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Intellectual Property Rights, Innovation and Sustainable Development

Arab Regional Dialogue, organised by ICTSD, Bibliotheca Alexandrina and UNCTAD
Alexandria, 26-28 June 2005

Description | Programme | Participants | Documents

Programme

26 June

9.30-10.00 Welcome and Introduction to the Dialogue
(Dr. Ismail Serageldin, Ricardo Meléndez-Ortiz, Pedro Roffe)

10.00-11.00 First Session: General trends and the emerging international IP architecture

(Moderator: Ricardo Meléndez-Ortiz; Resource Person: Ahmed Abdel Latif; Commentators: Soheir Nadde, Maha Mohamed Zaki Bakhiet, Ahmed Ziadat)

Currently there are a number of multilateral and regional processes seeking the increased harmonisation of IP regimes. These processes are occurring at the multilateral level in the World Intellectual Property Organization (WIPO) (e.g. the New Patent Agenda), at the regional level (such as the newly proposed Middle East Free Trade Area) and in bilateral free trade negotiations (i.e. US treaties with Bahrain, Jordan, Morocco - and ongoing negotiations, such as between Oman and the USA or potential future negotiations such as between the USA and Egypt). Models for harmonisation being used in negotiations are mainly based on the legal regimes of the Triad (USA, EU and Japan), thus going beyond the minimum standards of protection of the TRIPS Agreement ("TRIPS-Plus"). Harmonisation processes include substantive and procedural features of IP policy that could reduce or affect important TRIPS flexibilities necessary to address public interest concerns such as health, biodiversity, technology transfer and access to knowledge. In this respect, additional attention has to be given to Trade and Investment Framework Agreements (TIFAs) and Bilateral Investment Treaties (BITs) and their impact on the evolving international IP architecture.
This first segment of the dialogue placed particular emphasis on the global TRIPS-Plus trends and current state of the IP debate and its relevance to the countries of the region.

11.00–11.15 Break

11.15-13.00 Continuation of first session

14.00–16.15 Second Session: Health, 2005 and beyond

(Moderator: Pedro Roffe; Resource Persons: Othoman Mellouk, Carlos Correa; Commentators: Mohamed Bahaa El-Dein Fayez, Batool Jaffer Suleiman, Hanan Sboul)

As of 1 January 2005, all developing countries, with the exception of least developed countries, have to fully apply TRIPS patent standards for pharmaceutical products. This new scenario will restrict the capacity of producers to provide generic versions of patented medicines at low cost. At the same time the in-built flexibilities of the TRIPS Agreement, as recognised by the Doha Declaration on the TRIPS Agreement and Public Health, are not fully used by developing countries or are being curtailed by new commitments in bilateral or regional free trade agreements.
Together with IP-relevant policies, medium and long-term strategies for the creation and improvement of domestic manufacturing capacities should also be explored. Current policies and the legal environment in general, for pharmaceutical production as well as the feasibility of expanding existing manufacturing units or setting up new ones, should be analysed. Possible policy instruments such as subsidies (active – direct transfer of funds, or passive – tax breaks), investment regulations and government procurement policies could assist in the creation or improvement of domestic manufacturing capacity.

This session identified the impact of new trends on national IP regimes and how existing flexibilities are being implemented in the Arab region. Emphasis was placed on access to essential medication as well as national and regional production and supply systems for pharmaceutical and health services.

16.15-16.30 Break

16.30-18.00 Continuation of Second Session

27 June

9.00 – 10.30 Working Group sessions to identify challenges, policy and research agenda issues
(Trends: Ragui El-Etreby; Health: Kadhija Moalla)

10.30-10.45 Break


10.45-13.00 Third Session: Access to Knowledge and Educational Material
(Moderator: Carlos Correa; Resource Person: Uma Suthersanen; Commentators: Mohamed Nour Farahat, Abdullah Qayed, Mohamed Hossam Loutfy)

Copyright law, including protection of databases, has changed the way we disseminate, have access to and make use of information and knowledge products, such as academic work. The digital revolution has indeed contributed to these developments. But, as with all IP provisions, copyright seeks to strike a balance between the rights of the owners and the rights of users by allowing, within certain limits, unauthorized reproduction or communication of protected works. This is referred to as ‘private use’ or ‘fair use’ in countries with a common law tradition, and codified in case-specific exceptions in countries following a continental law approach. Furthermore, the WIPO Copyright Treaty (WCT) allows parties to the WCT to use fair-use provisions for public policy purposes such as education or for the use of public libraries. On the other hand, the same treaty also authorizes states to considerably limit the use of traditional copyright exceptions.
Such authorization has an impact on national copyright laws. For instance, the US Digital Millennium Copyright Act (DMCA) reduces the possibility of fair use or other exemptions. This tendency is being promoted through bilateral agreements. Developing countries should be aware of this tendency and make sure that national provisions take advantage of the flexibilities provided in the WCT by establishing strong exceptions for the education and scientific usage of copyright material. In light of Article 13 of TRIPS, however, it is questionable whether exceptions can function as safeguards for full access to educational material and scientific information in developing countries. A positive rights approach in terms of ‘public access rights’ to information could provide a useful alternative. In this context, more valuable avenues for the promotion of access to information, particularly in the digital era, could be a consistent application of the idea/expression dichotomy (Article 9.2 of TRIPS), as well as recourse to principles of competition law (Articles 8, 40 of TRIPS) for the formulation of a public access policy. Finally, open source collaborative models, such as the Open Software and Creative Commons models should be analysed for enhancing the creation of and access to locally relevant knowledge in developing countries and should be exploited accordingly.

This session discussed the impact of international copyright developments on access to the flow of ideas and knowledge products in the Arab region particularly in the context of the challenges and opportunities posed by the digital revolution to the countries of the region. Emphasis was placed on the copyright provisions in bilateral FTAs. Furthermore, alternative strategies to copyright exceptions was examined, such as having recourse to narrow copyrightability criteria, the use of competition law and principles to address abuses, and the role of open source models. The dialogue also focused on recent deliberations related to the global information society, particularly with respect to the issue of universal access to public domain information.

13.00–14.00 Break

14.00 -15.30 Continuation of Third Session

16.15-16.30 Break

16.30–18.45 Fourth Session: The protection of expressions of folklore, cultural heritage and traditional knowledge in the Arab region

(Moderator: Ahmed Abdel Latif; Resource Persons: Amna Al Hamdan, Azza Maidan; Commentators: Sakli Mourad, Ahmed Ali Morsi, Ismail El Fihail)

One issue that has acquired increasing importance in different forums during the last few years is the protection of traditional knowledge (TK) and expressions of folklore of indigenous and local communities. Both TK and expressions of folklore form part of the cultural heritage and identity of a particular cultural group, country or region. They consist of intellectual and creative efforts by indigenous and local communities that allow the incremental development of diverse products and expressions. Products tend to include new crops, colorants, medicines, and cosmetics. Expressions generated could cover paintings, handicrafts, performances, and audio/video recordings that have been extensively used well beyond national and regional borders, and disseminated among different cultures.
The relationship among IP, TK and expressions of folklore raises some specific commercial, cultural, and environmental policy concerns. These concerns include missappropriation and unfair use of TK and folklore, current scope of patentability, access and benefit sharing of commercial and scientific benefits, the promotion of traditional uses, and preservation and dissemination of knowledge in general, etc. At the same time, IP could have an important potential for the pro-active protection and promotion of TK and folklore. This could provide particular opportunities to the Arab region, which has a very rich cultural heritage.

TK, related to genetic resources, has been regulated by the Convention on Biological Diversity, the Bonn guidelines and the Ake Kon guidelines, as well as in the WTO. In addition to this the creation of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) established an independent process regarding the protection of TK. The IGC has recently issued a set of draft policy objectives and core principles on the protection of traditional knowledge which, while still under discussion, could assist countries and indigenous and local communities in the development of some minimum international standards for the protection of TK.

While expressions of folklore may overlap with the field of TK there are many aspects that make folklore unique. Over the past decades, WIPO and UNESCO have undertaken work on the protection of expressions of folklore. In 1982 these institutions developed a sui generis model for an IP-type protection of traditional cultural expressions, referred to as the UNESCO-WIPO Model Provisions (1982). These provisions only address some aspects of the illicit exploitation of those expressions. Furthermore, the IGC has also proposed a set of draft policy objectives and core principles for the protection of traditional cultural expressions of folklore. Both this and the TK draft set of policy objectives and core principles could provide the basis for a future treaty or recommendations by WIPO.

The fourth segment of the dialogue analyzed the various options of protecting TK and expressions of folklore within the framework of the existing and emerging IP international architecture. A discussion of potential implications of policy objectives and core principles for traditional knowledge and expressions of folklore is necessary to assess their potential implications. This includes the identification of possible alternatives to the existing IP system, such as compensatory liability regimes or certain national sui generis laws for the protection of folklore and TK.

28 June

9.00–10.00 Working Group sessions to identify challenges, policy and research agenda issues

10.00-10.15 Break

10.15-13.00 Continuation of Working Groups (conclusions and recommendations)

14.00-16.00 Final Session: Conclusions and recommendations of the Dialogue
© ICTSD 2004 - Last Update: 05-Oct-2009