Thursday, 8 December 2016

Latin American Index of Legislative Transparency – is it relevant for IP?

This week the Latin American Index of Legislative Transparency was released. This index “aims to systematise and analyse relevant information about the Legislative Powers”. It promotes “transparency, access to information and accountability in the congresses of the Latin American region.”

The data compares the Congresses or Parliaments of Argentina, Chile, Colombia, Mexico and Peru, establishing therefore a “minimum standard of transparency in the political, administrative and proper work” of these institutions. The index takes the following data: Normative; Legislative work; Budget; and Administrative Management and Citizen Participation and Attention.

Is this relevant to IP and if so how?
IP is regulated by law, therefore we need to look at whether Latin American countries have a satisfactory legislative transparency.
For starts, will an invention/creation be protected as a matter of fact? And if so, do people know what to do to protect their work, where to go? I think that you got the idea by now.

With confidence we can say that in general Latin American legislation fulfil international standards. The majority of them have adapted their national legislation in accordance with TRIPS (WTO) and many other international agreements administered by WIPO. Other countries have taken a step further, for instance there are regional blocs which have harmonised IP law to high standards (e.g. CAN Decision 486) while others even have stricter rules after signing a bilateral agreement.

Image result for hollow man
Transparent OR invisible?
What is worst in the legislative arena?
However, legislation alone does not measure really the transparency or access to information that citizens do have. It is exactly the same as to say that legislation alone does not tell you if there is actually protection. There is a need to do a full study not merely based on laws as written but rather on the ‘before’, in 'between' and ‘after’ the law.

Recently I noted something similar but in regards to IP protection (here) acknowledging that there was the need to observe the World Bank data which provides a variety of measures for a country. The studied that I conducted reflected the very poor state of the selected countries’ regimes (with the exception of Chile) based on the indicators of: Control of Corruption; Government Effectiveness; Regulatory Quality; and Rule of Law.

Having said that, it comes as no surprise to see Chile in second place at the Latin American Index. Mr Del Favero, legislative coordinator at the Fundación Ciudadano Inteligente, a representative of the Latin American Transparency Legislative Network, stressed the rationale and outcome of the index. It observed that it allows to compare “how the policies of transparency and participation in the Congresses of the continent are developed, with the idea of promoting its consolidation and, thus, democracy.” However, Mr Del Favero also noted that there were certain issues that can make the Chilean level index to improve  - for instance, in relation to “generating independent control bodies within the Congress that can watch how the legislative activity is developed”.

The index reveals a regional average of 50% and Chile obtained 64% taking Costa Rica to the first place with an index of 72%.

I finish then with a speech given by Michelle K. Lee , the 2014 Deputy Director Under Secretary of Commerce for IP and USPTO: “transparency in an open, democratic, and innovation-oriented society is a good thing.”

Source Camara de Diputados de Chile.
The full index can be found here.

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