Establishing the relationship between The Bahamas Government and the World Trade Organisation (WTO) would protect the Intellectual Property Rights of Bahamian inventors and Bahamian manufacturers wanting to participate in global trade, said Minister of Financial Services Ryan Pinder at a Public Forum in the Windsor Room of the British Colonial Hilton.
Also participating in the forum to attract international business to the Bahamian shores as well as protect Bahamians wanting to participate in expanding their business abroad was the Minister of Legal Affairs Damian Gomez
“We have in the Ministry of Financial Services taken the position that, especially in the context of industry that, we have the ability in The Bahamas to leverage new types of industry,” the Minister said, noting that a creative industries council has been formed, which includes the Ministry of Tourism, Ministry of Youth, Sports and Culture, as well as private sector personalities.
“But it can only be done in the context of where the products of the creative industry are protected internationally. Where you say you have Junkanoo that can be marginally protected under a couple of regimes under the legislation we have today, whether it be a product with the origin of The Bahamas, or whether it be a copyrighted product under another regime. But in the context of the age old discussion of how do we make Junkanoo an economically viable product in The Bahamas, you would want to do so in the context of protecting the rights to it on the international landscape.”
The Forum centred on Intellectual Properties and the significance of protecting the creator rights of Bahamian business entrepreneurs, which the new legislation would be one of the requirements for WTO membership. Minister Pinder then introduced the concept of value added trade, which requires applying a value to products that are created within the borders of The Bahamas before they are exported globally.
“As we create and develop these new industries in The Bahamas for Bahamians, we need the protective mechanism of intellectual property rights to be supported. As we further develop that and we look to develop the trade aspect of the Bahamian economy, which also falls under my portfolio, and we look to strategically place The Bahamas in that context, and we as a country have not be a participant in manufacturing from the ground up like many of our regional counterparts have, we have an opportunity to do what is called ‘Value Added Trade’, in which someone may bring in a product they have and they add value to it in The Bahamas in some way or fashion and you utilise your location and logistics, such as in Freeport and be able to now trade that as a product in The Bahamas under a reciprocal trade agreement, such as the EPA,” said Minister Pinder.
“We cannot expect anybody to bring their product to The Bahamas to do that, to participate in a regime, if you cannot protect the product. If you don’t have the regime in place and you cannot protect the product or provide the protection, ‘why would I do that?’
Minister Pinder stated that all WTO member states are automatically members of the TRIPs Agreement, which creates a multilateral and comprehensive set of rights and obligations governing the international trade in intellectual property and provides common minimum protection for intellectual property rights applicable within all WTO member states through treaties.
State Minister for Legal Affairs Damian Gomez also added that the Government intends to introduce seven new bills to the House of Assembly. He said they are The Trademarks Bill (2013), The Patents Bill (2013), The Copyright Amendment Bill (2013), The Protection of New Plant Varieties Bill (2013), The Geographical Indications Bill (2013), The Integrated Circuits Bill (2013), and The False Trade Prescriptions Bill (2013).
“This legislation is being tabled as a direct consequence of our signature of the Economic Partnership Agreement (EPA) with the European Union and is required as part of our international obligations as part of becoming a member of the World Trade Organisation. You may recall that in 2001, the Government of The Bahamas applied to become a member of the World Trade Organisation and it is the intention of this Government to complete that session by the year 2014,” said State Minister Gomez.
“By the middle of February 2013, this legislation will be tabled in the House of Assembly. Now, in order to become a member of the WTO, The Bahamas must comply with the provisions of the WTO Trade Agreement on the Aspects of Intellectual Property Rights or TRIPs, which describes the rules for all major forms of intellectual property, be they copyrights, trademarks, patents, and industrial designs. You might also recall that in October 2008, The Bahamas also signed the Economic Partnership Agreement together with a number of Cariforum states. Chapter Two of that agreement addresses innovation, and intellectual property matters, which requires among other things compliance with several international agreements.”
State Minister Gomez said that Article 139.1 of the EPA requires The Bahamas ensures adequate implementation of the TRIPs Agreement. He said that further in Article 139.4, it requires TRIPs and EPA requirement measures to be enforced by January 1, 2014, which is the reason for the speedy introduction to have debate and enactment in Parliament in order to meet the requirement deadline. He said that membership to the WTO is critical for implementing and enforcing international trade rules between nations and it offers many agreements applicable through the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services, and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Both Pinder and Gomez agree that the three main objectives of these agreements are (1) to help trade flow as freely as possible, (2) to achieve further liberalisation gradually through negotiation, and (3) to set up an impartial means of settling disputes. They also agree that the nature of the WTO’s dispute settlement process is governed by another important agreement critical for IP security and arbitration alternatives, termed as the Understanding on Rules and Procedures Governing the Settlement of Disputes, which is the Dispute Settlement Understanding (DSU).
“In 2009, the Government of The Bahamas engaged the services of Canadian consultants through a review of the Bahamian IP law, in order to determine its compliance with the obligation of TRIPs Agreement and the EPA. The review of the Copyright Act, the Industrial Property Act, and the Trademarks Act was undertaken and indicated the need for The Bahamas to achieve compliance with the new obligations of the TRIPs and the EPA,” said State Minister Gomez.
“It should be obvious to those present, there are a number of practitioners here. We already have legislation in intellectual property and that some practices that occur and undertaken by our citizens are indeed in violation of existing law and that may be a subject which you may want to visit in our discussions.
Minister Gomez said the proposed legislation seeks to comply with the requirements of the WTO TRIPs agreement, the EPA, and other relevant intellectual property treaties administered by the WTO. He said it was prepared by the Ministry of Financial Services in conjunction with an internal trade consultant Mark Sills.
Mr Gomez said the EPA requires The Bahamas adopt certain intellectual property enforcement rights and cooperate transitionally with the mandatory compliance with utilising the treaty provisions of the 1883 International Convention for the Protection of Industrial Property (Paris Convention), revised in 1967; the 1886 Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), revised in 1971; the WIPO 1961 International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organisations (Rome Convention); the Washington Treaty on the 1989 Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty), the WIPO Copyright Treaty, the Patents Cooperation Treaty, the Treaty on the International Recognition on the Deposits of Microorganisms for the Purposes of Patent Procedure.
“The Bahamas is already a part of the Paris Convention for the Protection of Industry Property and the Berne Convention for the protection of Artistic and Literary Works, aim to protect literary works and authors according to copyright law. The Bahamas is not at present a signatory to the other listed treaties that are required by the EPA. We intend to take the steps necessary to ensure compliance with our international obligations,” said State Minister Gomez.
“Our legislative regime will be improved and we will be taking the steps in mid February to ensure the tabling and debate the seven Bills.”
Mark Sills, a Canadian International Trade Lawyer and Consultant in the Ministry of Financial Services explained the history of trade relations and the need for arbitration. He said that the DSU comprises of Dispute Settlement Organs, Body, and Panel, along with an Appellate Body and Enforcement with Precedential Effect of Panel and Appellate Body Rulings. He also said this process would protect Bahamian business owners and their products from being copied and redistributed without their permission, which could save the owners millions of lost revenues globally. He explained the global trade wars in the 1930s that broke out between Europe, Asia, and the United States that created a need for the United Nations and the WTO.
“After World War II, as a part of the drive to create the UN, also the proposal for an international trade organisation, the ITO never came into force because of opposition to it in certain political constituencies in the United States in the late 1940s. What did arise was the General Agreement on Trade and Tariffs (GATT) and a lot of Bahamians don’t realise that because it was a colony of Britain and Britain was part of the GATT, so the colony was under it until 1973, when Independence was achieved. The Government of the day elected not to join the GATT for a number of reasons,” said Mr. Sills.
Mr. Sills explained that the business sector of the Bahama Islands previously enjoyed membership, as a colony of Britain, which was a signatory on the General Agreement of Trade and Tariffs (GATT). He added that as Minister Pinder explained previously that IP legislation fulfils the framework for economic diversification in The Bahamas, while also promoting innovation, both on a domestic basis and certainly on an export basis. He said that WTO membership also substantiates certain trade agreements The Bahamas signed prior to the legislation draft. Mr. Sills also said that to create opportunities for Bahamians, there is a need for a protective mechanism that is supported. He added that the recent adoption of the TRIPS agreement creates a protection that clarifies the American and British view that moral rights are protected by tort and contract law.
“The number of evolutions of trade rules was therefore largely the problems of developed countries until the 1980s and members of the GATT, there were only 23 signatories, with the exception of India, Pakistan, and Cuba. Since that time, most of the developed world has joined the WTO, as it is now called, and they have gotten on board with a lot of the disciplines of intellectual properties. That was because increasingly most countries perceived their economic interests lie in protecting intellectual property rights, rather than violating them,” said Mr. Sills.
“While superficially some people may see some economic advantage in counterfeiting goods, when you look at the overall picture, when you look at the risks involved in allowing commerce in infringing goods from various sorts of international restrictions, it becomes apparent that the cost of permitting such a trade far outweigh the benefits that may include some consumers.”
The panel agreed that the 1995 TRIPS Agreement requires WTO member states to comply with provisions of the Berne Convention, regardless of their membership status to the convention and that they allow one exception that Member states are not required to grant moral rights to authors. Minister Pinder said that TRIPS also fills in the gaps of other intellectual property conventions that are missing such as the length of life for a patent. He also said it establishes the criteria for the effective and appropriate enforcement of intellectual property rights and for the prevention and settlement of disputes between the governments of WTO member states.
Mr. Sills stated that the agreement also establishes transitional arrangements that give more time to developing member states and to member states in transition from a centrally planned economy to a free market economy to comply, and even more time to those that are least developed. Developed member states were required to comply by January 1, 1996; Developing member states and states transitioning to a market economy were required to comply by January 1, 2000; and the least developed states have until January 1, 2016.
Minister Pinder said the TRIPs Agreement extends the basic principles of the GATT to international intellectual property rights and the national treatment principle requires each member state to extend transparency to nationals of other members and treatment no less favourable than that provided by its own nationals in respect to protecting intellectual property. He said that Member states must publish and notify the Council of all relevant laws and regulations, as well as respond to requests from other members to share information on any advantage, favour, privilege, or immunity granted by a member to the nationals of any other country. The TRIPs Agreement requires that member states treat the nationals of other members as it treats its own nationals.
By Gena Gibbs
Bahamas Information Services