Ecuador is preparing a new intellectual property policy. In this interview with IP watch, Hernán Núñez Rocha, Head of the Ecuador IP Office explains its special character “We consider that the public domain is the general rule and IP is the exception, and the enforcement of IP rights will always be in balance with other fundamental rights”
IP watch, October 13, 2015 – Ecuador is preparing a new intellectual property policy that aims to better suit the country’s strategic development. On the occasion of the World Intellectual Property Organization General Assembly, Hernán Núñez Rocha, head of the Ecuadorian IP office sat down with Intellectual Property Watch to talk about the country’s work on its IP policy and its innovative use of IP as a tool for local development. He also explained Ecuador’s position on the WIPO committee on traditional knowledge.
Intellectual Property Watch (IPW): Can you describe the aim of Ecuador new IP policy?
Hernán Núñez Rocha: We have a big government project [draft legislation] which aims to change our productivity matrix. We are currently a country whose principal fields of production are primary goods, such as agricultural goods, and oil. We want to change to another model in which the principal element will be knowledge.
Devising this strategy, we realised that we need to use IP as a tool, a strategic tool. In this objective, we ran some policies related, for example, to compulsory licences, but also considered changing our IP law.
We now have a project of law [draft legislation] which is being considered by the Congress, and this is a big project because it will encompass science, technology, innovation, IP and traditional knowledge, under a single umbrella.
This package will be the first big step in this change of model. Specifically about IP, we are implementing some changes. For example, we consider that the public domain is the general rule and IP is the exception, and the enforcement of IP rights will always be in balance with other fundamental rights.
Some articles are related to free software. In particular, there is an obligation for state procurements to only acquire free software, with some exceptions. Another article gives the possibility for customers to choose which software will be installed on their electronic devices.
“We consider that the public domain is the general rule and IP is the exception, and the enforcement of IP rights will always be in balance with other fundamental rights.” – Hernán Núñez Rocha
We also made a classification of goods in four separate areas. The first group relates to human rights and for goods in this category, it will be possible to authorise the use of those goods without the authorisation of the right holder, such as compulsory licence and links to Article 31 [Other Use Without Authorization of the Right Holder, known as the “flexibilities”] of TRIPS [World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights].
The second group relates to strategic sectors, as defined in our constitution, such as telecommunication and oil. We make sure that all the contracts that the state has with private companies are conditioned on the provision of technology transfer.
The third group relates to biodiversity and traditional knowledge. We have set specific conditions for access to our biodiversity, in particular genetic resources, and we recognise traditional knowledge as collective rights, which cannot be protected as IP per se. In some cases, when we develop some new process or products, it is possible to obtain patent protection, but this is conditioned on the prior informed consent of the local communities and the sharing of benefits with those communities.
According to our constitution, biodiversity is part of the heritage of the state.
In the last group are all the goods not included in the three first groups.
The legislation would also change the patentability criteria and we raised the threshold for patentability in order to get better quality patents. We are convinced that the better the state of the art is, the better it is for the industrialisation of countries like Ecuador, since it would be possible to use some technology without patent.
In the new law, we are using all the flexibilities in IP and in particular copyrights, and we are including a number of flexibilities in copyright to provide exceptions and limitations for libraries, educational institutions and archives. We are using compulsory licences allowed under the Berne Convention for copyright.
IPW: Did Ecuador ratify the Nagoya Protocol [on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity]?
Núñez Rocha: Ecuador signed the Nagoya Protocol, but it is not ratified yet.
IPW: Do you consider that Ecuador is spearheading the efforts to use IP as a development tool in the region?
Núñez Rocha: We are informing other Latin American countries of what we are doing. But it will take some time because most directors are focusing on other fields, and it seems that they do not see IP as a strategic tool. They are focusing mainly on the protection, and that is the traditional way we learned about IP at the beginning.
IPW: So would you agree that it would be important that an international instrument be adopted to provide such exceptions and limitations in the WIPO Standing Committee on Copyright and Related Rights (SCCR)?
Núñez Rocha: Yes, actually we agree, we made a declaration in this sense during the WIPO General Assembly.
IPW: Would you consider establishing a national database to protect your traditional knowledge from misappropriation, such as the Indian Traditional Knowledge Digital Library (TKDL)?
Núñez Rocha: We are also considering having a database but it would only put already published traditional knowledge. Some traditional knowledge is kept secret by communities and we want to support their decision.
Núñez Rocha and Ñusta Maldonado of the Ecuador mission in Geneva
IPW: This week at WIPO there are extensive discussions on the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), what is the position of Ecuador on the mandate of the committee, and how important is it for your country?
Núñez Rocha: For us it is a very important issue. The existing mandate did not work well, so maybe we should think about a different mandate which will allow us to go forward with the negotiations. It is important to discuss traditional knowledge as the object of protection but also in the relation to traditional IP protection. For pluricultural and mega-diverse countries like Ecuador, it is very important that this issue is discussed in international fora, such as WIPO.
IPW: What proposal do you support for a new mandate of the IGC? Would you support a permanent committee?
Núñez Rocha: We think that it is necessary to have a permanent committee.
IPW: What are the next steps for the new national bill?
Núñez Rocha: The bill was drafted two years ago and put into a wiki to share with everybody and receive comments. The wiki received more than 1.7 million visitors and 38,000 comments from all around the world. So the project changed a lot since it was put into the wiki.
The bill has been with the Congress since the beginning of June. It just passed the first discussion. We have two discussions on bills in Congress. We expect that in the next three to six months, the bill will be approved.
As an IP office, we are working very closely with the Congress in order to advise them with the most complicated aspects of IP.
IPW: WIPO provides technical assistance to countries about their IP legislation, have they been helpful or are they even involved?
Núñez Rocha: We did not ask WIPO yet. We relied on a detailed study started three years ago about all the treaties Ecuador is party to, and all the flexibilities. We asked the advice of the South Centre and some other international consultants.
IPW: Does Ecuador have a particular national policy to reduce movie piracy, in particular licences with local movie companies?
Núñez Rocha: Yes, we do and we continue that policy. For example we know that they are about 50,000 informal stores of films around the country and we cannot prosecute them all to enforce the IP rights, but we realised that 50,000 local shops are an opportunity to sell cultural goods. So we made an agreement between copyright holders and those stores so that they sell original films from local producers.
This was the first step. Maybe the second step will be to extend the policy to Latin American films. It was a very good idea, because now we can see some results. For example, at the beginning of the initiative, only a few producers agreed to join and now most of them are part of this project. When a new local film is made, one of the first things that the producers do is to licence to those stores.
For foreign films nobody is there to represent producers which makes it impossible for resellers to get the licence. In our office there are no claims for enforcement for foreign films.
IPW: Thank you.
Image Credits: Catherine Saez