By Maysan Alobaid
This blog post was submitted as a contribution to the Tabula project, an international and comparative research collaboration carried out over the summer of 2021.
As the Middle East and North Africa (MENA) region has become one of the youngest regions in the world, and as the area has developed greater economic awareness, it has become important to consider a stricter protection of human creativity there. An understanding of the region and its complex background allows for a deeper look into the progress made in the protections for creative works along with the obstacles they face in the current climate.
Intellectual property (IP) rights preserve and encourage creative and innovative concepts, with the aim of prizing innovative minds and acknowledging their intellectual endeavors. “Intellectual property” is a broad category that encompasses many forms of intangible creations of an individual or group intellect, with four distinct categories: copyrights, trademarks, patents, and trade secrets. Some countries have awarded more respect and attentiveness to these than others, for reasons that can generally be traced to cultural background and international demand.
In the Arab culture, it is a high compliment to an artist’s work to imitate it; this eliminates the theft aspect of the creative process, and the need for protection is therefore diminished. This is in contrast to the basic principles of Islamic tradition, principles that have shaped the legal framework for many Middle Eastern countries, which have recognized intellectual property concepts. For example, the economic and moral rights of authors have always been protected: creations that take the shape of written interpretation have usually been protected for a period of time after the death of the author—a period that has been established to be sixty years. Copyrights of other local creators often have not been strictly protected, however, because of the belief that artistic creation should be accessible to all, since cultural enrichment and exposure, not money, are thought to be the goals of art. Yet the international copyrights that restrict distribution in certain countries due to either licensing agreements or unauthorized publication are often infringed upon when countries do not provide protections.
On the other hand, trademarks, whether local or international, have always been strictly protected for their undeniable economic value. This makes sense because of how they are entering the market, especially in the Gulf Cooperation Council (GCC) countries. In the GCC countries, laws require that any international business must have a national partner that owns more than 51% of the business to be allowed to practice, resulting in expensive franchise and agency contracts that give great responsibility to the national owner to adhere to the contract rules. Contracts usually include strict clauses that protect trademarks and provide that any infringement upon them would constitute negligence by the national owner, making them alert and protective. Given that great protection is awarded to contracts in GCC countries, many business owners have also included trade secret clauses in their employment contracts, enforcing their protection as contractual responsibilities rather than safeguarding them in a separate code.
Nevertheless, the economic and global reputational value that intellectual property reflects on a country has made complying with international treaties critical. Arabic-speaking countries of the region have set up their own unique mechanisms for dealing with IP protection. Although each country has its own specifications, they all adhere to Islamic teachings; thus, to be eligible for IP protection in the region, a creative creation must comply with Islamic principles. In a trademark registration, for example, logos must follow moral and cultural standards. In the MENA region, most of the advancement in IP protection is seen among the GCC countries for their goal of attracting international investment; the state of civil chaos in other countries in the area have put a pause on some aspects of IP-related regulations there.
The UAE and Saudi Arabia have worked particularly hard to strengthen their IP enforcement agencies. Both countries have delegated the task of establishing regulations, ensuring their execution, and investigating claims of infringement to special, fully independent agencies. But despite its various initiatives to strengthen its IP protection through the Saudi Arabia Intellectual Property Agency (SAIP), established in 2018, Saudi Arabia is still among the nine countries on the US Intellectual Property Protection (IPP) priority list. A paucity of IP governance is a great obstruction to stronger protection. Intellectual property is an intricate area; it includes many aspects scattered among different agencies, and managing them requires great collaboration not only on the national level, but also on the international and regional levels. As such, IP governance that is established through an institution that manages the process of selection and definition of IP standards, directs the decision-making, and oversees the implementation of these standards, providing consultation and accountability, is a critical facet in improving IP regulation. Saudi Arabia, through SAIP, is working toward this goal of robust IP governance.
Patents are an aspect of IP governance that tends to be overlooked. Since the GCC’s establishment, its countries have had a common patent law that creates easier patent registration in all GCC countries once a registration is complete in one of the members’ jurisdictions. Public information access varies among the countries, however, making it difficult to examine the patents landscape in a particular area of interest. A more transparent, updated, interregional database in the GCC Patent Office would help all member countries reach the level of international IP standards.
An important aspect to discuss in the IP protection space is employee-created intellectual property. The GCC and many MENA countries, except for the UAE, include elastic clauses in the standard employment contract that award any creation to the employer, or have vague clauses that make interpretation difficult. UAE copyright law has banned such vagueness, however, limiting an employer to five future copyright creations. Although this is an intriguing law, its effectiveness is unknown, since there have been few cases in which its limits have been challenged.
Although MENA countries have come along way in intellectual property protection, the subject still creates a blind spot in the region’s regulation agenda. A lack of interregional, regional, and international cooperation is one of the main obstacles to the creation of a robust IP governance system in this area of the world.