Protecting Intellectual Property in the Arabian Peninsula

The GCC states, Jordan and Yemen

David Price, Alhanoof AlDebasi

• Éditeur: Routledge
• Année: 2017
• ISBN:
  9781315452951
• Édition: 1
• Sujet: Business
• Sous-sujet: Business Development

This work examines the endeavours of the Arabian Peninsula States – namely the Gulf Cooperation Council member States of Bahrain, Kuwait, Oman, Qatar Saudi Arabia and the UAE, as well as Jordan and Yemen as prospective GCC members – in establishing national intellectual property protection regimes which both meet their international treaty obligations and are also congruent with their domestic policy objectives. It uses the WTO's TRIPS Agreement of 1995 as the universal benchmark against which the region's laws are assessed. The challenges faced by the States in enforcing their intellectual property laws receive particular attention.

Protecting Intellectual Property in the Arabian Peninsula considers the changing nature of the States' intellectual property laws since 1995. It argues that the decade immediately following the TRIPS Agreement was marked by a period of foreign forces shaping or influencing the character of the States' intellectual property legislative regimes, primarily through multilateral or bilateral trade-based agreements. The second and current decade, however, see a significant shift away from foreign influences and a move towards domestic and regional imperatives and initiatives taking over.

The work also examines regional initiatives for the protection of traditional knowledge and cultural heritage, as areas of intellectual property which fall outside the parameters of the TRIPS Agreement, but which are of significant concern to the States and other developing countries, and to which they are giving increasing attention in terms of providing proper protection.

1

PROTECTING INTELLECTUAL PROPERTY IN THE ARABIAN PENINSULA – INTRODUCTION AND CONTEXT

1.1 Introduction

This work builds upon the 2008 ground-breaking book by David Price entitled The Development of Intellectual Protection Regimes in the Arabian Gulf States: Infidels at the Gates. The primary objective of that earlier book was to examine the development of national legislative regimes for the protection of intellectual property rights in the six States of the Arabian Peninsula that constitute the Cooperation Council for the Arab States of the Gulf (the GCC),¹ namely, the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman, the State of Qatar, the Kingdom of Saudi Arabia and the United Arab Emirates (UAE). That earlier work also included commentary on the development of intellectual property protection in the Republic of Yemen, as a prospective member of the GCC.²

This latest work continues along a similar but much expanded path, again concentrating its attention primarily on the GCC member States. However, it is much more than just a second edition of that earlier work, for a number of reasons. First, its scope has been extended to include the Kingdom of Jordan – the other Arabian Peninsula State that is a prospective member of the GCC.³ Membership of the GCC will positively impact on Jordan’s and Yemen’s respective intellectual property protection regimes by providing the opportunity to adopt the GCC-sponsored regional harmonisation initiatives, currently in trademarks and patents.

Second, the work embraces a period of change and development in regional intellectual property covering almost a decade since the publication of the original book.

Third, this work acknowledges a noticeable shift in domestic intellectual property regimes away from foreign influences towards more regional-based influences.

And fourth, this work is the result of a team effort, with Alhanoof AlDebasi, of the Faculty of Law, Princess Noura University, Saudi Arabia, bringing her own expertise and unique local knowledge to the project.

As with its predecessor, this latest work examines the extent to which these legislative regimes and their enforcement both meet the States’ international treaty obligations and are congruent with their domestic policy objectives and needs. Particular attention is given to the foreign forces which have shaped or influenced the character of the Arabian Peninsula States’ intellectual property legislative regimes. Hence, the work examines the performance of the States in protecting intellectual property rights in the context of their accessions to World Trade Organisation (WTO) membership, the consequent compliance with the requirements of the WTO’s Agreement on the Trade-Related Aspects of Intellectual Property Rights (1995) (TRIPS) and the international conventions for the protection of intellectual property rights upon which the Agreement draws and builds, notably the Paris, Berne and Rome Conventions.⁴ The work does not attempt to offer a detailed legal commentary on the text of each intellectual property law in each State law, but instead focuses on the salient features of each area of intellectual property protection and its particular idiosyncratic features.

Accordingly, and appropriately, TRIPS serves as the benchmark for this work.

A secondary objective is to establish a substantive record of the nature of the States’ intellectual property laws and the history of their recent development. Previous studies on intellectual property rights protection that have concerned the Middle East region have tended to concentrate either on one type of law, notably copyright, trademarks or patents, or on a few Arabian Peninsula States only. Selective studies on intellectual property protection in developing countries further afield have tended to pass over the countries in the region, with the occasional exception of Saudi Arabia or the UAE, in favour of a selection from a more active and industrially advanced group of developing countries. This work attempts to redress that imbalance. Although it focuses primarily upon patent, trademark and copyright protection, since these are the major areas of intellectual property concern, interest and activity within the States and the international community, it also encompasses the other significant areas of intellectual property as enshrined in TRIPS, such as industrial designs, geographical indications, integrated circuits, undisclosed information (trade secrets) and new plant varieties.

The work also examines regional initiatives for the protection of traditional knowledge and cultural heritage, being areas of intellectual property which fall outside the parameters of TRIPS, but which are of significant concern to the States and other developing countries and to which they are giving increasing attention in terms of providing proper protection.

An appreciation of the enforcement and recognition of intellectual property rights in the Arabian Peninsula would be incomplete without an understanding of the religious, political and cultural forces deeply rooted in Middle East history that shape the protection of intellectual property rights in the Middle East today.⁵ Accordingly, the position of the Shariah as a major influence upon the intellectual property rights protection and the constitutional and judicial framework in which it resides is reviewed, as background and context for the examination of the region’s intellectual property laws. The precedence of Islamic law, or the Shariah, as a legal imperative is unequivocal; its status has been described by one eminent commentator thus:

Behind all secular law stands the Shariah law of Islam … the Shariah runs like a golden thread through the legal systems of the Arab Middle East.⁶

1.2 The Arabian Peninsula States and the development of intellectual property laws

What makes a study of these six GCC member States and Jordan and Yemen of current-day relevance and interest is that the emergence of each as a modern State is a fairly recent and ongoing occurrence and yet they have assumed a not insignificant regional and global influence in international affairs and trade. With the arguable exception of Jordan and Saudi Arabia, the other six States have taken quantum leaps in their national development, to emerge from being quasi-feudal or disputative tribal regions under actual or effective foreign domination into stable and sophisticated independent sovereign States, in just two generations or less. Bahrain, Kuwait, Qatar and the seven sheikhdoms of the Trucial States (that later formed the UAE) were still part of the UK Persian Gulf interests until they gained independence in 1961 (Kuwait) and 1971 (Bahrain, Qatar and the seven sheikhdoms). Oman, although long an independent sovereign State, was still under British influence prior to 1970 and deemed the most feudal and withdrawn of all the Arab Peninsula countries; it did not start to emerge from this pseudo-feudal condition until the present Sultan succeeded his father in a British-backed palace coup in 1970.⁷ Prior to 1990, Yemen existed as two separate States, the Yemen Arab Republic (North Yemen) and the pro-Marxist People’s Democratic Republic of Yemen, until they formally united to create the Republic of Yemen on 22 May 1990. However, armed insurgency, separatist movements and civil war have continued to plague the country. Not surprisingly, therefore, Yemen has lagged behind the other States in terms of its emergence as a modern State generally, and in respect of the development of its intellectual property protection regimes.

As part of their ongoing respective political, economic and social metamorphoses, the legal systems of the States have undergone dramatic, radical and progressive change and development over the last 40 years or so and that change is continuing. The major trend has been a shift towards greatly increased codification of law and administered regulation which has entailed increasing substitution of institutionalised procedures for the former informal, discretionary exercise of personal authority sometimes based on local interpretation of Shariah legal principles.⁸ With this movement towards codification of the law and the institutionalisation of the judiciary and government, there has emerged a growing tension between the protection of local and national interests and traditions and the governmental recognition of the need to embrace western-based legal and economic principles, practices and infrastructures.

The work argues that there has existed a disjunct between the formal expression of intellectual property protection through the States’ laws and their practical application through the States’ respective enforcement strategies and efforts. This disjunct arose as a consequence of the external pressures upon the States to adopt laws for which they had neither the resources nor the expertise nor the infrastructures to effectively execute to the level of satisfaction sought by the more demanding developed countries. The work speculates on the extent to which the legislative and operational responses of the States satisfy WTO/developed countries’ expectations and what further changes might be sought in the future.

Since the 1960s and early 1970s, when most of the Arabian Peninsula States either gained their independence or emerged from sustained periods of international isolationism, they have undertaken a transformation of their intellectual property legislative regimes at an extremely rapid rate – virtually in the time frame of one or two generations. The period of this transformation has been marked by three major, but very different, phases in the development of the regimes. Each phase has been characterised by different degrees of foreign intervention which have directed or at least strongly influenced the construction of the States’ intellectual property laws. But this foreign intervention has not necessarily caused the creation of laws which have been congruent with the States’ needs or which have enabled the achievement of national objectives and international requirements in terms of their enforcement effectiveness.

The first of these phases, namely the pre-TRIPS period that existed until the mid-1990s and prior to the establishment of the WTO, was notable for the dearth of sui generis intellectual property laws in place in the States; the exceptions were few in number and existed in the fields of trademarks, patents and industrial designs, but even these laws were subject to foreign influence. However, this dearth of sui generis laws did not mean that protection for certain types of intellectual property rights was not available; it existed in an overarching perspective in the divine laws of social and moral conduct laid down in the Qur’an and the Sunnah of the Prophet. In a more corporeal and secular sense, and in the absence of any mainstream intellectual property framework, it also existed in the form of laws governing commercial activity and conduct. Protection in pre-TRIPS times was available for the benefit of the foreign merchant or the merchant’s local agent, the trader and the consumer, instead of for the holder of an intellectual property right of foreign origin, but on occasion it coincided for the benefit of both groups. However, even these commercial laws were generally subject to foreign influence. In addition, the national frameworks for the control of publishing and public dissemination of printed material, which all States actively enforced, provided some limited protection for certain types of copyrightable material.

The second developmental phase is marked by the establishment of the WTO, the consequent entry into force of TRIPS and a post-TRIPS flurry of legislative activity by the Arabian Peninsula States as they endeavour to meet their statutory obligations to introduce intellectual property laws or to make their current laws TRIPS-compliant and their enforcement effective. TRIPS heralded a major shift in intellectual property by establishing unprecedented levels of protection to be enforced globally. However, the shift took shape by reference largely to the needs of the leading industrialised nations who were the major creators and exporters of intellectual property and sought the highest possible standards of protection for the accompanying rights. The World Intellectual Property Organisation (WIPO), which had already been a significance influence in shaping the States’ pre-TRIPS intellectual property laws, continued to play a crucial role in guiding the States in their compilation of TRIPS-compliant laws and in their enforcement, structural and administrative capacity-building efforts. With fluctuating degrees of commitment, the States embarked on reshaping their intellectual property protection regimes during this period.

Hardly had the States come to terms with the enormity of the dimension of the transformation to their respective intellectual property protection regimes required by the TRIPS and post-TRIPS phase than they were faced with a new round of imposed changes as they entered the third phase – the TRIPS-plus phase. In the first half of this phase, generally the first post-TRIPS decade, a dominant driving factor shaping the character of their laws is the bilateral trade agreement strategy pursued by the United States. This new round commenced with a series of bilateral trade and investment agreements from the late 1990s, followed by free trade agreements (FTAs) by the United States with Jordan, Bahrain and Oman. All three agreements incorporate extensive provisions on intellectual property. The provisions constitute much higher standards of protection than those set by TRIPS and also remove and restrict the limited degree of manoeuvrability that TRIPS permitted developing and least-developed countries. The agreements are reinforced by demands that the signatory States not only adopt higher standards enshrined in the FTAs themselves but also adopt and adhere to a range of multilateral treaties which represents TRIPS-plus standards. Both the FTAs and the multilateral treaties reduce and restrict the flexibilities and exceptions provisions that TRIPS allows signatory States to craft their laws to take account of their respective national needs and objectives.

However, the second half of this phase – namely the second post-TRIPS decade or thereabouts – sees the GCC itself taking a more prominent role in regional intellectual property leadership. This developing role is evidenced by the GCC’s willingness to expand its membership, and to launch a number of initiatives in regional intellectual property protection, namely a regional patents registration scheme, followed by a unified trademarks regulation and subsequent law, and more recently establishing a GCC intellectual property training centre. The trademarks law has already been formally adopted by four of the GCC member States, and there is speculation that the others may follow in the foreseeable future.

1.3 The WTO, TRIPS and the globalisation of intellectual property rights

1.3.1 The global pressures

A fundamental element of the emergence of the modern Arabian Peninsula is the move to gain membership of the WTO and the consequent perceived benefits of being a member of the global trade community (or the negative impact of not attaining membership). One consequence of such membership, however, is that legislation relating to trade and services, and to intellectual property in particular, must conform to the provisions of the international treaties in this area, notably TRIPS and the Paris, Berne and Rome Conventions. TRIPS set new international minimum standards of protection for each of the main categories of intellectual property by building on these major conventions and adding a requirement for effective enforcement regimes.

Since coming into effect in January 1995, TRIPS has gene...