Did you know that if you have children you are a potential international criminal? Did you know that someone has a claim of ownership over children’s exercises like ‘leap frog’? Did you know that a company owns patent ownership of pigs? No matter how bizarre you find these matters, you might be experiencing these types of issues in the near future! Critics claim that the U.S. Patent Office seems to have lost their collective minds thus accepting such strange applications. However, you may ask, what U.S. is going to do with such strange claims? In reality, not only U.S. but also most of the developed countries are involved in a secret fight using a new mechanism which might lawfully establish and secure their commercial strength as well as political influence in the near future!
The mechanism is better addressed as the Intellectual Property Rights (IPR) Protection mechanism. Patents, Copyrights, Trademarks, Industrial Designs, Geographical Indications and Trade Secrets are the instruments of this mechanism which include your inventions, your works in the field of art and literature, your identity in the commercial world, your culture, heritage and traditional practices. To concise, whatever is unique, beautiful and bears some value comes under the IPR mechanism.
I am here not to discuss what IPR is! Rather I will try to click my readers’ brain with its social, economic and political strength as well as how the first world is planning to establish a realm of corporate slavery!
As human being is ingenious in nature, the chain of introducing new ideas and inventing new things or presenting old inventions in new fashion will continue till the last breath of the world. At the same time, globalization is making the world smaller providing more opportunities to mix up cultures as well as adopting another’s ideas. Ordinary people will find no wrong here but here is the inception of intellectual war. Such intellectual controversy can be found in years back in the “Calculus Controversy” between the famous scientists Isaac Newton v. Gottfried Wilheld Leibniz. Both claimed as to be the father of the study of Calculus. However, historians accept both as co-inventor, having come to the idea independently of each other! In addition, you must remember our own scientist Jagadish Chandra Bose whom we claim as the real inventor of Marconi’s Wireless Detector!
The IPR dictates for the person who has got registration for his invention or work. Generally, Patents, Trademarks and Industrial Designs are territorial and must be filed in each country where protection is sought (Though some treaties like the Patent Cooperation Treaty (PCT), Madrid Protocol offers protection in multiple countries through one application). On the other hand, Copyright, to some extent, enjoys universal application as most countries do not require copyright registration in order to enjoy copyright protection. However, in addition to a proof of ownership, registration can offer several benefits.
Intellectual Property Rights- as Corporate Political Instrument
The developed countries are more concerned about the IPR implementation and registration of their inventions or work with the vision of establishing a proprietary market advantage and protecting core technologies and business methods. In contrast, the developing or less developed countries hold a view that strict IP laws bar them to use the developed countries’ ideas and technologies for their own benefit as prior authorization is needed, and the authorization process involves pecuniary consideration that sometimes costs a lot and eventually shuts their facilities down. Nevertheless, the underdeveloped countries are being allured in many by the developed countries to implement IP rights in their respective countries by offering incentives or rewards. (The World Trade Organization administered (WTO) TRIPS treaty offers some incentives to underdeveloped countries.
If you think that it is better not to implement IP laws in Bangladesh and not to get involved in international mechanisms as well as keep copying the new ideas, technologies, and works from other countries; I must say: you are living in the world of fools! Firstly, we have no way open to escape our liability to the international community as the international rules are designed and devised by influential quarters. Secondly, though it sounds strange, the truth is that developed countries are also stealing ideas, works, and heritages from less developed countries more frequently than you can imagine. I better set some examples: We all know about “BASMATI RICE” a type of native rice in our country, also harvested in some parts of India. A few years ago, a U.S. company filed for a patent on Basmati Rice in the U.S. office and got registration. Then the Company tried to stop harvesting and farming Basmati rice in India and Southeast Asia by claiming its Royalty! However, the Indian government tackled the issue strongly and rejected U.S. claims saying that it is registered as their regional food. Do you know what Bangladesh did? Absolutely nothing! Because on that moment, surprisingly, we had no legal forum to protect our culture and geographical heritage! Another example can be drawn by referring to Jamdani Saree &Nakshikantha. Our dominant neighbor India has already got their registration on these two items as India’s Geographical Indicated product from Andhra Pradesh. Still, there are many more issues that India has attempted to take from our culture by registering and declaring as its geographical heritage like Fazli Mango, Bamboo streamed rice, etc.
In addition, you might have heard of the famous song “Janam Tere Payer main…” from the Indian movie “Murder”. The entire song (lyric & music) was copied from the popular song “Nissho Korecho Amay…” by a Bangladeshi popular band Miles. There are many more examples that can be drawn here. Unknown to us, our inventions, works, cultures& heritages are being stolen frequently only because of our lack of awareness and feeble IP management mechanism. The first world is already well equipped with their resources for protecting their own inventions and identity, both in national and international forum.
TRIPS agreement, being the most ambitious and influential instrument for IPR mechanism, obliges developed countries to provide technical and financial cooperation in favour of developing and less developed countries to facilitate the implementation of their IPR mechanism as per the covenants of TRIPS, which is a wining contribution for the developed countries as strict implementation of IP laws will ultimately benefit the developed countries to increase its industrial capacity and market demand safely in the developing and less developed countries. With the benefit of higher level of IPR protection, the already advanced and well-equipped, developed countries will easily control the market of other countries. Even if, technologies and knowledge were transferred for free, it will be of no use to the developing/less developed countries, firstly because, IPR mechanism will control the unauthorized reproduction or reuse of those transferred technologies; and secondly, authorization will cost royalties by which major portion of income will go into the pocket of the developed countries.
Controlling the commercial world through IPR
The IPR mechanism has already taken its stance as an influential commercial instrument. IP jurisprudence protects every commercially important registered works from being copied or used without permission. The mechanism is monitored and controlled by several international treaties & protocols, amongst those Paris Convention, 1883 for patents, Berne Convention 1886 for Copyrights, Madrid Protocol, 1991 for marks, Hague Agreement, 1925 for Designs and WTO administered TRIPS, 1994 for overall IPR mechanism are mention worthy. It is noteworthy that the rules regarding the protection of intellectual property not only influence matters that governs cross border trade, but also have a direct impact on the framework affecting foreign direct invention and innovation. Reality shows that developed countries indirectly compel less developed countries to enter into bilateral and multilateral treaties, the pressure of which causes the developing and less developed countries to enact non-practical and frustrating laws that hinder its Intellectual potentials. Normally, liberal international rules do not apply in between countries in presence of bilateral treaties. For example: TIFFA treaty between Bangladesh and America is, in my opinion, a commercial burden for Bangladesh. In near future, we may have to pay handsome amount of money for using some facilities what we are now using free i.e. software. Imposing trade restrictions and refusing to provide tariffs (as U.S.A. is denying providing us GSP tariff) are some examples of pressure mechanism.
However, getting a registration for any IP product opens many windows to commercial prosperity by establishing proprietary market advantage, attracting investors and providing higher economic return. The IPR mechanism left you no space vacant to sleep over your rights. If you do so, you may have to end up paying to buy your own brain child. Medicines, foods, life-style, technologies are the main points of attraction to the Corporate giants. If we fail to balance in between the constant pressure of the developed world and our rights and interest, our time to weep is imminent.
What Bangladesh should do?
Bangladesh may find some international IP mechanisms burdensome, while being a less developed country, she enjoys some incentives as well. Recently, WTO extended the exemption period from paying patent royalty on drugs till 2032.That means we can copy and develop pharmaceutical products without paying any patent royalty to any country till 2032.We should take the 100% advantage of this prospect. There is no better option than creating mass awareness. Bangladesh needs three-tier strategy: national, regional and international. As bilateral treaties can debar us from getting the benefits of International treaties the policy makers should acquire clear understanding regarding the IPR matters and be more operational to protect the national interest. In addition, general people should be well informed and aware of their rights regarding their works and inventions. We have the longest natural sandy unbroken beach in Cox’s Bazar, the largest Mangrove Forest (Sundarban), the Hilsa Fish, a highly rich culture and abundant of natural heritages etc. to introduce Bangladesh in a different way. IPR makes a way out to promote socio-economic development and ensure higher economic benefit through Branding Bangladesh. Thanks to the Government for implementing the Geographical Indication Act, at last, in 2013 and registering Hilsa Fish, Jamdani Sharee and Fazli Mango as Bangladesh’s GI product. Hope in future we will not have to struggle before the International Society in reclaiming our own belongings like Nakshikatha, Basmati Rice etc. Hope, our government will take effective steps to cancel other country’s registration on our products! Besides, the TRIPS agreement keeps an option of reviewing the impact of the agreement open to the signing countries which can positively be used to save the collective interest of the developing and less developed countries.
What an Individual should do?
If you have an invention (Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed) or a unique work or writing; and if you want to keep it protected in order to use it commercially; you should, without any confusion, take your registration on it first. Even if, you don’t have any such intention, if you want to run further research or development on your work, you should have your protection first because no one knows what luck your simple invention might bring to you (I should mention here the ownership controversy of Face Book; Mark Zuckerberg has already became one of the richest persons of the world). You should take professional help of an IP lawyer most importantly as the application process involves many legal and technical issues which may bring you an abortive conclusion. Keep your secrets secret until you have filed an application for registration. Do not discuss to anyone or write to any journal before securing your interest. Once you have your registration you will have option to deal with i.e. you may transfer or sale or lease your invention. As an individual can avail the option of international protection after getting national registration, some intelligent inventors will use IPR mechanism as a door to enter into international business market for improving financial performances. And, the sooner you become responsive, the better result it will offer for you!
Post Corona virus era
The post Corona virus world will be a changed world in terms of commercial and political polarization. IPR mechanism has both the aspects: we can rule or be ruled! In other words, it has the power to make us corporate slave, if we keep sleeping over our rights. Alternatively, it can be administered as the easiest way of getting benefited by our inventions, works, identity and heritages. As being a less developed country, we have points of arguments as well as scope of negotiation with the modern giant corporate leaders; who will, by hook or crook, make their way out to make money by selling their ideas to us; if possible, selling our own ideas to us! It is the high time to be aware, to be proactive on our own rights. You might not be an entrepreneur, but you have an idea that you would like to see exploited, it might have the potential to gift you a better future, to give us a better world. A huge battle in the courts around the world is currently taking place over these rights that may bring positive changes in the governing laws. Before it is too late, before the flexible laws change and before the corporate giants become harsh on us; we should start working on this issue to protect individual interest as well as collective interest of our country.
The Author is an Advocate of the Supreme Court of Bangladesh and the Head of Chambers of MentorIP Bangladesh.