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`Protection of intellectual property rights could attract investors`
2007-10-12 09:32:16
By Guardian Reporter
On Wednesday, October 10, 2007 Chief Justice Augustino Ramadhani opened a conference on intellectual property rights and anti-counterfeits in Dar es Salaam.
The Chief Justice emphasized the need to protect intellectual property rights as a way of improving the welfare of innovators and attracting investments. Here is the speech:
Intellectual property rights are creations of human mind and the legal rights that govern the use of such creations in the market.
These creations of human mind are important because there is hardly a positive mark in the history of human development which does not originate with intellectual property.
The history of inventions and innovations is indeed the history of intellectual property rights and human development.
The presence here of very prominent speakers and the participation of such distinguished delegates, to use legal jargon, is a proof beyond reasonable doubt of the appreciation of the import of the theme of this Conference.
It is expected, therefore, that the outcome of this Conference should be of great interest and ought to draw the attention of the business community, academia, consumers, legal practitioners and governments in the region.
In recent years, intellectual property has received a lot of attention because ideas and innovations have become the most important resource, replacing land, energy and raw materials.
It is said that the value of publicly traded companies in the United States that originate from intangible assets has risen from about 40 per cent in the 1980s to about 75 percent at present.
This means that the economic product of the United States has become predominantly conceptual.
Therefore, protection of patents, rights to industrial designs, trademarks and service marks and artistic, musical and literary works is a very serious issue which every player in the market must be aware of and must respect.
The granting of the legal protection of Intellectual Property Rights is advocated for on the basis that it is a framework that guarantees a higher level of innovation in society than would prevail if the framework did not exist.
The guarantees of property rights are incentives which encourage innovators to take the cost risks to experiment on ideas which may or may not work eventually.
The protection of Intellectual Property Rights makes transfer of technology possible through three main channels:
lInternational trade in goods, especially capital goods,
lForeign direct investment, and
lLicensing of technologies and trademarks to unaffiliated firms, subsidiaries and joint ventures.
The transfer of technology requires assurance to the owners of that technology that their Intellectual Property Rights in the receiving country will be observed.
It is a fact that the existence of Intellectual Property Rights and the ability to protect and enforce them have important effects on decisions of multinational firms on where to invest or whether to transfer advanced technologies through Foreign Direct Investment.
Since most innovations are incremental and adaptive to local conditions, such local innovations would also require strong protection laws in order to guarantee returns to the investments involved in research and experimentation of the innovations.
In Tanzania, the Patent (Registration) Act, (Cap 217 R.E. 2002) protects the inventions and innovations registered with the Business Registration and Licensing Authority.
If the inventor or innovator wishes to protect the patent in other countries he has, similarly, to register them in those respective countries.
To simplify procedures, there are regional agreements under which once registration at the centre of the regional organization or in one member country is made, the registration will be effective and recognized in the rest of members of the regional grouping.
Tanzania is a member of the Harare Protocol on Patents and Industrial Design which applies to all members of Africa Regional Industrial Property Organisation.
May be I pose here and soliloquy: Is the Act comprehensive enough? I make only three observations:
One the definition of `invention` as provided in Section 7(1) is it exhaustive? It says that invention means a solution to a specific problem in a field of technology and may relate to product or process.
Let me compare that with the American provision which states that `an invention is an art, machine, manufacture, design, or composition of matter, or any new and useful improvement thereof, or any variety of plant, which is or may be patentable under the patent laws` 60 Am.Jur.2nd Patent 894, at 601 n.98(1987). American Jurisprudence 2nd. 83 vols)
The punishment prescribed by section 70 for an intentional infringement of a patent is a fine not exceeding shs.500, 000/= (about us $350) or imprisonment for five years or both.
In event of recidivism then the maximum punishments are doubled, that is, $700 or incarceration for ten years of both.
The tendency for the High Court would be to order fines rather than jail sentences.
Now are fines of $350 or even $700 sufficiently deterrent?
Again, section 76 affords a person with a Certificate of Registration in the United Kingdom issued under the Patent and Designs Acts, 1907 to 1932, and their successors, similar protection in Tanzania.
Can`t that protection be extended to other business partners?
In March this year, the Minister for Industry, trade and Marketing |launched the opening of the Patents Centre at the Commission for Science and Technology in Dar es Salaam for the specific purpose of advising interested parties, particularly to enable technology researchers find out the extent of technological know-how in the field of interest in order for them to shorten the research cycle by avoiding `re-inventing the wheel` but instead, going straight to the task of searching whether one can “improve the performance of the wheel`.
The copy rights and Neighbouring rights are another area of protection under the Copyright and Neighbouring Rights Act, Cap 218 (R.E.2002) and there is the Copyright Society of Tanzania, an organization under the Ministry of Industry, Trade and Marketing.
There is a system which is intended to enable music composers and other artists to get royalties for the use of their compositions by various entertainers and exhibitors worldwide.
Deliberate efforts are being directed to the documentation of traditional knowledge, expression of folklore and genetic resources for the purpose of registering them for the economic benefit of their creators.
I hope that management representing Tanzania institutions and all other stakeholders present here will use this Conference to exchange ideas to enable the public to tap Intellectual Property resources to their advantage.
The world community through the WTO has set up a mechanism of how Intellectual Property Rights can be protected without impeding trade, inventions or innovations.
There are debates on how to make the framework perform better but this cannot and should not be used as an excuse for anarchy in the Intellectual Property Rights field.
One such area which breeds anarchy in trade is counterfeiting.
Counterfeits are now becoming a world-wide problem. People who deal in counterfeits are involved in high risk business.
They are criminals, and therefore, highly organized. IT is estimated that more than 10 per cent of the value of total world trade business is attributed to trade in counterfeits.
There are world spots which specialize in the manufacture of counterfeits aimed for countries where anti-counterfeits regulations are either weak or are not enforced effectively.
Developing countries are becoming increasingly victims of counterfeits which have very significant negative effects.
* Counterfeits displace legitimate producers of goods and, therefore, lead to unemployment;
* Rampant counterfeits erode internal markets and business confidence in a given economy, and therefore, negate inward investment in the economy because it becomes risky for foreign investors to do so in an economy in which goods produced will compete with sub-standard and fake versions of the same products.
lCounterfeits work against government revenue collection efforts.
lCounterfeits in foods and medicines have direct negative effects on people’s lives and health.
lCounterfeit machines, gadgets and instruments may result in substantial destruction of property.
lIn an economy where counterfeits are rampant, transaction costs become extremely high because goods are not trusted at face value;
`Counterfeits transgress all the social props which support a market based economy.
Such props include trust, respect for property rights, economic level playing field and respect for contractual obligations.
In Tanzania, the issue of rampant counterfeits is a recent phenomenon. People have started to question whether Tanzania has been turned into a dumping ground for sub standard goods and want to know what is being done to arrest the situation.
I am delighted to learn from the remarks of the chairman that the Confederation of Tanzania Industries has commissioned a study to assess the magnitude of the phenomenon in Tanzania.
Let me commend that decision which has been made at the niche of time.
There are two main reasons which make developing countries the obvious victims of counterfeits.
Firstly, there are many countries which mistook `market based economy to mean `free economy`.
As a result, their leaders thought it would not be prudent to act on counterfeits because they would appear to interfere with market economy.
The appropriate legal framework and enforcement to support the market economy was absent at the initial stages. In such areas, trade liberalization and even privatization appeared to bring chaos.
Counterfeits exports to Tanzania, for example, are cascades of business of what used to be unnoticeable trickles before liberalization.
Secondly, people who trade in counterfeits are more or less organized criminals who make huge profits which they then use to interfere with effective enforcement of anti-counterfeits laws and regulations.
Tanzania has introduced laws and formed organizations for good management of the market economy.
I am sure that at this Conference you will learn from each other what other countries are doing in this regard so that together you can contribute to the fostering of international trade regimes that can help both innovations and inventions by respecting and enforcing Intellectual Property Rights as a key to combat trade in counterfeit goods.
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