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A Pragmatic Approach to Intellectual Property and Development: a Case Study of the Jordanian Copyright Law in the Internet Age Loyola of Los Angeles International and Comparative Law Review Volume 35 Number 2 Spring 2013 Article 2 Spring 2013 A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age Rami Olwan LLB, Yarmouk University, Jordan; LLM, Buckingham University, United Kingdom; LLM, Columbia University, New York, United States; PhD, Queensland University of Technology (QUT), Brisbane, Australia Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons Recommended Citation Rami Olwan, A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age, 35 Loy. L.A. Int'l & Comp. L. Rev. 209 (2013). Available at: https://digitalcommons.lmu.edu/ilr/vol35/iss2/2 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. A Pragmatic Approach to Intellectual Property and Development: A Case Study of the Jordanian Copyright Law in the Internet Age * RAMI OLWAN “For too long IPRs have been regarded as food for the rich countries and poison for poor countries . [I]t is not as simple as that. Poor countries may find them useful provided they are accommodated to suit local palates.”1 I. INTRODUCTION Since 2004, the World Intellectual Property Organization (WIPO) Development Agenda has expressed renewed interest in the role of intellectual property (IP) in development.2 While “development” is a term whose meaning is contested by scholars, organizations, and development experts throughout the world, it is generally understood to mean improving the lives of people socially and economically.3 The value of an IP system to a developing country (or, for that matter, a developed country) is the subject of increasing debate. On one side, IP evangelists argue that IP laws can stimulate untold * LLB, Yarmouk University, Jordan; LLM, Buckingham University, United Kingdom; LLM, Columbia University, New York, United States; PhD, Queensland University of Technology (QUT)), Brisbane, Australia. 1. John Barton et al., Comm’n on Intellectual Prop. Rights, Integrating Intellectual Property Rights and Development Policy, (2002), available at http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf. 2. In 2004, Brazil and Argentina presented a comprehensive proposal on behalf of developing countries to establish the Development Agenda in the WIPO. They put forward a view that IP laws in their current form are not helping those countries in their development, as is constantly being suggested by developed countries, and that there is a need to rethink the international IP system and the work of the WIPO. World Intell. Prop. Org. [WIPO], Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO, WIPO Doc. WO/GA/31/11 Add. (Oct. 4, 2004), available at http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_31/wo_ga_31_11_add.pdf. 3. There is no single international definition of what is meant by the term “developing countries.” United Nations organizations divide developing countries into several groups of countries based on their income, education, healthcare, and life expectancy. The following criteria have been used to determine if a country is a developing country: small gross national product (GNP) relative to the major players in the trade arena; limited domestic resources; concentrated exports in terms of products and trading partners; high average trade barriers; and economic and political dependence on industrial countries. Henrik Horn, Petros C. Mavroidis, Remedies in the WTO Dispute Settlement System and Developing Countries Interests (1999), available at http://www.econ-law.se/Papers/Remedies%20990611-1.pdf. 209 210 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 35:209 innovation and provide a foundation for economic progress. On the other side, IP skeptics or abolitionists question whether IP laws truly incentivize innovation or simply represent a burden on social and economic development. Too often, an uninformed adoption of international IP systems is seen as a “shortcut” to development. For development to be more effective, developing countries need to understand the role of IP and how to shape their IP laws according to their best interests.4 Although there have been several studies related to IP and development that call for IP laws in developing countries to be development-friendly, there is little research that attempts to provide developing countries with practical measures to achieve that goal.5 This article takes the Copyright Law of 1992 (as amended) in Jordan as a case study and provides specific recommendations for developing countries to ensure that their IP laws are aligned with and serve their social and economic development objectives. II. CONTEXT: WHY LOOK AT JORDAN? Jordan is a country with limited oil resources. It is more similar to most developing countries than it is to its oil-rich neighbours, Saudi Arabia and Iraq. Although developing countries lack significant resource endowments, countries vary in their concerns and needs, and they all aspire to social and economic development. They aim to be as innovative as possible in their approach to development and to do what is necessary to face impediments to development and move forward despite limited resources. Jordan is a good example of a developing country that is using its people to make necessary changes for social and economic development, in spite of its limited oil resources, Jordan considers its people to be the heart of its development and its future strength. The country has adopted a human-centered approach to development that enhances its people’s prospects within social, economic, and cultural spheres.6 Like many developing countries, Jordan recognizes the importance of trade and investment to its economic future and has 4. Rami M. Olwan, INTELLECTUAL PROPERTY AND DEVELOPMENT: THEORY AND PRACTICE (2012). 5. See, e.g., Peter K. Yu, TRIPS and Its Discontents, 10 MARQ. INTELL. PROP. L. REV. 369, 383 (2006), available at http://law.marquette.edu/ip/Yu.pdf; Joseph E. Stiglitz, Keynote Address at the Ministerial Conference on Intellectual Property for Least Developed Countries World Intellectual Property Organization (WIPO): Toward a Pro-Development and Balanced Intellectual Property Regime (Oct. 25, 2004), available at http://www2.gsb.columbia.edu/faculty/jstiglitz/download/2004_TOWARDS_A_PRO_DEVEL OPMENT.htm. 6. THE JORDANIAN HASHEMITE FUND FOR HUMAN DEVELOPMENT ET AL., JORDAN HUMAN DEVELOPMENT REPORT 2004: BUILDING SUSTAINABLE LIVELIHOODS xiii (2004), available at http://hdr.undp.org/en/reports/national/arabstates/jordan/jordan_2004_en.pdf. 2013] Jordanian Copyright Law in the Internet Age 211 embarked upon major economic reforms to make it a more attractive environment for Foreign Direct Investment (FDI). Jordan signed an Association Agreement with the European Union (EU) on November 24, 1997; became a member of the World Trade Organization (WTO) on April 11, 2000;7 and on October 24, 2000, became the second Middle Eastern country (after Israel) to sign an Free Trade Agreement (FTA) with the U.S. It has also entered into FTAs with other countries, including Canada, Singapore, Malaysia, and Turkey.8 Jordan upholds a high level of IP protection, which is similar to the IP systems available in developed countries. After joining the WTO, Jordan had to restructure its IP legal system to conform to international standards. Jordan introduced new IP laws and joined major IP treaties, including the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and the WIPO Performance and Phonograms Treaty (WPPT), in the hope that this would boost development and innovation in the country. Despite these major economic and legal changes, there are concerns that there has been little change in the country and its social and economic development. III. THE CORRELATION BETWEEN INTELLECTUAL PROPERTY AND DEVELOPMENT The development of IP systems is imperative for developing countries; nevertheless, these systems will not bring social and economic development without the support of proper development policies.9 In pursuing economic development, developing countries must ensure the presence of a range of institutions and infrastructures, including efficient and effective governments, coherent economic policies, political stability, qualified human capital, technical 10 infrastructure, rule of law, and an effective judiciary. 7. Jordan and the WTO, WORLD TRADE ORG., http://www.wto.org/english/thewto_e/countries_e/jordan_e.htm (last visited Mar. 21, 2012) 8. MINISTRY OF INDUSTRY & TRADE, THE HASHEMITE KINGDOM OF JORDAN, http://www.mit.gov.jo/tabid/36/default.aspx (last visited Mar. 21, 2012). 9. Scholars working in the field of IP have different views on IP effects on development. Some agree that development could be achieved through the introduction of IP systems in developing countries whilst others are doubtful whether such systems would be sufficient to support development. Ruth L. Gana, Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property, 24 DENV. J. INT'L L. & POL’Y 109, 111 (1995); Margaret
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