The Myth of Development, The Progress of Rights: Human Rights to Intellectual Property and Development

Authors

  • RUTH L. GANA

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      **University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019-0701. Telephone: (405) 325–4699; fax (405) 325–6282; e-mail: rgana@hamilton.law.uoknor.edu.
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    • ***RUTH LADE GANA is an Associate Professor of Law at the University of Oklahoma College of Law. She received her LL.B from the University of Jos (1989), her LL.M. (1991) andSJ.D. (1996) from Harvard Law School. In 1993, Professor Gana served as a consultant to the Copyright Department of the World Intellectual Property Organization in Geneva, Switzerland. In 1995, she was a visiting Research Fellow at the Max Planck Institute for Foreign and International Patent, Copyright and Competition Law in Munich, Germany, where the initial research for this article began.


  • *This article is dedicated to my father, Professor Aaron T. Gana, for his many sacrifices to ensure that the struggle for justice, rights, and responsibility in African countries and in black communities all over the world takes place with integrity, passion, and a vigilant commitment to the rule of law. I am thankful to Professor Leroy Vail, who continues to teach me about Africa's potential and who refuses to give up hope for its development. Finally, I am thankful to Kevin Wisner and Aleatra Williams for research assistance and to the University of Oklahoma College of Law for a summer research grant which enabled me to attend the 1995 Law and Society Annual Conference.

**University of Oklahoma, College of Law, 300 Timberdell Road, Norman, OK 73019-0701. Telephone: (405) 325–4699; fax (405) 325–6282; e-mail: rgana@hamilton.law.uoknor.edu.

Abstract

Of all the various programs and policies formulated in an attempt to find a quick route to modernization, none has been as detrimental to the development process in Africa as technology transfer from developed countries. The process of technology transfer was facilitated by the international intellectual property system which enabled owners of intellectual goods in developed countries to control access by developing countries to technology while also exacting from these countries huge transaction costs and licensing fees. African countries, as other developing countries, participated in the international intellectual property system in part because indigenous innovation and economic growth were promised fruits of intellectual property protection as evidenced by the experience of the Western Hemisphere. The recognition of intellectual property rights by the Universal Declaration of Human Rights gave legitimacy to the efforts of developed countries and international institutions to encourage developing countries to recognize intellectual property rights and to join the international intellectual property system. However, after more than three decades of experimenting with Western-styled intellectual property laws and an inordinate emphasis on technology from developed countries as an agent of development, African countries remain mired in the trenches of underdevelopment. This article looks at the failed promise of intellectual property systems in developing countries in general, with Africa as its specific concern. The author argues that the human right to intellectual property must be understood in context with the right to development and self-determination. Such an approach would delegitimize the myth of a universally valid intellectual property system and protect the right of developing countries to establish intellectual property regimes that reflect their unique socioeconomic and cultural norms and that are consistent with development objectives. Nevertheless, the author insists that nothing short of a comprehensive economic and social reform package nurtured and implemented in a politically stable environment under the rule of law will release Africa's potential for development.

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