Ecuador: repealing its IP law for a code of social economy

Ecuador is fully engaging in its debate over the proposed ‘Código Orgánico de Economía Social del Conocimiento, la Creatividad y la Innovación (Organic Code of Social Economy of Knowledge, Creativity and Innovation) -- known as ‘Codigo Ingenios’ (Intellects Code).

The bill went to the Ecuadorian Assembly back in June 2015 as an initiative of the Ministry of Higher Education, Science and Technology (Senescyt ) supported and drafted with the help of different sectors including the Ecuadorian Intellectual Property Office (IEPI). The current Intellectual Property Law will be repealed when the new bill is approved. The proposed code comprises four books and over 500 articles. According to the newspaper ‘El Comercio’, its strengths are in intellectual property, access to the Internet and protection of ancestral knowledge.

Several conferences inviting students from different Universities, the legal profession, the civil society and civil servants are taken place. Moreover, the IEPI promotes the code as aiming to move “from a primary export economy to a social economy of infinite resources” and thus, noting the need to protect “the Ecuadorian knowledge and human talent”. The aims are on 11 principles: “right to share knowledge, economic incentives to encourage innovation, cheaper drugs, boost domestic inventions, internet as a basic service, support and enhancement of research, long life technology, promotion of free software, combat biopiracy, profitable mining, and the right to traditional knowledge that belong to indigenous peoples and nationals.”

According to IEPI’s director, the bill targets knowledge and entrepreneurship, but ensuring the protection of the creators’ rights. You may ask: isn’t this the purpose of their own current IP legislation? It appears that it does not. In the words of Senescyt’s secretary, the current IP “law has failed, because it is excessively private and excessively commercial and has produced nothing of innovation" [has there been any national investment on research --you will reap if you have sown, right?]. He continues saying that the code will guarantee all IPRs in all lucrative activities in academia or research and help to circulate their works and products, which I do concur. But, I am afraid I cannot see how the present IP legislation does not already protect these.

There are two other matters that I would like to address. It is asserted that the change of law is needed and that there is a need to have this code on social economy. I do wonder: is IP and IP law a legislation for social economy? The propanga surrounding the Code re-emphasizes that the current IP law only protect the rich, transnational companies, big pharmaceutical companies, foreigners and does nothing for ‘the people’ (referring to those of not enough resources). I am afraid IP protects inventions, creation, works of art, brands, regardless of nationality or wealth. In practice, it is true that in developing countries and less developed ones the majority of patents would be granted to foreigners, but this is not because there is something wrong with the law. It is because the world's most innovative countries are high-income countries (full stop - see INSEAD's report and also WIPO’s latest report which explores the role of IP at the link between innovation and economic growth). Would it be ok to say that the propaganda appears to be more political sided?

There are two issues that also capture my attention in this ‘advertisement’ of principles 1) right to traditional knowledge (TK) and combat bio-piracy and 2) cheaper drugs.
1) Ecuador legislation protects TK and genetic resources. Ecuador is part of the Andean Community of Nations (CAN), and it has one common IP system through CAN Decision 486 - a supranational law. In this regards:
a) PATENT: when a product or process is obtained or developed using TK of indigenous, African American or local communities, protection is only granted if the applicant has a certificate, or license or authorization from the originating source (CAN Decision 391).
b) Trade Marks: applications that contain the name of indigenous, African American, or local communities, are not allowed.

2) Cheap Medicines
a) In 2009 Ecuador amended its IP law to use the TRIPS flexibility (Doha Declaration) in favour of developing countries i.e. compulsory licensing. At the end of 2014 the IEPI had received 32 applications for compulsory patent licenses- some were refused or abandoned, but nine were granted.
b) Decision 486: second use patents known as the ‘Swiss formula’ are not allowed.

In the last five years some Latin American countries like Brazil, Mexico and Chile, have more than doubled its international patents but this is seen because governments and organizations invests in projects. In Colombia we see a ‘National Innovation Strategy’ by the Director of the National Planning Department. In 2013 Medellin won against New York and Tel Aviv, the most innovative city title. In Brazil there is also a Science & Technology Action Plan giving incentives to bio-tech patents. It also looks deeper into what they call ‘critical mass’ population studying masters and PhDs, how can they help to increase these. Chile is examining a Bill to amend its Constitution i.e. art.19 to: (1) assert ownership over the country's genetic resources; (2) protect against the unauthorized use of these resources or the traditional knowledge (TK) of indigenous communities; and (3) promote the fair and equitable sharing of the benefits derived from the exploitation of these resources or TK. Peru has a National Anti-bio-piracy Commission. In all these countries the message is clear, innovation may attract (foreign) investments in the form of trade and/or R&D, but if the country does nothing to promote and to launch programs to help its people to innovate, legislation alone does nothing.

We also see projects in the sector of trade marks, collective and certification marks and GIs. Colombia has a running project through the ‘Intellectual Property and Crafts’ which supports the artisans in the legal process together with ‘Artesanias de Colombia’; Chile has another one called ‘Sello de Origen’ (Label of Origin) developed by the Ministry of Economy together with the IP national office (INAPI). All of these projects are helping the communities and sectors with are rich in knowledge but may not have the tools (economic and legal advice) and/or do not know what exist or is available for them to protect their IPRs.

Is it me, or is a tendency for Latin American Governments of the left wing to always accuse the develop world? 

The idea of Ecuador enhancing national products and knowledge is to be applauded and focus ought to be on what they can do to improve. We (Latinos) need to find a way to promote and protect agriculture, biodiversity, science, and also culture.  The Government ought to work on how to provide conditions that stimulate innovation, needs to provide supportive institutions, incentive tertiary education and fund research.

Will Ecuador find this by repealing the current IP law? At the moment there are a few projects that help to promote and protect national knowledge e.g. the Ecuadorian Resolution No 004-2015 CD-IEPI which grants full discount on charges related to requests to register, record or assign rights related to GIs-- free until December 31, 2017. This week, we hear from the Ecuadorian Institute for the Promotion of Exports and Imports (Pro Ecuador )good stories of their campaign which promotes the inclusion of local brands abroad.

The proposed Code will provide investment for creations, promising 0.57% of gross domestic product  but, is there a need to repeal its IP law for this? There has been so much time and investment in this 'code' that expectations are getting higher by the minute. We now need to wait and see.