The Development of Intellectual Property Regimes in the Arabian Gulf States

Infidels at the Gates

David Price

• Publisher: Routledge
• Year: 2009
• ISBN:
  9781134024957
• Edition: 1
• Topic: Business
• Subtopic: Business Development
• Index: Business

This book examines the development of national legislative regimes for the protection of intellectual property rights in the Arabian Gulf states: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, the United Arab Emirates, and Yemen. David Price analyses IP rights in these states in the context of WTO membership, and consequent compliance with the requirements of the WTO's TRIPS Agreement. The challenges of domestic enforcement of the states' IP laws receive critical attention.

A particular focus of the book is on foreign forces which have shaped or influenced the character of the states' IP protection regimes. It includes commentary on the contribution of foreign states, the WTO and WIPO in the pre-TRIPS and TRIPS compliance stages, and the US bilateral trade strategy for pursuing IP protection standards that exceed those enshrined in TRIPS, and the impact of these forces upon the states' enforcement performance. The role of the Office of the United States Trade Representative (USTR) and the Special 301 provisions as a powerful tool in the US' bilateral strategy receives particular attention.

The intellectual property laws of these states have been developed virtually in the span of a single generation, and the process of change is continuing. As such, this book will interest practitioners both in and outside of the region, and those with an interest in intellectual property law, comparative law, Middle East legal systems and affairs, and international trade.

1 ‘Infidels at the gates’ – introduction and context

1.1 Introduction and context

The primary objective of this work is 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’, otherwise known as the Gulf Cooperation Council (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 (the UAE).

In order to properly provide a full survey of all Gulf states, the work also includes commentary on the development of intellectual property protection in the remaining Gulf state that is not yet a GCC member, namely, the Republic of Yemen.²

The 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.

As the title suggests, particular attention is given to the foreign forces which have shaped or influenced the character of the Arabian Gulf 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 (1994) (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 and the Washington Treaty.³ In brief, TRIPS serves as the benchmark for this study. The work does not attempt to offer a detailed legal commentary on the text of each law, but instead focuses on the salient features of each area of intellectual property protection and its particular idiosyncratic features.

The work also examines the US strategy of using bilateral agreements to achieve standards of intellectual property protection that exceed those enshrined in TRIPS and the impact of this strategy upon the Gulf states’ intellectual property protection regimes and their degree of success in effectively enforcing them. The role of the Office of the United States Trade Representative (USTR) and the Special 301 provisions as a coercive tool in the US bilateral strategy receive particular attention.

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 Gulf states only. Selective studies on intellectual property protection in developing countries further afield have tended to pass over the countries in the Gulf region, with the occasional exception of Saudi Arabia, in favour of a selection from a more active and industrially advanced group of developing countries. This work attempts to redress that imbalance. While it focuses primarily upon patent, trademark and copyright protection, since these are the key 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 in the states, such as industrial designs, geographical indications, integrated circuits and undisclosed information (trade secrets), and new plant varieties. It 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 Gulf 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 Gulf 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.⁴ Accordingly, the position of Shariah law 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 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.’⁵

1.2 The Gulf states and the development of intellectual property laws

What makes a study of these six GCC member states and Yemen of current-day relevance and interest is that the emergence of each as a modern state is a very 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 Saudi Arabia, the other five GCC member 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 Gulf countries; it did not start to emerge from this pseudo-feudal state until the present Sultan succeeded his father in a British-backed palace coup in 1970.⁶ 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 (South Yemen, formerly under British control centred in Aden until 1967). The two states formally united to create the Republic of Yemen on 22 May 1990, although armed insurgency and separatist movements continued until 1995. Not surprisingly, therefore, Yemen has lagged behind the other Gulf states in terms of its emergence as a modern state generally, and in respect of the development of its intellectual property protection regimes.

The consequence of this strong British influence, at least in the eastern and southern Gulf region, was that a system of British laws and justice prevailed throughout the Gulf region until 1971 (except for Muslim nationals on matters within the province of Shariah law) and this influence, modified and added to by other western influences, continued well after independence.

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 30 years or so and that change is continuing. The major trend has been towards 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.⁷ 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 exists a dichotomy between the formal expression of intellectual property protection through the states’ laws and their practical application through the states’ respective enforcement strategies and efforts. The dichotomy arises as a consequence of the external pressures upon the states to adopt laws for which they have 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 late 1960s/early 1970s, when they either gained their independence or emerged from sustained periods of international isolationism, the Gulf states have undertaken a transformation of their intellectual property legislative regimes at an extremely rapid rate – virtually in the time frame of a single generation. 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 significant 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, is notable for the dearth of sui generis intellectual property laws in place in the Gulf states; the exceptions were few in number and existed in the field of trademarks, patents and industrial designs, but even these laws were subject to foreign design. However, this dearth of sui generis laws does 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 Hadith 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 introduction of TRIPS and a post-TRIPS flurry of legislative activity by the GCC states as they attempt 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 worldwide. However, the shift took shape by reference largely to the needs of the few leading industrialised nations (and to a lesser extent those of the other major developed countries). 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 have the Gulf 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 are faced with a new round of imposed changes as they enter the third phase – the TRIPS-plus phase. The dominant driving factor shaping the character of their laws during this period is the bilateral agreement strategy pursued by the United States. This new round commenced with a series of bilateral trade and investment agreements from the late 1990s; more recently, the United States has concluded free trade agreements (FTAs) with Bahrain and Oman, both agreements incorporating 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 bilateral 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 allowed to signatory states to craft their laws to take account of their respective national needs and objectives.

The intellectual property laws of the Gulf states reflect a common heritage. They contain many similarities with each other, indicating an ongoing process of mutual collaboration and borrowings. They have also drawn much from countries in the region which progressed through an earlier modernisation/westernisation process, notably Egypt, and from other Arab states through their influence in regional groups such as the League of Arab States and the GCC itself. However, the major influence in the construction of their legislative regimes and the character of the intellectual property laws has undoubtedly been WIPO and the models it provides through its various draft laws and technical assistance.

Nevertheless, the states’ intellectual property laws still contain their own idiosyncrasies, arising from, for example, the status of Shariah law and its relationship to intellectual property, regional attitudes towards enforcement, protection of geographical indications, wines and spirits, moral rights and translations of copyright works, compulsory licensing, protection of pharmaceuticals and even the Arab boycott of Israel (for which statutory provision existed in earlier commercial and intellectual property laws, but which has now been generally removed).

1.3 TRIPS and the globalisation of intellectual property rights

1.3.1 The global pressures

A fundamental element of the emergence of the modern Gulf state 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 Madrid Conventions and the Washington Treaty. TRIPS sets 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 its introduction in January 1995, TRIPS has generated considerable ongoing debate concerning the benefits and disadvantages that its standards of intellectual property protection bring to developed, developing and least developed countries. According to some commentators, there exists a powerful lobby representing developed countries which believes that all intellectual property rights are good for business, benefit the public at large and act as catalysts for technical progress.⁸ The rights are necessary to stimulate economic growth which, in turn, contributes to poverty reduction; by stimulating invention and new technologies, they increase agricultural or industrial production, promote domestic and foreign investment, facilitate technology transfer and improve the availability of medicines necessary to protect public health. The developed country lobby considers TRIPS to be a useful tool with which to achieve its objectives and it holds that there is no reason why a system that works for developed countries could not work in similar fashion in developing countries.⁹

On the other side, there are those who believe that the protection of intellectual property rights according to the formula of the major industrialised countries is likely to cripple the progress of local industry and technology in developing countries, will harm their local populations and benefit none but the developed world.¹⁰ Intellectual property rights do little to stimulate invention in developing countries, where the necessary human and technical capacity is absent, and they are ineffective in stimulating research to benefit the poor because they will not be able to afford the products, even if developed. They limit the option of technological learning through imitation and they allow foreign firms to drive out...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Acknowledgements
• List of tables
• List of abbreviations
• 1 ‘Infidels at the gates’ – introduction and context
• 2 ‘The golden thread that binds’ – the Shariah and intellectual property protection
• 3 Pre-TRIPS and intellectual property protection in the Gulf states
• 4 TRIPS and the nature of compliance by the Gulf states
• 5 Post-TRIPS and the enforcement dichotomy
• 6 TRIPS-plus and ‘raising the bar’
• 7 TRIPS-minus and protection still pending
• 8 TRIPS anew—Insha’allah
• Notes
• Appendix: Dedicated intellectual property laws, regulations and orders in the Arab Gulf states
• Bibliography