Wither Caribbean Intellectual Property in 2023?

Photo via GettyImages
Photo via GettyImages

It seems endemic to Caribbean society that policy planning and execution in almost all spheres is based either on current needs arising from past partially resolved issues, or in pursuit of world trends such as technological developments which require regulatory coping strategies, especially in the areas of innovation and technology. It is not as common for governments in the region to create policies with the intention of stimulating technological innovation.

Most of the time policy efforts are aimed at bolstering the efforts of small and medium sized enterprises (SME’s) so that they might contribute to the GDP of the country through the creation of jobs and  perhaps with incentives where there are some elements of technological innovation present. These two approaches are quite different and not to be conflated one with the other. There are few SME’s that are technological startups or innovation-based enterprises, and this makes the actual contribution of these kinds of businesses negligible to the national economies as is indicated by the available economic data. This is unhelpful to the growth of technology and innovation which the Caribbean as a whole desperately needs. The deliberate promotion and funding of technological development as government policy is a common approach of developed countries and those moving from lower to middle income economic status.

The statement released at the conclusion of the forty fourth regular meeting of the CARICOM Heads of Government held from the Feb. 15 -17,  2023 does not give any hope of a change in approach at the regional level. There is no mention of investment in the development of innovation and technology, except in some small part as relates to agriculture, and even there, the scope is limited and undefined.

The concept of intellectual property is inextricably linked to creativity and innovation, whether a new idea is patented, new writing or music copyrighted, an innovation in industry is protected by industrial design, or a new plant variety extracted by scientific experimentation is restricted from unauthorized use or replication. It would seem then, that at the regional level there is little attention to intellectual property coming from a corresponding lack of enthusiasm about developing innovation and technology.

Article 66 of the Revised Treaty of Chaguaramas, the instrument which establishes the Caribbean Community and the CARICOM Single Market and Economy, recognizes the importance of Intellectual Property, and sets out certain requirements for its implementation with the exception of copyright, though to date, the rapidly aging Patent Cooperation Treaty proposal remains the only tangible attempt at regional collaboration on any aspect of IPRs.

It can be argued that the CARICOM community is closely linked to western culture through trade, movement of peoples and the significant size of the diaspora residing in the United States, the United Kingdom, and some parts of Europe. As a result, most commonly used technologies are generally available to regional users. Regional governments at the same time, seem to continue to focus on subsistence rather than the development of solutions which can both propel economic growth and provide creative technological solutions to some of the pressing problems of the region.

The resolution of the regional food security problem is an example of the need to collaborate on several approaches in order to change the situation for the better. There are issues with high levels of food importation, corresponding high costs and the resulting amount and quality of foods available in some CARICOM countries. From the reports of experts in this field, a combination of increased food production in the region should include expanded food varieties, as well as the development of weather and pest resilient crops. It will include water and soil management techniques and more efficient regional food transport systems. Some of the elements of such an endeavor like transportation, water and soil management can be resourced from countries with the experience. However, the development of plant varieties that are hardy enough to withstand the challenges are an opportunity for local agricultural scientists to make that significant contribution to the field of knowledge and to change the shape of things to come.

It ought to be trite knowledge that intellectual property is critical to such developments, as are political will and funding, but it is not. While a few CARICOM countries have enacted comprehensive suites of legislation on intellectual property, the majority of them have only bits and pieces of legislation some of which are old and outdated, as in the case of Guyana’s Copyright legislation, which dates back to 1956. Notably, Guyana gained independence from Britain in 1966. Trinidad & Tobago, St. Lucia, Antigua and Barbuda, Belize and Barbados are in the forefront in the enactment of modern Intellectual Property legislation which should benefit their citizens and potentially contribute to economic growth where properly utilized.

It is the recognition of the underutilization of IP resources in the Caribbean which has caused the Intellectual Property Office of European Union, WIPO, and other organizations to initiate programmes to assist governments and SME’s in the region with sensitization programmes, technical assistance, and even policy guidance. Intellectual Property is almost inextricably linked to economic benefit at both micro and macro levels. Whether it is an individual or a company IP is presented as a compelling means by which creativity may be managed for monetary gains making it possible to sustain current efforts, and to further development and growth across almost all sectors of economic endeavour.

The formalization of economic relations in Intellectual property through treaties and conventions may also allow for greater interactions and controls of what obtains at local levels, with the promise of reciprocity. For example, signatories to the Berne Convention for the Protection of Literary and Artistic works agree to copyright protection for users at the same level in all countries that adopt it. The caveat here is that mere adoption does not bring the convention into force since legislation at the local levels must be created or adapted to incorporate the elements of the convention. IP treaties and conventions are generally not self-executing, meaning that they must be enacted into law before they become effective.

It is this possibility of controls and more stringent regulations that has undergirded the reluctance in some administrations to adopt IP legislation, even though they may be signatories to major conventions such as the TRIPS Agreement (Trade related Aspects of Intellectual Property Rights) administered by the WTO.

The argument that TRIPS allows for local implementation at levels which are workable within economies seems to have failed to convince some governments. Certainly, the governments of Guyana in the past two decades have resisted any efforts to make intellectual -property rights part of the legislative framework despite public protestations. The discovery and exploitation of some of the world’s largest oil reserves in Guyana over the past three years has not stimulated new discussions on the issues of intellectual property even though rapid development and the growth of other industries require that it be addressed more urgently than ever before.

The rest of the region continues to take part in programmes offered by WIPO and EUIPO, hopefully with measurable results. It is left to be seen whether these approaches can have change making impact on the ways in which IP is perceived, understood, and implemented at national and regional levels without the overarching policy thrust at the level of CARICOM. For as long as Article 66 of the Revised Treaty of Chaguaramas is not a priority at the level of Caricom Heads of Government discourse, there is unlikely to be any comprehensive approach to IPRs within CARICOM which is the only way that intellectual property rights will become a catalyst in innovation and technology in the region.

Wither Caribbean IP in 2023? Even the most profound of guestimates leaves us bereft of answers.