Copyrights And Patents In The Caribbean And Developing Nations.

I spend a lot more time than I would like to discussing copyright and patent issues within a local and regional context here in the Caribbean. Some people probably think I'm a real pain when it comes to this, a layperson armed with a keyboard and no legal background. I am a layperson. I have no legal background. But that doesn't mean that I can't write about these issues. The world is full of writers who aren't specialized in the things that they write about. Sure, it lends some credibility to people if they do have a legal background, but the sad truth is that if a Law affects you, it's your business to research that Law and make sure it protects your interests.

I create content. I'm what Lawrence Lessig calls a creator of copyrighted content. I'm also a consumer of copyrighted content - from music to reading to movies. I'm a consumer of patented content - from the times when I use the overpriced pharmaceuticals to using things most people take for granted. All of this gives me a right to not only criticize intellectual property law, but also to communicate a vision. And what disturbs me most about the Caribbean is that people seem to think that you need to have a law degree to be critical of laws or enforcement of laws.

They think that the world is run by lawyers. And because they think that, lawyers do run a large part of the world. Do you really think lawyers are doing a brilliant job at running the world? And do you really think that by looking around that Laws have a basis in Ethics? Aren't Ethics and Law supposed to coincide?

So I'm tough on issues related to copyright and patent when it comes to CARICOM and the Caribbean - and specifically Trinidad and Tobago. Why? Because I Live Here, and I am affected by copyright and patent law in my daily life. That I've participated in electronic discussions related to it at global levels including WSIS, I've had it out with Microsoft advocates and Richard Stallman when my view didn't agree with theirs. Truly, I do not think that I am an expert, but if forced to put myself against a yardstick I would have to say that the yardstick would have to be defined by the level of interest and discussion - and with whom. I've stood up to COTT in their own display booth and criticized them - openly and also to their faces. I've been a speaker at regional Free Software and Open Source conferences. I've publicly criticized intellectual property issues for years, and even at the level of the Caribbean Internet Governance Forum.

The only defense I hear from these folks and others is, "But you don't understand that this is the way that the law works." They are mistaken, I do understand the laws, how they work, and I think there is room for improvement for people throughout the region - not just people who get paid to be 'experts'.

I've never really communicated a vision to put all of these criticisms in perspective. That's my fault. So here's the vision to put everything in perspective.

A warning to people who are defending the present intellectual property systems of the globe right now: This will hurt you more than it will hurt me.

The Vision: General Copyright

I see a region that is rich in material, full of cultural diversity which I'd rather see celebrated than used by politicians to divide and conquer. As long as people don't affect the rights of others and do not harm them, I think that they should be able to do whatever it is that they feel compelled to do.

If there's an orange tree in a park, I don't see why someone cannot eat an orange from that tree. If the orange tree is on private property, that's where the problems start. Maybe the owner of the property doesn't eat all the oranges, but most people would agree that the person who owns the land where the tree is has the right to do with that property what they need to - as long as it doesn't affect others negatively. If they choose to let the birds have the fruits, that is their right. If they choose to share the fruits with friends and family, that is their right. If they choose to let the fruit fall and seedlings form so that they can plant them elsewhere, that is their right. If they choose to pick them and sell them to other people, it is their right. If they choose to let people come and pick from their tree without a problem, that is their right - but it is not the right of others who do not own the property to decide how that property is used. Unless, of course, you live in a communist state where there is no private property.

My vision of copyright and patent law is not too different. The basis is that anything I create is by default, mine - that is implicit in copyright law everywhere except, again, in a communist state. Everything in this vision is based on that fact. If I choose to write something and make it available to the public, that is my right. If I choose to write something and sell it to others, it is my right to do so and anyone who distributes what I do without permission is infringing upon my rights.

Right now, most attorneys should be reading this and nodding their heads. Copyright infringement, or piracy, is where most attorneys, lawyers and organizations stop with intellectual property because - pulling no punches - that's how they get paid. To aspire for more is to work for free, and is generally considered bad business, but this is where some of these 'experts' need to start reading. Commoditization of things created is not an end. It's the way that things are done now because of laws as they are now. I'll get into that later.

Where the fruit tree example fails is where I really begin because I've already communicated the basis of present copyright law. I'm pointedly ignoring patents at this point because most attorneys do as well. We'll get to them later.

The Vision: Public Domain

When one says Public Domain, an attorney working on defense during a copyright infringement sees a light at the end of the tunnel. After all, if something has become part of the public domain, there is no way to state that any copyright has been infringed.

Intellectual property is fruit that doesn't rot on the ground. It sits there unless someone uses it, sort of like data. After a period, some of this intellectual fruit moves into the public domain; this allows for unused intellectual fruit to be used by others. It's healthy; it's the basis for innovation. If anyone bothers surfing over to FreeCulture.cc and reading Lawrence Lessig's book online, you'll note that Disney and many other corporations and entities gained exclusively from the public domain at their startup. I have yet to meet a person in the region who claims expertise in the area of copyright that has read this book.

Within the same text, Lessig says that developing nations should exercise some sovereignity when it comes to intellectual property, and I agree - not blindly, but after rigorous thought that extends beyond law.

The Caribbean imports more copyrighted material than it exports. I don't have exact statistics, but take a look around in the Caribbean. Walk on the street. Go to a music store and count the local CDs versus the imported CDs. Go to a software store and look (very hard) for a locally made CD of software. Go to a movie rental place and count the locally made movies as opposed to imported movies. Go to a bookstore and count the locally written books and compare them to the imported books. Go look around at your Caribbean. Sure, we have Nobel Laureates, but if you ask the publishing companies that work with these Nobel Laureates - the market of these books is probably largely insignificant in the Caribbean as opposed to a small thing called the rest of the world.

Count the websites on the internet that are from the Caribbean and compare that number to the rest of the world. Count the number of podcasts. Count the number of articles written by Caribbean authors - in any language - and quickly the larger context becomes plain. The Caribbean, in the grand scheme of things, is simply not producing much intellectual property. That doesn't mean that people of Caribbean origin aren't producing copyrighted material. They may well be living in a developed nation, like V.S. Naipaul does, and copyrighting their material elsewhere. Software developers, musicians, poets, writers, and even people involved in the movie industry. The diaspora of the Caribbean produces or helps produce a lot of intellectual property. But it's not from the Caribbean. The people may be, but the material is not. Why?

There are any number of answers. Maybe they prefer living in England and the United States, or similar nations. Maybe they couldn't buy into a market that is already copyrighted, so they are doomed to work for others who can afford to purchase rights to remix the work of others. Maybe they like cold weather and do not like mangoes. It's all speculation, but it's apparent to an observer who decides to look around that the Caribbean imports more intellectual property than it exports. That's an intellectual property imbalance. That's an economic imbalance. When you look outside of the rules that bind us and the lawyers who tighten the rules, you'd have to be a complete imbecile not to see a trend toward loss.

Make some of the imported intellectual property public domain, and a better balance is struck. Economically, this puts people in the region - in fact in any developing nation - on better footing. Sound like sacrilege? The United States did it when it was first founded! The United States only started worrying about intellectual property when the flow out became an approximation of the flow in - in other words, when the United States started producing as much as it imported, it started worrying about copyrights and so on.

Why are nations that are developing not bootstrapping themselves? We'll get to that.

Vision: Producing

A lot of material is produced in the region. Calypso, reggae, other forms of music, writing, video... but again, in the grand scheme of things, the market for locally produced products within the region is low. Some people are surprised, but if you look at the population of the world and compare it to the population of the Caribbean and roll it up into a nice thick wad, you can smack that look of small-minded surprise off of their faces.

The Caribbean is a small market. If you want to make money, you have to export. This means that you have to produce. And part of innovation is recreating from the public domain, just as many of the large intellectual property regimes do. Consider Bill Gates, who said:

...the best way to prepare [to be a programmer] is to write programs, and to study great programs that other people have written. In my case, I went to the garbage cans at the Computer Science Center and fished out listings of their operating system.

In other words, friend Bill went and looked at the works of others and innovated from the work of others. That Microsoft now profits by assuring that others cannot do the same means that Bill and others (such as Disney) closed the door behind them after they burned the bridge they came over.

This is where Open Source software, Free Software and open content make inroads. This is where the balance is to producing, and therefore exporting. Yet I have yet to hear one regional expert do more than talk about such things fleetingly, as if they do not matter. They do matter. It allows more people to create. Creation, or production, is a necessary step to export something. And yet, the commoditization of intellectual property in other ways pays the bills for many of these people who advocate the present IPR systems, so they actually profit by not mentioning it. It's almost as though they are afraid their bank accounts will spontaneously combust.

The Caribbean, and any developing nation, needs to produce intellectual property. We know that. But we need the fertile ground in which to plant the seeds of innovation. Surely, innovators deserve to profit - but that right also has to be balanced with the right for people to create in the first place. If you have little money and can't afford licensing something, you either become a pirate or someone who cannot afford to create.

The Caribbean needs it's own Carmina Burmana. In a society as remixed as the Caribbean's diverse people's are, we aren't allowed to remix as much as we are remixed. Isn't that peculiar?

But developing nations now - unlike the United States - don't seem to have the intestinal fortitude to do something like that. Instead, they are ready to allow their citizenry to be called criminals. Pirates of the Caribbean. In Guyana, I watched pirated movies complete with FBI notices on cable television. In Trinidad and Tobago, I can go rent or buy a DVD from any rental place that pays the government of Trinidad and Tobago an annual fee.

The vision, somewhere, of creating, producing and using intellectual property is not consistent in the Caribbean region; it's enforcement is a charade and the insult to the citizens of these countries is hidden behind shady promises made when it comes to IPR. Copyright, as many attorneys, lawyers, businesses and governments is incomplete. They talk about the parts that they profit from, not the parts that benefit the community and local economy more. In this vision, a few of them might crawl out of the woodwork and talk about the public domain more than what they profit directly from. But then we start mixing Ethics and Law again, which these days seems to be like oil and water no matter how economically important it is.

The only way one can better one's condition, though, is by bettering the conditions of others - otherwise one is just 'better' by maintaining power over others, which is largely considered unethical and in some cases illegal - such as rape.

Patents

Patents are a completely separate issue from copyright, though it is often lobbed in with trademark and copyright law under the umbrella of 'Intellectual Property'. If an attorney professes to be an expert on 'Intellectual Property', ask them if they have specialized in patents, copyrights or trademark law. They are not the same. They never have been, and they never will be. This is one of the points that Richard Stallman has been trying to make about patents, copyrights and trademarks in the context of software all the way up to the WSIS level, and he's absolutely right. They are different.

So let's break it down simply for patents in the developing world. A lot of things have been patented. A lot of patents depend on other patents; for rapid innovation outside of a patent holder, a license fee is required. Thus, if you want to innovate rapidly, you need to have money to purchase the rights to use the patents which your patent is derived from. If your head is spinning, think of it this way: If I own a patent on the wheel (which an Australian fellow did recently), and you decide you want to use my patent to develop a car, then... you have to pay me a licensing fee if I decide to license it to you. That italicized part is important; as an example, IBM is infamous for using the right to use things as strategic business leverage.

Patents extend to hardware, software, and now even life. Pharmaceuticals are a big part of this, especially in the developing world.

Software patents were a big issue at the World Summit on Information Society for some members of [t:Civil Society], but the powers that be (big business and the governments they influence) assured that the issues of software patents were minimized, and largely less relevant within the WSIS itself. Blame whomever you wish, the process which allowed big business to have this effect was based on a false sense of democracy which assumed that the governments involved were informed and were influenced by the needs of each country's citizenry instead of big business. And of course, big business has the citizenry at heart as long as the citizens don't become competitors- Sit down, shut up and buy what we sell you.

But even advocates of Free Software and Open Source at the WSIS made the mistake of treating software patents as a standalone case, and that mistake was forced by the context of the WSIS itself. The patents of a piece of software are not too different in concept from that of life. To say that nobody else can come up with the same concept through independent innovation is to say that Isaac Newton and Gottfried Leibniz could not, given the same data, come up with calculus independently. Newsflash: They did. In the present legal patent system, calculus would probably be tied up in court, halting progress and innovation during the proceedings while the lawyers of either side argue and... make money off of their clients. And if one side can't afford good representation, they lose.

The developing nations of the world have already suffered at the hands of Intellectual Property. The Enola Bean affected Mexican farmers. The examples in Vandana Shiva's book, 'Protect or Plunder? : Understanding Intellectual Property Rights', largely point to patenting of things that already existed in India - but also she points to Brazil and the manner in which Brazil has been dealing with HIV medications.

Brazil exercised sovereignity and leveraged for cheaper medications. This caused a bit of a problem with the WTO, specifically related to TRIPs agreements. You can get some background on what is still going on with that in 'Drug Patent Feuds'. So now patents, or in the broader term 'intellectual property', define who get to live or die. If you can't afford it, you can't live. Unless, of course, you stand up and exercise some self interest as Brazil has and continues to. But you don't read much about that, perhaps. In fact, this might be the first time you heard that this is happening. Why? Because the same 'experts' in the developing nations make their livings... protecting the rights of people who can afford their services. Check your bank account before you start thinking about a patent.

Back To The Big Picture

Most people in development don't seem to understand that achieving developed nation status involves developing faster. It means innovating faster. It means creating faster. It means making sure that money flows in faster than it flows out (the basis a national economy), but that the money spent is used to the best benefit of the citizens of the country. It means that when a developed nation does one thing in unit times towards progress, a developing nation has to catch up to the developed nation and do that one thing as well.

Development is a race. Most people don't seem to understand that. How do you win a race when you're far behind? You run faster - or you take a shortcut - or both. Is taking a short-cut to assure that the citizens of your country immoral? That's a good question, and an important question for developing nations to ask themselves whenever they are reminded of a TRIPs agreement. In the case of Brazil producing cheap medications so that the lives of it's citizens are not immediately forfeit seems moral to me. Is what Brazil doing legal? It depends on who you talk to. Ask any lawyers you know whether they learned cardiopulmonary resuscitation in Law School. That might have come in after the course on Ethics.

Consider this statement by Vandana Shiva from 'Protect or Plunder? : Understanding Intellectual Property Rights' (I suggest you disregard the review at the link and make up your own mind):

The globalization of western-style IPR systems, in a world of deep inequalities, is a direct assault on the economic rights of the poor.

Now that's a sweeping statement which is built upon within the book itself, and is something that most advocates of the present Intellectual Property system do not like. Why? Here's another real world issue: How poor are the people who are supporting the present global systems as related to copyright and patents? If you're reading this and you're making money off of the present IPR system, and you're willing to defend it - you're suspect. Global statistics can show that the majority of the world is not making money off of intellectual property. Indeed, it's quite the opposite - do we think only a few people can innovate? That belief is implicit in these myopic arguments. They reek of self interest, and yet - 'piracy' is rampant, yet the recording industries are showing consistent increases in profits. Where's that theft? The response from present IPR advocates is that the profits could be higher - but the basis for that response holds as much water as saying that profits could be lower. It might rain tomorrow. It might not. It rains when the forecast says it won't, and it doesn't when it says it will. It's a stupid basis, but one sung by parrots worldwide. Each of the parrots makes money singing it. Think about it.

Conclusions

There's a lot of talk and uncoordinated noise in the Caribbean regarding 'intellectual property', which from what I have seen largely ignores what is happening to the countries on the big continents toward the North and West of us.

I'd love to see some attorneys for the region working toward things like WIPO's Development Agenda such that their country (and in the case of CARICOM, region) benefits from the public domain and is not further handicapped by intellectual property issues. I'd like to see one NGO from the region - at least one - sign on to something along the lines of this NGO Group Statement for WIPO. I'd like to see lawyers work with the Creative Commons to localize Creative Commons licenses.

I'd like to see a lawyer stand for justice. There are some out there. Lawrence Lessig comes to mind. Robin Gross as well, and Robin has been to Trinidad and Tobago and knows what a 'doubles' is. Really. Where are the local equivalents? Are there no innovators of Law in the Caribbean when it comes to Patents and Copyrights? Are people afraid to try to change things? I do not understand. Where are they? Or is it that we expect to become World Cup winners by eating the scraps off the Intellectual Property table? Where we are committed to a complete lack of public domain for works in our lifetime because of Sonny Bono?

What I do understand is that organizations such as the Copyright Organisation of Trinidad and Tobago make people pay twice for the same thing under the premise of 'protecting the rights of artists in the region'. I was even told in person that writing would not qualify for protection but the recorded spoken word would. So I asked about podcasts, and was given a shakey 'no'. I asked about upholding the Creative Commons licenses, and I got funny looks.

OK, so I'm not a lawyer. But there's a vision behind what I write about - and it's not perfect, and entails lots of questions that need to be asked. You can't blame businesses for being unable to produce creative works, you can't blame people... if the ground is not fertile for such work to happen. Reconciliation with the Revised Treaty of Chaguramas 1976, Article 66, and that reconciliation has to include how CARICOM expects to allow nations to develop without being strangled by accumulative costs for buying into innovation. There's not enough oil, bananas or sugar to deal with what has become a respectable market.

Now when someone starts rocking the boat and at least dealing with half of the issues that really contribute toward the Caribbean as a developing nation, I'm interested. I'm riveted. I've been writing and talking about it for years. I'd love to see someone who is recognized as an 'expert' really talk about the issues instead of discussing them as a passing business fad. I'd like to see some attorney or politician say, "We can't do things because the laws impede development and progress", instead of, "We can't do this because of these laws and that's that!"

This sort of thing extends deeply into how the people of the region use the internet - maybe not the basics, but certainly the higher level of how content is made available, what software is used, and how much it costs as well as who sells it.

If you want creativity, you need to plough the field. Sewing seeds on the cold hard stone of a lack of public domain and an expensive on ramp for patents is foolish. Don't talk about the symptoms. Cure the disease. And by all means - feed the people.