Creating Appropriate Legal Framework in the Utilization of Intellectual Property Products

• Author: Hayyan ul Haq
• Position: Centre for Intellectual Property Law, Molengraaff Institute for Private Law, Law Faculty - Utrecht University
• Pages: 69-79

JICLT

Journal of International Commer cial Law and Technology

Vol.9, No.2 (2014)

69

Creating Appropriate Legal Framework in the

Utilization of Intellectual Property Products

Hayyan ul Haq

Centre for Intellectual Property Law

Molengraaff Institute for Private Law

Law Faculty - Utrecht University

Abstract. Evaluating the consequences of the existing creator and inventor doctrine

on access to public goods, this paper investigates the ways of finding the most adequate

legal protection that may bridge public interest and pri vate interest in this respect. For that

reason, this work will not only re-examine the status of exclusive intellectual property

rights, but also its implication in Indonesia. In addition, it proposes the embodiment of

humanistic rationalisation and the U-Principle in order to protect public interest. This

protection is meant to create an ideal legal framework for expanding broader public access

to any essential product in the field of food, agriculture, health and education in order to

maintain the sustainability of collective life.

1. Introduction

A deficiency in th e creator and inventor doctrine is perceived as tending to provide unrestricted

opportunities for capitalist potential and resources in exploiting and privatising intellectual property

products, i.e. information and technology, (h ereinafter, IT) resulting in a scarcity of IT, particularly

essential IT products in the public domain. By promoting the importance of the incentive theory, the

protection of exclusive right is empowered and entrenched and is even manipulated by a few gigantic

corporations to accumulate their profit interest. It was these corporations which to a much greater extent

enjoyed and employed their exclusive rights to strengthen the accumulation of profits towards intellectual

capitalism. The dramatic increase in the accumulation and concentration of in tellectual property products

controlled by a few gigantic corporations h as hampered many developing countries including Indonesian

stakeholders’ (universities, research and development centres, the government, public institutions,

particularly in health an d education, national industries, particularly small and medium-sized industries,

society, NGOs) capacity to access and develop intellectual property products, i.e. essential IT, particularly

through technology transfer in order to maintain the sustainability of collective life.

The spirit of unrestricted exploitation has been embodied in various international (i.e. TRIPs

Agreement, UPOV, etc) and national regulations (i.e. Indonesian Copyright and Patent Acts). In the midst

of the pros and cons of the implementation of the TRIPs Agr eement, the developed world tries to force

developing countries, including Indonesia, to accept and to introduce free trade agreements (US-FTA)

that may restrict those developing countries in protecting their national or public interest in essential

fields such as food, health and education. It is well kn own tha t the US-FTA introduces several stricter

clauses than TRIPs clauses that may hamper developing countries in accessing IT through technology

transfer, compulsory licensing, fair use, parallel imports, governmental use and so forth.

In this divide, not surprisingly, the stronger parties, i.e. capitalists, may exploit the exclusive

maximum ri ght (unrestricted exploitation) by introducing various strict intellectual property protection

regimes (

Ove Granstrand, 1999:10, 278-280

).

At the global level, many scholars warn us about

difficulties and conflicts of interest in this respect. For example, Heller, Eisenberg, and Boyle are

concerned about the tragedy of the anti-commons (Heller, 111 HARV. L. REV. 3 [1998]) that threaten the

sustainability of collective life. Granstrand analyses that the patent-based oligopolies and cartels of the

twentieth century are li kely to become the intellectual property-integrated ‘infogopolies’ and

‘biogopolies’of the twenty-first century

.

Cl early, the unrestricted exploitation of information and

technology (IT) may fulfil only t he interests of a few gigantic corporations (capitalism). (

Granstrand,

1999:10, 278-280

). The scarcity

, difficulties and conflicts of inter est in the utilization of IT have been

extensively discussed at WIPO meetings related to the Geneva Declaration, or the Development Agenda.