted by the competent authority under the following conditions and subject to
Article IV.

12. Margret Chon (“IP from below”)
“In the current rule-generating and rule-interpreting environment of
intellectual property globalization, the presumption has been that
intellectual property is good because it promotes economic growth...
Intellectual property can no longer afford to be insular, as if it does
not affect or is not affected by the provision of other global public
goods. Explicit connections must be made between intellectual
property and other global public goods addressing basic
development needs, including food, education as well as the already
highly publicized health care sector.”

13. James Bessen and Eric Maskin
(Balance)
“Intellectual property protections should be limited to achieve a
balance that prevents direct copying but that encourages value-
adding imitation. Sometimes intellectual property policy is described
as balancing the protection of incentives to create ideas against the
benefit to society of disseminating those ideas.”

14. The Gower Review of IP (2006)
“The economic evidence and, in particular, the history of currently
developed countries suggest that a single one-size-fits-all approach is
inappropriate. Stronger IP protection can ultimately reap rewards in
terms of greater domestic innovation in developing countries and in
developing countries with sufficient capacity to innovate. However, it
has little impact on innovation in developing countries without the
capacity to innovate, and it may impose additional costs. Given that
different IP regimes are more appropriate at different stages of
development, it would make sense to allow individual nations to
choose when to strengthen their IP regimes, rather than to seek to
enforce a certain perspective.”

15. Ruth L Gana
“It is important for the modern debate to link intellectual
property laws to the social realities of societies in developing
countries. Not only may this yield more effective approaches to
securing enforcement of intellectual property rights in developing
countries, it is also presents the possibility that western based
intellectual property laws may have some real impacts on industrial
innovative activity in these countries, thus contributing to the
economic welfare of the Third World.”

16. Joseph E. Stiglitz
“Strengthening intellectual property rights often means raising the
price of a key ingredient into research— knowledge— and thus it
is possible that an excessively “strong” intellectual property
regime may actually inhibit the pace of innovation”.

17. Why Copyright is important?
• The arrival of the digital technologies provides great
opportunities for developing countries to access information and
to acquire knowledge.
• Copyright protects a wide range of tools, which are vital to the
education, health, technical literacy and development of
developing countries.

18. CIPR Report (2002)
“Indeed, it is arguably the case that many poor people in developing
countries have only been able to access certain copyrighted works
through using unauthorized copies available at a fraction of the price
of the genuine original product. We are therefore concerned that an
unintended impact of stronger protection and enforcement of
international copyright rules as required, inter alia, by TRIPS will be
simply to reduce access to knowledge products in developing
countries, with damaging consequences for poor people”.

19. Consumers International Report
(2006)
“Access to educational materials especially in the field of higher
scientific and technical education is crucial for the development of
human resources in order to contribute to the economic progress of
developing countries. Copyright laws are proving to be an
impediment to greater access to knowledge in the public domain”.

20. Public Domain
• Scholars have stressed the importance of having an open vibrant
“commons” or “public domain” for achieving development.
• “A rich public domain and fair access to copyright protected
material enhances creativity and the production of new works.”
The International Federation of Library Associations and Institutions.

21. Voluntarily Mechanisms
• Several intellectual property and internet scholars have stressed
the importance of promoting and using voluntarily mechanisms
such as CC and FOSS for achieving development within
developing countries.
• FOSS should be seriously considered in developing countries as
it could bring many opportunities to the region.

22. New Development Agenda
• The Doha Development Round 2001
• The WIPO Development Agenda 2004
• Access to Knowledge Treaty (draft 9 May 2005)
• The rise of civil groups in the discussions of the structure of the
international intellectual property system.

23. The Doha Development Round
• In 14 November 2001, members of the WTO agreed at the Doha
Ministerial Conference three texts and these include:
i) The Ministerial Declaration,
ii) The Decision on Implementation- related Issues and Concerns;
and
iii) The Declaration on the TRIPS Agreement on Public Health.
• The Doha Declaration recognize the right of developing countries
under TRIPS to use to the fullest possible extent the flexibilities
contained
under the agreement to protect public health and promote access to
medicines for all.

24. WIPO Development Agenda
• Brazil and Argentina submitted the first proposal to establish a
development Agenda during WIPO’s General Assembly (27th
September to 5th October 2004).
• The proposal was subsequently supported by 12 other
developing countries(known as the Friends of Development).
• The WIPO Development Agenda was formally established on 4
October 2004.
• A Committee on Development and Intellectual Property (CDIP)
was established to implement the decisions of the Provisional
Committee on WIPO and Development Agenda (PCDA).

25. The WIPO Development Agenda
The PCDA has agreed to a set of 45 “Proposals” covering six clusters of
activities. These are:
(a) Technical Assistance and Capacity Building,
(b) Norm-Setting, Flexibilities, Public Policy and Public Knowledge,
(c) Technology Transfer, Information and Communication Technology
(ICT) and Access to Knowledge,
(d) Assessments, Evaluation and Impact Studies,
(e) Institutional Matters including Mandate and Governance;
(f) Other issues

26. The WIPO Development Agenda
• Dr. Kamil Idris former WIPO Director described the Agenda:
- “This is a historic day for the Organization and its member states.
The adoption of the Development Agenda is testimony to the
international community’s commitment to promote the evolution of
an IP system that addresses the needs and concerns of all countries.”
- “This milestone decision is an important and positive step towards
ensuring that the international intellectual property system continues
to serve the public good by encouraging and rewarding innovation
and creativity in a balanced and effective manner.”

27. Access to Knowledge Treaty
• Part 3 – Provisions Regarding to Copyright and Related Rights Limitations and
Exceptions
• Article 3-2 - Provisions Regarding Distance Education
• Article 3-3 - The Rights of Persons with Disabilities
• Article 3-4 - First Sale Doctrine for Library Use
• Article 3-5 – Internet Service Providers
• Article 3-6 – Digital Rights Management and Measures Regarding Circumvention of
Technological Protection Measures
• Article 3-7 – Non-Original or Creative Works
• Article 3-8 – Orphan Works
• Article 3-9 - [Retroactive] Extensions of Term of Protection for Copyright and Related
Rights
• Requirements When Terms of Protection for Works Protected by Copyright and
Related Rights Have Been Previously Extended to Exceed TRIPS Requirements
• Article 3-11- Works for Which an Author Has Alienated Economic Rights
• Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries

28. Access to Knowledge Treaty
Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries
(a) Members agree that:
i. In the past quarter of a century, technical progress has changed the ways and means of
transmitting information and knowledge;
ii. Developments that have taken place in the field of international period reflect greater
freedom of exchanges;
iii. The needs and concerns of the developing countries should be taken into consideration
with a view to giving them easier and less costly access to education, science, technology
and culture
iv. The Appendix to the Berne Convention has been of limited benefit to developing
countries, due to complex procedures, high transaction costs,
limitations on exports and the limited scope of works and uses; and
v. The Appendix to the Berne Convention is not a viable mechanism to promote access to
works that are distributed on the Internet.

29. Access to Knowledge Treaty
Article 3-12 - Compulsory Licensing of Copyrighted Works in Developing Countries
(b) A new protocol for access to copyrighted works in developing countries will be
developed for compulsory licenses for copyrighted works that will feature:
12
i. Simpler procedures,
ii. Lower transaction costs,
iii. Faster decision-making,
iv. Appropriate scope of works and uses, including for translations in major
languages,
v. Permission to export to other developing countries that have issued compulsory licenses
for the same works,
vi. Feasible implementation for works distributed in electronic formats, including over the
Internet, or in distance education.
(c) The protocol described in (b) will be set out in the Regulations to this agreement.

30. General Remarks
• There are some problems with the intellectual property laws in
developing countries.
• Intellectual property and its relationship to development, health,
food, and education remain poorly understood to most policy
makers in developed and developing countries.
• Most intellectual property laws are highly restrictive and do not
take into consideration the economic and social conditions of
these countries.
• They do not benefit from the flexibilities contained in the
international copyright treaties mainly Berne, TRIPS and WCT.
• The copyright laws in developing countries are also out of step
with technology and threaten to stifle creativity and innovation.

31. The Way Forward
• Developing countries have to learn from the Old Development
Agenda by formulating new tactics and policies that they could
use in the current international debate around intellectual
property.
• Developing countries have to be active participants of the New
Development Agenda and contribute to making it a reality.
• Developing countries have to rethink their intellectual property
laws with a ‘development lens’ to meet their needs and
accelerate their economic and social development.

32. Thank You!

33. References
- Peter Yu, “A Tale of Two Development Agendas” (2009) 35 Ohio N.U.
L. Rev. 465
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1349967
- WIPO and the Development Agenda
<http://www.wipo.int/ip-development/en/agenda/overview.html>
<http://www.wipo.int/ipdevelopment/en/agenda/recommendati
ons.html>
- Margret Chon, Intellectual Property and the Development Divide
(2006) 27 Cordozo Law Review, 2821- 2912