1.

INTRODUCTION

The essay discusses the factors that influenced the ‘internationalization’ of intellectual property
rights and the implications, with regards the protection and enforcement of intellectual property
rights for African Least Developed Countries (LDCs) such as Zambia. This will be accomplished
by looking at the main points that pushed the nations into internationalizing intellectual property
rights, and further considering the consequence that such internationalization has on developing
Countries such as Zambia. But before that, key terms of the assignment being intellectual
property, intellectual property rights, and internationalization will briefly be defined so as to
have a clear picture of what the essay discusses. Lastly, a conclusion will be drawn on what the
essay discusses.

2. DEFINITIONS OF KEY TERMS

2.1. INTELLECTUAL PROPERTY

Intellectual property is a term that refers to the legal rights which result from intellectual
creations in the industrial, scientific, literary and artistic fields. 1 Intellectual property comprises
creations that result from the mind, the human intellect.2

The Convention Establishing the World Intellectual Property Organisation (WIPO), concluded in
Stockholm on 14 July 1967, defines intellectual property to include rights relating to: literary,
artistic and scientific works, performances of performing artists, phonograms and broadcasts,
inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks,
service marks and commercial names and designations, protection against unfair competition; and all
other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.3

The clothes we wear, the breakfast we eat, the newspapers which we read, the news transmitted
via satellite on our television, the car and music on the radio as we commute to work, the
correspondences, research materials we come into contact with or refer to in the course of our

1
James Boyle & Jennifer Jenkins. Intellectual property law & the information Society. (Durham, NC, August
2014) p.1
2
Ibid p.1
3
The WIPO Convention, 1967.

1
study or work, the computers, phones and the very office building or library in which we spend
most of our time, are all products of intellectual property.4

2.2. INTERNATIONALISATION

Internationalization is simply the process or an act that makes something of international

concern.5 It is simply to make something become international, as opposed to national. 6 In other
words, internationalization is the making, or designing of a product or goods in such a way that it
will meet the needs of users in many countries or can easily be changed, or adapted to do so. 7
Take for instance, in the realm of economics, internationalization may entail a company that
takes steps further to increase its footprint or client base outside of its country of domicile
(origin) and into international markets. Worth noting is the fact that the global corporate trend
toward internationalisation has helped push the world economy into a state of globalization,
where economies all over the globe are highly interconnected due to cross-border commerce. As
a result, polities are hugely impacted by each other’s activities and economic well-being.8

With reference to the internationalisation of intellectual property rights, it simply entails that
intellectual property rights will be looked at as a global phenomenon or occurrence. For instance,
if an individual patents his creation or innovation in the United States of America, it will be as
though the inventor of such a piece of work had patented it in Zambia. That in turn means that no
one in the whole world will be allowed to use such an invention, until the expiry of a stipulated
Twenty years (20 years) lapses as provided for by the Agreement on Trade-Related Aspects of
Intellectual Property Rights (Hereinafter referred to as the TRIPS agreement).9

3. FACTORS THAT INFLUENCED THE INTERNTIONALIZATION OF

INTELLECTUAL PROPERTY RIGHTS
There are a number of factors that influenced the internationalisation of intellectual property
right, but for the purpose of this, only five will be discussed. First, the resolving of intellectual
4
George M. Kanja. Intellectual Property law. (UNZA Press, 2006).
5
Retrieved from https://www.dictionary.com/browse/internationalisation >Accessed on the 31st of March, 2019.
6
Retrieved from https://dictionary.cambridge.org/dictionary/english/internationalize >Accessed on the 31st of
March, 2019.
7
Retrieved from https://www.investopedia.com/terms/i/internationalization.asp >Accessed on the 31st of March,
2019.
8
Ibid
9
Article 33 of the Agreement on Trade-Related Aspects of Intellectual Property Rights.

2
property disputes between nations or corporations from different jurisdiction proved to be
difficult as there was no international standard (international law) for the protection and
enforcement of intellectual Property rights. As such, developed nations imposed very hash or
unfair trade sanctions on the least developed countries that did not have intellectual property
rights protection equal to that in developed countries. Take for instance, there was a
misunderstanding between the US and Brazil. It begun when the research-based pharmaceutical
industry in the US, represented by the Pharmaceutical Manufacturers of America (PMA), filed a
petition complaining that Brazil’s patent law did not provide protection for pharmaceutical
products and processes. In July 1988, an investigation against Brazil was initiated and
consultations between the two governments did not produce any favorable outcome for the US.
Later, the US decided in October 1988 to use Special 301 to impose a 100 per cent ad valorem
tariff increase, which was in their patent law on selected Brazilian goods including some
pharmaceutical products, and there was little that Brazil could do.10

As such, once an international standard was set under the TRIPS Agreement, the playing field
was leveled as all member states were subject to the same Intellectual property dispute resolution
mechanisms. For instance, the current TRIPS agreement includes a dispute resolution
mechanism that includes compulsory third-party arbitration, final rulings, and enforcement
procedures.11

Secondly, to developed countries, intellectual property rights are a key to economic growth,
whose existence and enforcement leads to incentives to create more output. 12 Nations realized
that the internationalisation of intellectual property rights would improve countries’ national
income and welfare through trade. This is because intellectual property rights owners are
allowed, regardless of their nationality, to be the sole exporters of their products to other member
countries. As such, it was thought that internationalization of intellectual property rights would
allow people to take credit for their work. Differently put, it would be illegal for domestic firms

10
Meir Perez Pugatch, International Political Economy of Intellectual Property Rights: the TRIPs Agreement and
the Advanced Pharmaceutical Industry in Europe Submitted for the Degree of Doctor of Philosophy (University of
London June 2002) 253.
11
Dirk De Bièvre and Lars Thomann, Forum Shopping in the Global Intellectual Property Rights Regime (2010)
132 Arbeitspapiere-working papers, 25.
12
Sorin G. Zaharia, Review of Intellectual Property and Human Development: Current Trends and Future Scenarios
by Tzen Wong and Graham Dutfield (Eds.), (2014) 32 Berkeley J. Int'l Law, 505.

3
to manufacture or even sell the patented drug without the permission of the foreign patenting
firm. 13

Thirdly, there was a need to create technology transfer system for the developing countries and
the least developed countries. Such an objective could only be achieved by internationalizing the
protection and enforcement of intellectual property rights. Once there was protection and
enforcement of intellectual property rights in the developing countries, it would allow
corporations and companies to willingly invest in those countries. The investment will in turn
necessitate the transfer of technology and research information to such an area where there is
protection thus facilitate the transfer of technology from developed countries to least developed
countries. To further enable this WIPO created the Patent Cooperation Treaty (PCT) which has
successfully generated revenues for WIPO.14

Fourthly, the idea of internationalization intellectual property rights protection was motivated in
order to ensure that content-creators continue to devote their time, effort, and labor to creating
new content and ideas whether such content is scientific, artistic or something else. International
intellectual Property Rights protection helps ensure that creators have a sufficient incentive for
intellectual activity that results in intellectual content because it affords authors the right to
condition access and use of content as they please. Without such an incentive, creators of
intellectual property would not be able to devote time to develop new ideas, as such there would
only be a small amount of artistic and technological products and development. 15 By giving the
creator property rights and thus allowing them to “fence off” their intellectual property for a
limited period of time, the assured exclusivity and potential financial benefits are strong
incentives for innovation, and societal benefit and public welfare will be maximized in due
time.16

13
Meir Perez Pugatch, International Political Economy of Intellectual Property Rights: the TRIPs Agreement and
the Advanced Pharmaceutical Industry in Europe Submitted for the Degree of Doctor of Philosophy (University of
London June 2002) 31.
14
Debora J Halbert, The World Intellectual Property Organization: changing narrative on intellectual property
(University of Bath 2006), 22.
15
Kenneth E Himmna, The Justification of Intellectual Property: Contemporary Philosophical Disputes (Seattle
Pacific University),
16
Sorin G. Zaharia, Review of Intellectual Property and Human Development: Current Trends and Future Scenarios
by Tzen Wong and Graham Dutfield (Eds.), (2014) 32 Berkeley J. Int'l Law, 503.

4
Lastly, Individuals that come up with intellectual Property invests something into that creation of
the art and thus have an interest that should, as a matter of justice or fairness, be protected by
law. They bring new value into the world that was not available prior to their sacrifice or
expenditure of their labor. As such, authors are responsible for the creation of this value, it
would be unfair to them not to allow them to define the terms upon which others may take
advantage of this value that they have created through their sacrifice. 17 Therefore, nations and
people who developed copyright and patent sought to create an international mechanism that
would protect what they considered to be their property at the global level thereby bringing the
idea that intellectual property rights should be protected globally in order to protect their
investments and sacrifices.18

As such, big corporation around the world which had large intellectual property portfolio became
worried that they were going to make losses in investments they made due to levels of protection
and enforcement of intellectual property rights in developing countries. In these polities, piracy
of their products was high, hence the need for universal standard of protecting and enforcing
intellectual property rights. This was something that could only be prevented by
internationalizing the standards at which intellectual property rights were to be observed and
respected thus pushing of the agenda to internationalize intellectual property rights. Therefore,
once intellectual property rights was protected internationally, corporations that have invested in
intellectual property rights could fully realize their investment thus making the full profits
expected.19

4. IMPLICATIONS OF PROTECTING AND ENFORCING OF INTELLECTUAL

PROPERTY RIGHTS IN AFRICAN LEAST DEVELOPED COUNTRIES (LDC).

In this case, the implications simply refer to the effect that the internationalization of intellectual
property rights will have on the least developed countries, with regard to their enforcement and
protection. To begin with, in the least developed nations, such as Zambia, there is an attempt to
harmonize the national standards for intellectual property protection with the international norm

17
Kenneth E Himmna, The Justification of Intellectual Property: Contemporary Philosophical Disputes (Seattle
Pacific University), 18.
18
Debora J Halbert, The World Intellectual Property Organization: changing narrative on intellectual property
(University of Bath 2006), 45
19
Peter Drahos, "Global property rights in information: story of TRIPS and GATTS" (June, 2008) Promethus 4.

5
as set under the TRIPS Agreement. In other words, it needs compliance with the substantive
provisions of existing international intellectual property treaties, specifies categories of
intellectual property that are subject to international standards, and mandates both national
treatment and most favored nation treatment. 20 It must be noted that the internationalization of
intellectual property rights has both negative and positive effects on the protection and
enforcement of intellectual property rights in the least developed nations.

The positive effects of the internationalization of intellectual property rights may include, first,
when an innovation is patented for instance, the public has access to the information about the
patented subject matter. After the protection period has expired, anyone is at liberty to
manufacture or use that particular innovation without any restrictions. 21 As earlier stated, most
inventions come from developed countries, and when they can no longer be protected upon the
expiry of the 20 years it will work to the advantage of the least developed countries as they will
be free to utilise those inventions. This will lead to development.

Secondly, the state thus provides for rights to enable innovators to recoup investments made in
research and development and to help researchers to access disclosed information for furthering
the technological development process. In developing countries, limited technological
capabilities affect the relationship between intellectual property rights and innovation.

Lastly, the TRIPS Agreement advocates for the transfer of technology from the developed
countries as an alternative source so that the least developed countries may benefit from
intellectual property rights as a net importer of technology. Technology transfer is a process by
which commercial technology is disseminated from one industry to another, and/or among
different economies.22

The negative effects of the internationalization of intellectual property rights include, first, the
fact that most economies of least developed countries lack skilled human technical base and the
technology infrastructure base to effectively compete with foreign multinational corporations in
the research, development, and production of goods that are critical to the health, welfare, and
progress of their citizens. Enforcing high levels of protection of the intellectual property rights of
20
ibid
21
Retrieved from https://www.wipo.int/patents/en/faq_patents.html >Accessed on 6th April, 2019.
22
Retrieved from https://www.uclb.com/for-researchers/what-is-technology-transfer/ >Accessed on 6th April, 2019.

6
foreign corporations exacerbate this problem by directly causing important goods to be
financially inaccessible to citizens of least developed countries. Therefore, LDC will not have
access to important goods and services that can facilitate economic growth leaving them poorer
than ever before and more dependent on developed countries to assist them with issues of
economic growth and wellbeing of the general community.23

Secondly, internationalizing intellectual property rights protection and enforcement acts as an

obstacle to developing countries’ ability to protect public interest. In a situation where
intellectual property rights are secured, the power to set and control the prices of intellectual
property falls solely in the will of the owner of such rights who decides what to charge for them.
As a result, this has great effect on prices of pharmaceuticals reason being the majority
pharmaceutical companies are based in developed countries and hence charge equal prices as in
their countries thereby making it difficult for developing countries to achieve their public interest
of avoiding to pay high prices for drugs.24

Thirdly, some instruments that provide international protection of intellectual property rights
have been unfavorable in protecting developing countries’ “rights”. For instance, Article 27. 3(b)
of the TRIPS agreement oblige member states to provide protection for plant varieties.
Undoubtedly, ‘most biodiversity is found in developing countries, but the developed countries
have sophisticated technologies such as generic engineering to extract value from biodiversity.
This would mean that major transnational corporations can take genes from the fields or coastal
waters of poor countries and manipulate them in their labs back home and patent them, at the
cost of the poor countries.25

Fourthly, the TRIPS agreement by internationalising patent rights law assumes that all states are
at the same technological development level. In reality, developed countries are the net exporters
of technology and it is mostly then that come up with innovations and invention. Thus, by
internationally protecting such, the developing countries are barred from using the innovations
and, this hinders the development of the already underdeveloped nations.

23
Peter K Yu, TRIPS and its discontent (2005) 10 Marquette Intellectual Property Law Review, 370.
24
Jacylyn Shi, TRIPs and Development – A Dilemma Facing International Trade Law (Carleton University 2004),
9.
25
Jacylyn Shi, TRIPs and Development – A Dilemma Facing International Trade Law (Carleton University 2004),
11.

7
Lastly, the globalization of intellectual property laws mean that, for example the law of patents
in Zambia and India are now creating unjustifiable monopolies to companies, which often can be
abused, especially where the patentee prevents or deters potential competitors from developing
products similar to his own or threaten them with legal action. This leads to increase in the prices
of essential goods, such as pharmaceuticals, making them unobtainable by the poor population in
these countries.

5. CONCLUSION

In conclusion, the essay has discussed the factors that influenced the ‘internationalization’ of
intellectual property rights and the implications, with regards the protection and enforcement of
intellectual property rights for African Least Developed Countries (LDCs) such as Zambia. It
recognised some factors that led to the internationalisation of intellectual property rights such as
the difficulty that was seen in the resolving of international disputes concerning intellectual
property rights, and, the need to create technology transfer system for the developing countries
and the least developed countries. It further recognised the positive and negative implications
that such internationalization of intellectual property rights has on the least developed nations. In
the end it would appear that the internationalization of intellectual property rights has more
positives than negatives as the least developed nations are more than benefiting from the move.