Intellectual property as economic tool

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Intellectual property as economic tool

Doris Long is professor emeritus at the John Marshall Law School in Chicago. An expert on international intellectual property law, she has given talks on intellectual property rights, e-commerce, culture, and technology at conferences in 26 countries around the world. Long has also been actively involved in training intellectual property enforcement officials and has served as a consultant on intellectual property rights (IPR) enforcement issues for a number of US and foreign government agencies. While with the US Patent and Trademark Office (PTO), Long participated in various bilateral consultations and was responsible for international IP enforcement issues, including Trade-related Aspects of Intellectual Property Rights (TRIPS) compliance and WTO accessions. Professor Long was recently in Ethiopia under the auspices of the US Embassy in Addis Ababa to meet and discuss with various stakeholders involved with IP rights. Like elsewhere in Africa, she found the Ethiopian music industry as being one of the most vulnerable for copyright infringement. Birhanu Fikade of The Reporter caught up with Professor Long to learn more about the need for enforcing IP laws. She argues that protecting the rights of creative arts and the people in the sector is protecting the industry. According to Long, it is all about understanding the impacts of the industry and its economic values. Excerpts:

The Reporter: Let’s start by talking about the purpose of your visit to Ethiopia.

Professor Doris Long: I used to be a professor at John Marshall Law School. Currently, I am retired. I still teach but not as a full-time faculty member. But before that I was in Washington, D.C. as an IP practitioner. I was doing international IP protection for 14 years. Then in 2000, I was with the PTO doing IP enforcement and I have done a lot of work with agencies and countries for IP protection and enforcement. I was invited by the US Embassy here to come and meet a lot of people and do workshop with the Ethiopian Intellectual Property Rights Office. I had a lot of meetings talking about how to use IP to grow Ethiopian businesses. IP can do a lot towards that, in particular trademarks. One of the things I have discovered is that most people don’t realize that every company has a trademark. In Ethiopia, if you don’t register your trademark, you can’t protect your business. Let’s say you open a store and you become popular, but unless you registered your trademark, somebody else could use your trade name and your reputations.

I was about to raise a similar point. What were your general observations or impressions when you met officials and business persons? What are their typical concerns?

Trademark protections and counterfeit goods are, I think, real problems. There are a couple of things we can mention here why that is so. I also met and talked with some Ethiopian music industry players. Ethiopian music is very popular not only in Ethiopia. You know Teddy Afro has hit the billboard. People in Chicago know about Teddy Afro and his music. But musicians couldn’t make money if their copyrights are not protected. You create music, paintings, drawings, sculptures, poetry or whatever it might be. Unless there is enforcement to protect the rights, your popularity only benefits the pirates. Pirates are rent seekers. They don’t do or create anything. They don’t pay any taxes. They don’t pay the artists but they just get the money. I have had the chance to meet and talk to local police officials about protecting the IP rights of musicians. I like music and I have been to Africa several times. I have been to Botswana. I have been to Guinea. I have been to Senegal. I have been to South Africa and this time I happen to be in Ethiopia. It’s the same stories everywhere when I talk to musicians. They work very hard. They are creative. A local musician I met in Botswana shared an observation I would like people to remember always. He said,  “My album is a small industry. When you pirate my album, all the people who have worked on it wouldn’t get paid.” I think he is right. Think about the singer, the composer. They might rent the studio and pay the technicians, the musicians and the singers. But because of piracy they don’t get their investment back or they might get it slowly. Hence, your musicians who used to make albums every year may be forced to delay that and make their albums every two or three years, or maybe not at all. That they haven’t earned enough money means you don’t get new works. We all want free and cheap music but I want the guys I like to keep on doing it. I had a lot of discussions with the police and musicians about how to make sure that they can earn a living. If they don’t, you can imagine what the options are. I am from the US. Had they come to my country, their rights will be well protected because we have very strong copyright laws. We have very strong anti-piracy measures. Hence, you can earn an income being a musician. You don’t want that not to happen. I think you want your musicians to stay here and perhaps sell their music abroad as well. I have been talking with a lot of people on how important that is to stop piracy here. We also talked about a lot of counterfeit goods.

I think that has become very problematic here.

Yes, I think that’s a huge problem. Let me share with you my true story. When I was a lot younger that I am now, I really wanted to buy a pair of very expensive shoes because I was to go out for a date. But I couldn’t afford that. Hence, I bought, let’s just say, a copy. I put them on, but the hill broke half way through the date. Do you know how bad it looks, limping around on one shoe? It was ridiculous. At that point I said, ‘I got ripped off!’ and went back to the seller, but he was gone. No money back and I left with my broken shoes. I think one of the things people have to remember is that if it’s cheaper, make sure that you are getting quality because you probably don’t get that. Copy goods don’t last long. The other thing is that they are very dangerous. Bicycle parts or automobile parts, they can break, causing accidents. For anything, be it something you eat or put on your face, pirates don’t care about the quality. Why would they, it’s not their brand and probably you the buyer might not be around. Hence, they don’t bother. I was in a Latin American country where they have a counterfeit shampoo. How do you know it’s counterfeit? Well, once you have washed your hair you don’t need to use it again because your hair has fallen out. You can’t imagine that. A lot of people buy that shampoo because it’s cheaper. But when you look at the labels, the packaging or printing, there is something wrong. You have to be really careful. We have a lot of discussions on how to spot counterfeits.

It’s alarming that counterfeits, IP thefts or piracy issues have come to be universal these days.

You know what, consumers are the same. I would like cheap and cheap is fine. But if cheap comes with counterfeit, it comes from people who don’t care about your health. They don’t pay taxes. They create nothing and employ no one. They just take the money and run. They leave. Businesses they have couldn’t continue.  I was in Jamaica and I talked to someone who has a movie theatre in Kingston. She shows official movies, not pirated ones, not counterfeit movies, and has a license to do that. Unfortunately, she is about to close down shop because there is so much piracy that she couldn’t earn a living. That is not what you want. You want the local guys to make legitimate products. The other thing is for music and for movies. I would like more movies to be made. I would like the people I like to make money. I would like the little guys to be employed. I would like the industry to grow. Nollywood is very big and one of the most well-known movie industries in the world. The movies are so popular. There was this one director. He made a big movie investing USD 2.2 million. But he couldn’t get his investment back. Piracy is a widespread in Nigeria. He is so popular in Nigeria, and said, “If you don’t enforce copyrights, I’m leaving Nigeria.” You don’t want that to be happening. We built a lot of our creative industries by the people that came from different countries who couldn’t get protection for their works. Support your artists by paying for their music so they can make more. The Ethiopian IP office did a study in 2014 and found out that 80 percent of the music sold in Ethiopia was pirated. You can imagine how much that is. Had the musicians received their rightful earnings, they could have produced more albums. You can’t live on popularity alone. That’s why I think IP is so important to Ethiopians.

Let’s talk about regulators. Did they say anything about enforcement? I don’t think the problem in this country is with issuing rules and regulations, but rather with enforcing them.

One of the things I did was to have a full day workshop with the Ethiopian IP office. We had police officials talking about enforcement, how to do it and why it’s important. The police were very enthusiastic. I think the enforcement people realize how important protection of IPs is for Ethiopia’s economy. In 2000, the director of the World Intellectual Property Organization (WIPO), Kemal Indris, wrote a book entitled, “Intellectual Property: the Economic Tool for Economic Development,” and I think what that means is register your trademarks and protect your copyrights and enforce the laws. You can imagine how many people could get jobs when the music industry grows. If we get rid of pirates or reduce their role and get the music industry to get at least 40 percent more, you would have a more vibrant industry that employs more people and remains sustainable. You have the famous Ethiopian coffee that uses trademarks and geographical names very well. You can say, ‘we are special and unique.’ You have three Ethiopian coffee brands registered in the US for geographical names. That’s how you promote products. I think Ethiopian coffee is like French wine and I don’t think you realize how many coffee varieties there are that could potentially be trademarked. If you would take each one of them and promote on their own trademarks, that is a whole industry that can be built on what has been started.

The elusive nature of piracy is further assisted by advancing technology that helped the theft to spread fast across boundaries. What would your take be on that?

It’s true. It’s just like that counterfeit shampoo bottle. It looks the same as the genuine product. But when you look closely, you would see how counterfeit makers don’t spend much time and money on packaging. They don’t care and on closer inspection, one would readily find out that there is a difference. The thing is I work hard to earn my money and I don’t like to buy shoes that fall apart. Counterfeiters make is easier and things sold on the Internet could be identified and there are ways to tell whether they are counterfeit or not.  Consumers need to be a little more proactive about that.

Do you think there are countries that turn a blind eye to counterfeiters?

There are countries well known for filling in the global need. One of the things that I was talking about is that the problem is where a lot of counterfeit is made — in China and other countries. That puts an awful burden on customs. That’s because customs is the first line of defense. They can stop some of the counterfeits. The rest needs to be dealt with by the police and individual lawsuits. The three have got to work together to reduce and deter the import of counterfeits. Have you heard about Ransomware? Recently, I was in China and China Daily reported that a lot of Chinese students’ computers systems crashed in the middle of the exam season. The Chinese government has found out that the computer virus had been put into pirated software and waited to be triggered. Hence, everybody that had illegal software had infected their computers. It didn’t happen right away. But there it is. When you buy pirated and cheap software, there could be a ticking bomb. That is the risk you take. When the bomb explodes, you lose everything that’s in the computer. Pirates don’t care. You can also find such dangers in music and in film. They would track your valuable information and steal your identity. Technology makes it easier for counterfeiters, and the police have to be very vigilant.

You have met and discussed IP issues with public officials and members of the private sector here. What are the common issues they raise?

It’s enforcement. The pirates, as we have said earlier, they don’t pay taxes. They truly are tick on society. I used to teach in Florence. They have a regulation that says it’s illegal to buy counterfeit products. But you can’t arrest every tourist that comes to Florence. Once upon a time, they actually did arrest and fine a couple of tourists that bought counterfeit goods. There was this crazy lady who was buying a counterfeit purse, and she was so intent on haggling that she didn’t notice the police raiding the market. The cops arrested both the seller and the lady. In fact, she was fined 400 Euros. It would have been cheaper to buy a genuine one. The idea was to scare the pirates away and they have put signs that prohibit piracy. They want people to take it very seriously. They wanted to turn them away from the tourist areas. The police raid every market every week and the outcome is the same. They put you in jail and confiscate your money. Hence, pirates are business people. They have a business model and when it doesn’t work anymore, they leave. That’s what they did in Florence. They left. Because if you shut me down every time and take my money, I can’t work there anymore. Perhaps it’s an economic decision.

Let’s talk about World Trade Organization (WTO) accession issues. What can you tell me about the drawn-out process when it comes to a country like Ethiopia?

I actually think the TRIPS agreement and the WTO is a nice way for the protection of IP rights. First of all, WTO was negotiated by 111 countries and doesn’t represent any particular point of view. There are now 160 member countries. TRIPS represents the best benchmark in international law. We have been talking about law enforcement and the nice thing about TRIPS is that it outlines effective enforcement mechanisms and fair and effective procedures. It doesn’t lay down any particular law but it says make sure that you have quick law enforcement, make sure that you have criminal penalties, make sure you have stronger border controls, make sure that there is a swift judicial system in place. When you put all these together, you get a solid enforcement mechanism. I think the nice thing is that it’s all there. You don’t have to do the legwork. The rules and the issues are there. I think being a member of that club in that instance takes off a lot of the legwork. I believe that’s easy. You look at your existing laws and tweak them a little bit and you would be good to go. In the TRIPS council you have IP issues and at the tables when you sit with others, you could raise your voices. You would ask about the treatment of traditional knowledge, about biodiversity or else. The African Union is working on a continent-wide trade agreement. My understanding is that they would also start to work on IP rights. That’s a great opportunity to have a multilateral treaty that represents Africa’s interests. You could become a leader on this. Because you have things others don’t have. You have cultural heritages, traditional knowledge, biodiversity, agricultural techniques and practices. You can put these things into multilateral treaties so that people would see what rules you think can apply and start using them. That’s how you would have a bigger impact beyond Africa. I think that is a great opportunity.

It took more than two decades for Ethiopia to begin the WTO accession process and it doesn’t appear to be finalized any time soon. Often we hear the government is unwilling to open up state-run entities like telecom and private enterprises such as banks. These are some of the sensitive areas that remained off the negotiation agenda for some time. Could you comment on that?

When it comes to IP, I think a lot of governments are starting to understand that IP is an economic tool. When we look at musicians and film-makers, we always think that they’re just creative people and that’s true. But it’s a creative industry that can be used. Part of the reasons IP doesn’t always get looked at is that people don’t think of it as a power tool. When you start to recognize that, I think that’s how you grow and sustain your industries by giving support. That’s an economic issue. The benefit of that is not only for artists as creators but everybody gets protected as well.

Any parting words as you wrap up your visit to Ethiopia?

I think Ethiopia is in a unique position. You have amazing history and culture. You have goods and services unique to Ethiopia. There’s a lot of thing other than coffee that you can sell to the world. It’s an exciting time and I think there is a lot of energy. What we need to do is to keep that energy focused and moving forward. One of the ways to do that is not to forget to protect your trademarks. Don’t forget to protect your copyrights and don’t forget to protect the public from counterfeits. [Reporter]