By Abiola Innis
Recent weeks have found the intellectual property scene in Guyana astir with activity. According to reports the Guyana government declared that, as a matter of policy, it would be spending millions of dollars to procure bootlegged British textbooks from an handful of local copy artists with large scale printing facilities. This bold declaration was made, it claimed, as a means of getting the most for the dollar and supposedly for the benefit of the nation. The government made this declaration in the face of the existing Copyright Act of 1956 (Cap, 74) which states as follows:
Abiola A.A.Inniss is a leading analyst, researcher and author on Caribbean Intellectual Property and the founder of the Caribbean Law Digest Online. She is a law teacher, alternative dispute resolution practitioner and presenter who has written extensively on Caribbean IP law and other areas of Caribbean law. Among her publications are two books on law, one on public speaking, several articles, issue briefs, academic papers and book reviews. She has lectured and presented papers in the Caribbean and the United States of America on Caribbean Intellectual Property, reviewed conference papers and conducted research. She is currently reading for a PhD at Walden University, USA.
“In accordance with the preceding subsection, but subject to the following provisions of this Act, the copyright in a work is infringed by any person who, not being the owner of the copyright, and without the licence of the owner thereof, does or authorises another person to do, any of the said acts in relation to the work in the United Kingdom or in any other country to which the relevant provision of this Act extends."
This of course includes copying for the purpose of commercial distribution. For interested readers, the entire Act may be found at http://www.wipo.int/wipolex/en/text.jsp?file_id=229365
It is important to note that this Act became part of the laws of Guyana after independence in 1966 by way of adoption, and that there have not been any amendments to it by any governments since then. Even though it may be old law, it is still the law, and this brass faced declaration of disobedience of Guyana's laws by its own government as a matter of policy, certainly left many informed onlookers aghast at this new record of economic, diplomatic and legal turpitude that extended this time, beyond Guyana's borders into the waters of international intellectual property law and policy. The reaction of the international publishers was swift, formal diplomacy was engaged, followed by a court order and, by government's admission, more talks.
The most interesting aspect of these hasty activities is certainly the reliance upon conventions and treaties in the hope of finding a remedy in the current situation. The Berne Convention to which Guyana is a signatory and which is an agreement that gives countries reciprocal treatment in intellectual property protection, was cited as a refuge for those seeking relief, as was the Revised Treaty of Chaguaramas. Legal scholarship will however point out that the Berne Convention is not self-executing, meaning that the signatory countries are expected to make the necessary amendments to their national laws in order accommodate reciprocity. The Revised Treaty of Chaguaramas, under Article 66 Protection of Intellectual property rights, sets out a series of aspirations that shall be pursued by the COTED (Council for Trade and Economic Development),none of which deigns to legislate IP rights for any of the members of CARICOM and certainly does not give protection of any kind to anyone. Countries retain their sovereign right to legislate for themselves and that remains the rule.
It has long been the contention of this writer that this 1956 Act is woefully inadequate for the local and international circumstances in which the country and its citizens now operate, and that there is the need to create legislation that balances the interests of citizens, producers, artists, resellers and others who may hold title in intellectual property rights.
This undertaking cannot constitute a single piece of legislation, but must be a series of laws that deal with modern issues such as indigenous, rights, modern patents, internet laws, private international law, consumer laws and international business law.
Some countries within CARICOM have endeavoured to do just this, and have managed to create forward looking legislation in this area. Jamaica, Trinidad and St Lucia stand out as examples where this has been done. In the present situation, diplomatic filibustering by the British has been very effective in making the Guyana government scurry for cover under talks and will most likely resolve this issue.
The new economic world order is one in which IP rights are of premium importance and on which the international community will no longer sit back and ignore or accept excuses from so-called developing countries. The current world trends demonstrate that where the Guyana government refuses to adopt policies, laws and actions that would bring it in line with internationally accepted practices, it will be subject to diplomatic sanctions .
The outcome of the court case, if there be one, will be awaited with interest, but this matter will certainly be resolved by economic diplomacy. In the meantime, as I have expounded and advocated for years, Guyana must balance the interests of its citizenry with rights and responsibilities in intellectual property law, our place in the world is dependent upon it.