US Patent and Trademark Office keen to help Guyana with Intellectual Property; Guyana’s outdated IP laws disincentivise investments

Last Updated on Sunday, 7 April 2024, 15:53 by Denis Chabrol

The United States Patent and Trademark Office (USPTO) is ready to assist a broad cross section of Guyanese understand the various aspects of Intellectual Property (IP) protection, amid observations that local IP laws are outdated.

“Unfortunately, like everything else, laws tend to lag at issues and one of the areas in which the law is lagging is in terms of intellectual property rights and how we deal with that,” Dean of the University of Guyana’s School of Entrepreneurship and Business Innovation, Professor Leyland Lucas said despite the oil-driven explosion in economic activity as a result of the rapidly emerging oil sector.

Dr Lucas said the state of Guyana’s IP legislation was tied up in the country’s mentality of a “hustle” and “the notion that everything is free”. He recalled hearing misperceptions about IP such as a  country’s economic status justifies violations, high cost to reproduce legally text books and other materials, apparent secret breaches and lengthy court cases. “Like it or not, violations are unacceptable,” he said. Examples of copyright violations in Guyana, he said, are the transmission and reception of movies and sport content and unauthorised exchange of information coupled with people’s lack of awareness about the value of their own intellectual property.

Chief Executive Office of Brain Street Group, Lance Hinds related a personal experience in which the Australian government had opted not to fund a multi-country project just before the signing of the agreement “because Guyana is marked as a country in violation.” In other instances, he said specialised offshore work was not being given to entities in Guyana because they do not believe that data brought here would be protected. He recommended that the law be strengthened. “A lot of it is to ensure that, as a first order of business, the legislation is updated  and to being compliant especially when it comes to the knowledge-driven industries because certainly those companies abroad are taking this seriously and they don’t trust you to protect the data,” he said.  He also cited the need for a “thoughtful happy balance” in the legislation to protect IP and build the intellectual asset.

Mr Hinds challenged UG’s Department of Law to examine Guyana’s current IP laws and match them with those from Jamaica, and Trinidad and Tobago to “see what the gaps are” as a form of guidance.

UG Law Professor, Retired Justice Courtney Abel said the issue of compliance is not about the enactment of laws but about changing the “lawlessness” culture backed by a rigid system of enforcement.  “Enforcement is about law and the question is, again, how do we create a system and we have to do it rapidly where enforcement works and people fear enforcement, if you like  and it might help compliance,” he said.

UG Law Professor, Retired Justice Kenneth Benjamin recommended sensitising people about their IP rights if there is a mechanism in the law for enforcement. In that regard, he said steps must be taken to move away from the “borrowed legislation” and craft laws that are suited to Guyana. “We need to look at the legislation again and see whether we can make it into what we want it to be to suit our needs. We are behind the eight ball. Our economy is growing so fast that we really are playing catch-up,” he said. Guyana’s Intellectual Property laws are the 1956 Copyright Act, 1952 Trade Marks Act and the 1937 Patents and Designs Act.

Mr Benjamin said while UG’s Law Department offers a course in Intellectual Property but “it is not” heavily subscribed which shows people do not see it as important. He said it was pointless to encourage people to engage in cultural development such as writing and performance but in the end the original innovator does not get the benefit.

Ms Maria Beatriz Dellore, Regional Intellectual Property Advisor for Mercosur, French Guiana, Guyana, and Suriname said the USPTO’s Brazil office was ready to help local communities understand what is IP and how it could foster development and a better environment for “us all.”

“We are available to provide any sort of support as capacity building, technical exchange, public awareness… and we are available that you might consider valuable on the IP sphere,” she told a forum to mark World Intellectual Property Day 2024 that would be observed on April 26, 2024  under the theme: “IP and Sustainability Goals- Building Our Current Future with Innovation and Creativity”. The USPTO office, she indicated, was already in contact with local authorities, associations and UG.

At a separate engagement with the visiting USPTO officials, Attorney General Anil Nandlall said in a statement that “The USPTO offered to provide assistance necessary to enhance the local Intellectual Property landscape in Guyana, in an effort to enhance the ease of access of dealing with Intellectual Property transactions.” The statement from his Chambers said he emphasised that “the Government of Guyana will chart the direction in which these reforms will unfold with priority being given to CARICOM model type legislation. All assistance offered, especially in the form of training and capacity building will be welcomed by Guyana.” Mr Nandlall reportedly updated them on the wide-ranging statutory and other legal reforms taking place in Guyana. He highlighted modernisation of the commercial architecture as a priority, noting that Patents, Trademarks and Intellectual Property are among the areas for review.

Vice Chancellor Professor Paloma Mohamed-Martin said that the discussion at UG was held to put the decades-old issue of IP protection “back on the front burner again.” That publicly-owned institution plans to offer a certificate in IP as well as “bigger” programmes on the subject.

Briefing participants about patents, trademarks and copyright, Ms  Dellore noted hinted that Guyana should consider broadening what could be trademark protected. “In Guyana, the information that I have is that at this point, you can only register trademarks for goods  so this is something for you to consider when developing your strategy,” she said. Listed as examples of trademarks that can be registered in te US include a word, name, symbol, slogan, colours, smell, touch, and movement. “Marketing folks in the US are very free to develop any sort of device that can identify goods or services. Depending on the country, the list may be more restrictive, more expanded ,”  the USPTO Regional Intellectual Property Advisor said.

In the US, she said trademarks are valid for 10 years from the granting date and could be extended forever by way of rights renewal.

Mr David Kellis, USPTO’s Regional Intellectual Property Attaché for Mercosur, French Guiana, Guyana, and Suriname said IP could help crackdown on counterfeit and unsafe goods and boost jobs and the quality of exports. “The basic message here is that intellectual property, intensive industries, industries that rely on intellectual property bring tremendous economic value to a country,” he said. The USPTO official cited Ethiopia where trademarked coffee had doubled income, increased employment, increased import revenue, increased taxes, more Foreign Direct Investment and overall economic growth. Countries that want to attract Research and Development, he said, needed to put in place a regime for the protection of trade secrets, copyrights, trademarks and patents. “If a country has a strong intellectual property environment, then the companies in that country are more likely to receive investment,” Mr Kellis added.

In the US, patents provide protection for 20 years after which it is available for public use. Ms Dellore noted that patenting is a good way to attract investors as it provides exclusive right and the possibility of earning from royalties, sale or transfer. “The market will look at you with a different eye,” she said.  Copyrighted materials are valid up to 70 years after the death of the author

The UG Vice Chancellor said that tertiary institution had already taken steps to protect the works of students and staff, even scaling them for piloting and registration. The institution’s Institute of Research, Innovation and Entrepreneurship,  Faculty of Education and Humanities and the Library are involved in IP property that belongs to students and staff.  “All of your work , all of your research has a value that could be monetized,” she said. She added that UG prohibits plagiarism and recently developed an Artificial Intelligence (AI) policy, believed to be the first in the Caribbean.

The People’s Progressive Party Civic administration had showed marked reluctance to modernise Guyana IP legislation, even awarding a contract to a local firm to reproduce original textbooks for distribution to schools. That contract was scrapped only after the United Kingdom Publishers Association had obtained a High Court injunction.

In 2018, then Opposition Leader Bharrat Jagdeo had said he did not support modernising Guyana’s copyright legislation. “We are a poor developing country. Wait until such time in the future when people can afford to pay for the copyrighted stuff. That is how I see it. It may not sound like the most enlightened position given that you have international treaties and stuff but half of those treaties don’t protect us small countries. They don’t protect our interests,” he had told a news conference. As President, he had held a similar position.