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TRIPS and the context of Berne Article 6(b)


Why do moral rights matter?  They are serious in areas of films and publicity.  When TRIPS was being negotiated the American Film Industry argued that moral rights ought not to be protected and they succeeded so TRIPS does not protect moral rights.  If one was to protect moral rights, it would mean that whenever one wanted to use a film clip, one would have to call up the actor or actress every time they wanted to use the clip which would be a very expensive and tedious exercise – whenever one is acting it is assumed that it is hired work, it is an artificial agreement that all actors and actresses are treated as if their work is on hire.

American quarrel with moral rights- suppose one removes from Titanic the scene where Leonardo Di Caprio is drawing and put it on t.v. two issues will arise, Di Caprio may have a problem with that.

Does IP stimulate or stifle innovation, technology transfer or development

There have been arguments on whether IP stimulates or stifles innovation.  In the 1980s this debate was taken up by US EC and Japanese trans-nationals with the support of their governments to argue that non-protection or weak protection of IP stifled innovation and hindered Trade, ToT and development.  They gave some data to suggest that billions of dollars were being lost especially in the pharmaceutical industries (Pharmaceutical companies Merck Inc., Glaxo, software industries (Microsoft) Entertainment Industries (Sony).  They argued that in the area of IP they tend to be monopolistic and do not allow competition.  It has also been argue that IP enhances transaction cost, i.e. before one acquires an IP product one is supposed to negotiate or even pay a royalty and this is argued that it enhances transaction costs.  Newspaper houses stifle stories by using the stories without sufficient acknowledgement. In IP the meaning of the word correspondent will mean that the publisher will own the copyright.

Too much of research conducted on IP and Patent Law are
There are problems on research that has been conducted with IP and Patent Law
The role of IP in innovation has fundamental weaknesses
1.            Most of the research focuses on patents;  very little has been done on © and Trademark
2.            Most of research is in developed countries
3.            Most of research is based on interviews with corporate executives rather than consumers, academics and so on meaning the research is not entirely empirical but is largely intuitive and speculative.
Refer to Casper Primo Brage , Keith Mascus, studies by WIPO, UNDP and Cultural Industries, Edwin Mansfield
IP and TRIPS

UNCTAD – poor man’s cushion – for helping developing countries in their trade interests. 

344-345
Historically WIPO and UNESCO were the major regimes regulating trade regimes and Intellectual Property.  UNCESCO was administering Universal Copyright Convention of 1952 (UCC)which had partly been passed to accommodated America.  America for a long time was not a member of Berne but was using Berne.

Over the years WIPO had been criticised and it lacked resources to deal with IP it had limited personnel and more recently it has sent limited materials to address IP.  In order to continue being relevant WIPO has now moved to Dispute Resolution since most of its mandate has been taken over by WTO/GATT. 

WIPO lacked a clear mechanism and sanctions as there was nowhere to address disputes if one was aggrieved.  The major magic of TRIPS is that it has a clear dispute resolution mechanism that if you infringe another country’s IP there can be sanctions.  WIPO did not contextualise IP and developed countries led an onslaught to WTO criticising WIPO.  BY 1996 WIPO Copyright Treaty etc were passed.

 
 
 

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