Creating Appropriate Legal Framework in the Utilization of Intellectual Property Products

AuthorHayyan ul Haq
PositionCentre for Intellectual Property Law, Molengraaff Institute for Private Law, Law Faculty - Utrecht University
Journal of International Commer cial Law and Technology
Vol.9, No.2 (2014)
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). (
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.

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