This document discusses balancing intellectual property protection with public interest for development. It outlines that development can take economic, capabilities, and cultural forms, and the appropriate balance depends on a country's level and type of development. Flexibilities in IP laws, like limitations and exceptions, allow access to education, research, libraries, and digital technologies which is important for building human capacity and innovation that drives development. The document argues countries should use policy space flexibilities to access knowledge for capacity building and should later strengthen protection of areas where they have gained innovative abilities.

1. Copyright and Related Rights: Striking a balance between IP Protection and the Public Interest Dr Susan Isiko Štrba Consultant, IP, Trade and Development
National Intellectual Policy (IP) Workshop: The Strategic Use of IP for Technological Capacity Building, Economic Growth and Development
Mbabane, 19 -20 May 2014

2. Outline
•Types of development
•Balance between effective protection and larger public interest
–Why, what and how
•Some policy considerations
•Conclusions

3. Types of development
•Why it matters
•Economic development
–GDP, employment, trade balance
•Development as capabilities
•Cultural development
•Level and type of development determine how to balance (policies, etc)

4. Balance between effective protection and larger public interest
•Why need to balance
–IP is one tool for economic growth and development
•Level of development
•Need human capacity to innovate/create for development
–Creators are users of IP
–Users are authors (esp online environment)
–Need access for development
•Private rights v public interest

5. Balance (2)
•Selected key areas
–Education
–Research
–Libraries and archives
– Information Communications Technology (ICT)
–Special needs

6. Balance (3)
•Options for balancing
–Use of flexibilities or limitations and exceptions
•In Berne Convention, TRIPS, etc
–Categories of flexibilities
•Not protect
•Protect but allow free use under certain circumstances
•Protect but allow remunerated use, either by permission of copyright owner or through a relevant authority
–specific examples

7. Balance (3) – flexibilities for education and research
•Type of access for education
–Access to learning and teaching material for development
•Minimum vs effective education
•Development as capabilities
–Distance education
–Quality education
•Research
–Research for development
•Available flexibilities for research
–Quotation
–Illustration
–Fair use or dealing
–Voluntary licencing
–Compulsory licencing (including outside Berne Appendix)
–Parallel importation

8. Balance (4) – flexibilities for libraries and archives
•Selected flexibilities for consideration
–Preservation
–Reproduction and safeguarding
–Library lending
–Translation
–Parallel importation
•International exhaustion
–Technological protection measures

9. Balance (5) – digital environment
•Access to ICT
–Selected issues in the digital environment
–The WIPO internet treaties (WTC, WPPT)
•Rights management information
•Technological protection measures
–Regulation of internet services
•Policies for Libraries, educational and research institutions
•Developing countries mainly users of ICT
–ICT for development
–software
•Protection of computer software (TRIPS)
–Exceptions: reverse engineering

10. Shortcomings of limitations and flexibilities
•Quantities allowed too few
•Restriction on types of use
•Restriction on types of users
•Some are simply not workable, eg Berne Appendix,
•Assume users always get possession of copyright work (example of software)

11. Balance (6) – persons with special needs
•National realities
•International solutions
–Treaty for blind, visually impaired or otherwise print disabled (Marrakesh Treaty)
–First international instrument focusing on access through L&Es in the digital environment
–National policies ahead of international
•Treaty a harmonization of practices

12. Balance (7) – other international trends
•Treaty on L&Es for educational and research institutions?
–Harmonization
–Respond to technology
•Treaty on L&Es for libraries and archives?
–Respond to technology
–harmonization

13. Made in Swaziland – how balancing would work
•Strong protection where have comparative advantage
–Eg handcraft (both economic and cultural development)
•Strong protection for cultural development
–Eg Traditional dances
–folk lore
–research on indigenous knowledge systems etc

14. Made in Swaziland
•Allow access to develop capabilities
–Imported educational/research material
–Software
•How would this help?
•Possible to develop ICT through exceptions
•Tap into rich knowledge, (Linkokwing University of Creative Technology – Sidvwashini)
•Develop open source software
•Then protect after acquiring enough innovative capacity

15. Policy Considerations (2)
•Use of limitations at minimum cost to industry
•Should be for Capacity building
–Social and developmental costs of uneducated citizenry
–Technology vs human capacity
–Use of policy space for capacity building
•Flexibilities relating to technology have great potential in knowledge
•Swaziland net importer of ICT, work toward developing its own

16. Conclusions
•Need to protect vs access in order to create
•Policy space available to allow access
•Balancing exercise should aim at building capacity to innovate and create, (and create more), and earn more money in future

17. Recommended
•Susan Isiko Štrba
International Copyright Regulation and Access to Education in Developing Countries: Exploring Legal and Quasi Legal Solutions, Brill/Martinus Nijhoff, Graduate Institute Series, 2013.

18. Thank you
Dr Susan Isiko Štrba
Consultant, Intellectual Property, Trade and Development
Senior Research Affiliate, University of Minnesota, Trade and Development Program
isikos@hotmail.com