Feature

Using Intellectual Property Law to Promote Human Flourishing for “Market Women”

By J. Janewa Osei-Tutu

©2018. Published in Landslide, Vol. 10, No. 4, March/April 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

I recently traveled to Ghana, West Africa. While driving from Accra to Cape Coast, I observed several small stalls on the side of the road with names on them. Clearly small enterprises, the stalls had no obvious branding aside from the handwritten names of the women who seemed to be the proprietors. These women who wrote their names—Abena, Akua, and Charity—were attempting to distinguish their enterprises from one another by using their first names on their stalls. But the names alone did not communicate very much to the potential customer. With some awareness of how to create and use trademarks, these women could more effectively build their distinctive brands and grow their businesses.

In various countries, including the United States, many small businesses are run by women.1 In developing countries, such as Ghana, these female entrepreneurs sell a range of items, from arts and crafts to cell phones. The “market women” hustle to sell their fruits, vegetables, and other wares to support their children and families. Many of these women are not aware of how intellectual property (IP) laws can help them gain strategic advantages in the marketplace. They may not, for example, develop their brand by using trademarks to distinguish their businesses from those of competitors. They may also be unaware that their innovations and creative works may be protected by copyrights or patents. IP rights can help these female entrepreneurs to increase economic opportunities and to promote their human development.2 Women, especially those who are elderly or who are the sole adult income earner in their household, are more likely to live in poverty.3 IP laws can be used as a tool for promoting human flourishing and human development if entrepreneurial women can better use IP rights to advance and promote their small enterprises.

Intellectual property is relevant to human development in the United States and other industrialized countries. However, the potential for IP law to promote human development in developing countries is even greater. This is because the use of IP rights is much more limited in those nations. This article will, therefore, discuss the use of IP law to promote the human flourishing of female entrepreneurs and “market women” in developing countries.

IP as a Tool for Human Development

The term “human development” can mean a variety of things. While human development is not a precise term, the definition used here is the multifaceted one adopted by the United Nations.4 It includes progress in terms of health, education, and economic wealth.5 These are among the factors used to determine where countries fall on the United Nations Human Development Index, and are pertinent to discussions about intellectual property because IP rights can affect individual and national health, education, and economic progress. Importantly, these human development factors also align with the patent and copyright goals of promoting innovation and progress. Recognizing the relationship between IP and development, the World Intellectual Property Organization (WIPO) has adopted a Development Agenda, which has 45 recommendations.6

Although intellectual property is not typically discussed as a tool for human development, IP laws can play a critical role in advancing or hindering human progress.7 One can think of the relationship between IP rights and human progress in a variety of ways. For instance, the connection between patent rights and access to medicines has been well studied. Patent rights provide an incentive for pharmaceutical companies to invest in the research and development that is required to produce medicines. A patent gives the patent owner the exclusive right to make, use, and sell the patented product and to prevent others from doing so. The 20-year term of protection for the patent gives the pharmaceutical companies the market exclusivity that allows them to recover their investment. This is an example of IP rights promoting progress because society benefits from having medicines that promote health and save lives.

On the other hand, patent rights can create barriers to access to life-saving medicines. Patent rights can mean higher drug prices, because only the patent owner can make and distribute the patented medicine. At the international level, this limitation on access led to a significant critique of IP rights as part of the access to medicines debate, particularly in relation to medicines for HIV/AIDS.8 In response to criticisms about the deleterious effects of patent rights on public health, World Trade Organization (WTO) members issued the Doha Declaration on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Public Health.9 In this declaration, WTO member states expressly acknowledged the role of intellectual property in promoting innovation while clarifying that IP rights should not interfere with the right to health.10

Copyrights, trademarks, and geographical indications can also affect social, cultural, educational, and economic development. Patents and copyrights protect the various technologies that we have become accustomed to using. This can range from cell phone technologies to online educational tools or vehicle safety features. Copyright protects literary and artistic works, while trademarks are protected indications of source for goods and services that are used in commerce. For example, opportunities or barriers are created by copyrights and trademarks in relation to music, films, books, and branded clothing and other items. In addition, geographical indications protect regionally identifiable foods and other products.

Human Development in the Global Context

Harmonized global IP standards, as established through the WTO Agreement on TRIPS, are here to stay.11 Developing nations are wisely recognizing that intellectual property can be used as a tool for human development. For example, the African Union (AU), which is comprised of 55 member states,12 was established in 2001 to create an “integrated, prosperous and peaceful Africa.”13

In June 2014, the 23rd Ordinary Session of AU Heads of State and Government Summit adopted a 10-year Science, Technology and Innovation Strategy for Africa (STISA-2024), which has innovation and human development as its main goals.14 In particular, the AU underscores the importance of achieving sustainable socioeconomic growth, reducing poverty, achieving food security, promoting public health, and protecting the environment.15 This model envisions innovation and human development occurring together. In addition, a group of developing countries called the Group of Fifteen (G-15) has prepared a paper titled Intellectual Property for Development.16 G-15 also recognizes that intellectual property should play a role in human development.17

Development is an important global objective upon which countries have agreed. In 2002, the nations of the world established eight Millennium Development Goals (MDGs) with a 15-year plan for global development.18 They committed to eradicating poverty, and they also committed to efforts to improve health and education, and to creating a global partnership for development.19 Building on their progress, these nations gathered in 2015 to agree upon the post-2015 development goals.20 The 2015 Sustainable Development Goals (SDGs) build on the MDGs of improving health and education, eradicating poverty, and promoting gender and income equality.21

The SDG 9, for instance, aims to “[b]uild resilient infrastructure, promote sustainable industrialization and foster innovation.”22 There are eight targets for SDG 9.23 Three of these targets appear to be directly related to IP rights. These include the targets of enhancing scientific research, promoting infrastructure development through technological and technical support, and supporting domestic technology development, research, and innovation.24

These SDGs implicate women’s rights as well as IP rights. One of the overarching goals of the SDGs is to improve income equality and opportunities for women and girls. IP rights can support this goal, while simultaneously supporting the goals of fostering innovation, eradicating poverty, and reducing income inequality. When women build their business goodwill and protect their interests through IP law, the SDGs are that much closer to being achieved.

The “Market Woman”: Using IP to Promote Human Development

Women entrepreneurs who are aware of the possibilities that IP rights create will be better able to protect and distinguish their products in the marketplace. Patents, for example, protect new, useful, and nonobvious inventions. However, this protection is not automatic, but rather requires one to complete an application and examination process. This requires the entrepreneur to have sufficient awareness of the possibility of obtaining patent protection and the means to do so. Women entrepreneurs may create innovations that could be protected by patents, which, as discussed above, create a period of market exclusivity. Obtaining a patent can be an expensive and complicated process, but the rewards can be significant. The first step is for the African market woman to recognize that she may have created something of value that she could protect, market, and sell. Due to the application process, patents are probably the most complicated of all the forms of intellectual property and the least likely to be used by the African market woman.

Copyright and trademarks are less costly and less involved than obtaining patent protection. Both these forms of intellectual property can also help to advance women’s social, cultural, and economic progress. For example, market women may create cultural artworks that are protectable by copyright. Because copyright protection arises upon creation, no application process is required. Some nations, however, may require registration before the rights can be enforced.

African market women and other female entrepreneurs, including Abena, Akua, and Charity, whose businesses were described at the beginning of this article, would benefit from creating logos and verbal trademarks that could serve as indications of source for their products or services. By using trademarks in association with their goods or services, these market women would have effective tools to communicate something about their enterprises, while distinguishing their products and services from those of other enterprises. These women could grow their businesses, thereby increasing their opportunities, which can have positive impacts on their economic progress. This improves their ability to obtain health care and access to educational resources for themselves and their families.

Certainly, the full picture is much more complex, and IP rights play a small role in supporting human development. However, IP rights are significant in the world economy, and these female entrepreneurs may be better able to enjoy their small part if they are aware of the advantages intellectual property can provide them. For example, a United States Patent and Trademark Office (USPTO) report estimates that in the United States, “IP-intensive industries directly and indirectly supported 45.5 million jobs, about thirty percent of all employment.”25 According to the report, trademark-intensive industries are more numerous than copyright and patent industries and contribute the most to employment in the United States.26 Thus while intellectual property may not be the most important factor in promoting human flourishing and human development for women entrepreneurs, it is one factor that should be incorporated into the overall development framework.

Endnotes

1. Boosting Trade in Africa: Why Women Are the Key, World Bank (Nov. 20, 2013), http://www.worldbank.org/en/news/feature/2013/11/20/boosting-trade-in-africa-why-women-are-the-key.

2. See J. Janewa Osei-Tutu, Human Development as a Core Objective of Global Intellectual Property Law, 105 Ky. L.J. 1 (2016).

3. U.N., The World’s Women 2015: Trends and Statistics ch. 8 (2015), https://unstats.un.org/unsd/gender/chapter8/chapter8.html.

4. The United Nations Development Programme defines human development and the human development approach as “expanding the richness of human life, rather than simply the richness of the economy in which human beings live. It is an approach that is focused on people and their opportunities and choices.” About Human Development, U.N. Dev. Programme, http://hdr.undp.org/en/humandev (last visited Jan. 19, 2018). Amartya Sen, a leading scholar in the development field, defines development as the freedom which requires that people be free from poverty, tyranny, and social deprivation. Amartya Sen, Development as Freedom 3 (1999).

5. See Human Development Index (HDI), U.N. Dev. Programme, http://hdr.undp.org/en/content/human-development-index-hdi (last visited Jan. 19, 2018).

6. See Development Agenda for WIPO, World Intell. Prop. Org., http://www.wipo.int/ip-development/en/agenda/ (last visited Jan. 19, 2018).

7. See Madhavi Sunder, From Goods to a Good Life: Intellectual Property and Global Justice 1–22 (2012); Joseph E. Stiglitz, Economic Foundations of Intellectual Property Rights, 57 Duke L.J. 1693, 1696 (2008); Madhavi Sunder, IP3, 59 Stan. L. Rev. 257, 314 (2006).

8. See Ellen F.M. ’t Hoen, TRIPS, Pharmaceutical Patents and Access to Essential Medicines: Seattle, Doha and Beyond, in Economics of Aids and Access to HIV/AIDS Care in Developing Countries: Issues and Challenges 39, 41–42 (Jean-Paul Moatti et al. eds., 2003).

9. World Trade Organization, Ministerial Declaration of 14 November 2001, WTO Doc. WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002).

10. See id. ¶¶ 3–4.

11. Agreement on Trade-Related Aspects of Intellectual Property Rights arts. 9–21, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299. Preexisting agreements, such as the Berne Convention and the Paris Convention, lacked the kind of enforcement mechanism that is available under the WTO. John E. Giust, Noncompliance with TRIPs by Developed and Developing Countries: Is TRIPs Working?, 8 Ind. Int’l & Comp. L. Rev. 69, 77 (1997).

12. Member States of the AU, African Union, https://au.int/en/memberstates (last visited Jan. 19, 2018).

13. AU in a Nutshell, African Union, https://au.int/en/history/oau-and-au (last visited Jan. 19, 2018).

14. African Union Comm’n, Science, Technology and Innovation Strategy for Africa 2024, at 10 (2014), http://www.hsrc.ac.za/uploads/pageContent/5481/Science,%20Technology%20and%20Innovation%20Strategy%20for%20Africa%20-%20Document.pdf.

15. Id.

16. IP for Development, Group of Fifteen (2014), http://g15.org/g-15-joint-statements/ip-for-development/. The member countries are Algeria, Argentina, Brazil, Chile, Egypt, India, Indonesia, Islamic Republic of Iran, Jamaica, Kenya, Malaysia, Mexico, Nigeria, Senegal, Sri Lanka, Bolivarian Republic of Venezuela, and Zimbabwe. About G-15, Group of Fifteen, http://g15.org/member-countries-2/ (last visited Jan. 19, 2018).

17. Grp. of Fifteen Working Grp. on Sectoral Cooperation, Concept Note on Intellectual Property 1 (2014), http://g15.org/wp-content/uploads/2014/04/G15-WGSC-Thematic-area-IP.pdf (“An important angle in recent debates has been the broad implications for development, as a public policy, and the role of developing countries in the evolution of the international system. Indeed, Developing Countries are calling for a balanced international intellectual Property system that takes into account the interest of the IP right’s holders as well as the public interest of the larger society.”).

18. U.N., The Millennium Development Goals Report 2015, at 4 (2015).

19. Id. at 4–7.

20. Historic New Sustainable Development Agenda Unanimously Adopted by 193 UN Members, U.N. Sustainable Dev. Goals (Sept. 25, 2015), http://www.un.org/sustainabledevelopment/blog/2015/09/historic-new-sustainable-development-agenda-unanimously-adopted-by-193-un-members/.

21. Sustainable Development Goals, U.N. Dev. Programme, http://www.undp.org/content/undp/en/home/sustainable-development-goals.html (last visited Jan. 19, 2018).

22. 9: Industry, Innovation and Infrastructure, U.N. Sustainable Dev. Goals, http://www.un.org/sustainabledevelopment/infrastructure-industrialization/ (last visited Jan. 19, 2018).

23. Id.

24. Id.

25. Econ. & Statistics Admin. & USPTO, Intellectual Property and the U.S. Economy: 2016 Update 12–13 (2016), https://www.uspto.gov/sites/default/files/documents/IPandtheUSEconomySept2016.pdf.

26. Id.

J. Janewa Osei-Tutu

J. Janewa Osei-Tutu is an associate professor of law at Florida International University College of Law. Prior to joining the legal academy, she spent several years as a Canadian Department of Justice legal counsel to Industry Canada. In that capacity, she provided legal advice to the Canadian Intellectual Property Office and to the Intellectual Property Policy Directorate at Industry Canada (USPTO equivalent). All views represented herein are those of the author and do not represent the views of any organization with which she is, or has been, affiliated.