Authored by Elizabeth D. Ferrill
"The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of
rights and obligations."
-- Objectives, Agreement on Trade-Related Aspects of Intellectual Property Rights1
In 1994, the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) was created.2 TRIPS requires all 150 members3 of the World Trade Organization (WTO) to provide minimal standards of protection for intellectual property (IP).4 TRIPS is part of the larger WTO framework that promotes trade liberalization.5 Through a series of *138 agreements designed to lower trade tariffs and eliminate other barriers to trade, the WTO strives to improve standards of living of all members, expand production of and trade in goods and services, and sustain development, especially in developing countries worldwide.6 Most economists view trade liberalization as a means to wealth maximization.7 If each country produces what it is best at producing, then output of efficiently produced products is higher worldwide.8 Hence, countries that are the most efficient producer of a certain good would produce that good and trade with other countries for those goods it produces more efficiently, all without the cost of trade barriers.9 Yet, countries are reluctant to unilaterally lower their trade barriers.10 To avoid this problem, the WTO established rules for reciprocal *139 lowering of trade barriers.11 In the realm of intellectual property, harmonization, defined as the standardization of intellectual property laws, is analogous to trade liberalization. If every country were to respect and protect the intellectual property rights of all other countries, inventors and creators would have the maximum incentive to create, mutually benefiting the world.
More than a decade after its ratification, there remains tension and widespread noncompliance with TRIPS, as many countries continue to not enforce foreign IP rights, despite the potential benefits of harmonization. Counterfeiting,12 which could be mitigated by such enforcement, costs the world economy about $600 billion annually and includes a multitude of products, such as pharmaceuticals, DVDs, software, toys, spare parts for cars and aircraft, and apparel.13 This prompts the question of why complying with TRIPS and curbing counterfeiting and pirating has been so difficult over the past decade. There are a number of possible explanations.
One oft-stated explanation is that the world is full of thieves and freeloaders who violate IP laws because copying is cheaper than creating new content.14 This theory maintains that not only do industrializing countries engage in unfair trade,15 but they are morally bankrupt as well because they do not adhere to the rule of law.16 Perhaps this is an overly simplistic answer.
Another possible explanation is that countries which harbor pirates do not understand their obligations under TRIPS, and perhaps more education on enforcement would lead to enhanced enforcement strategies. However, the U.S. Trade Representative (USTR) provides extensive technical assistance and training on how to implement the TRIPS agreement *140 to developing countries who are trade partners with the U.S. This assistance includes education about the provisions of the treaty as well as assistance in drafting enforcement laws.17 But the USTR maintains the "Priority Watch List" or "Watch List," listing those countries that engage in "onerous and egregious" acts which violate TRIPS and are not engaged in "good faith negotiations" to address the problem.18 As the 2006 report lists thirteen countries on the Priority Watch List and thirty-four on the Watch List, the assistance of the USTR alone does not appear to be solving the problem of noncompliance.19
A third explanation is that the barriers to compliance with TRIPs are more complicated than they first appear. One commentator, Robert Baldwin, has likened trade liberalization to draining a swamp: "as successful pumping efforts leads to a fall in the water level (tariffs), they also reveal rocks, stumps and other obstacles (non-tariff barriers) that lie below the surface."20 By standardizing a minimum level of IP protection and enforcement, TRIPS has eliminated much of the differences between IP laws throughout the world, i.e. "draining the water." However, other non-tariff barriers now seem to be impeding the progress of compliance with TRIPS and eventual IP harmonization. Thus, while the WTO can regulate the tariffs and standardize some aspects of IP, the rocks and stumps remain; ready to complicate full compliance with TRIPS.
One source of these non-tariff barriers may be the fact that the Western concept of intellectual property is simply incompatible with how some countries view intellectual property.21 Consequently, the transition to TRIPS is particularly hard because it requires not only writing new laws, but also a shift in the world's view of intellectual property.22 For many *141 industrializing23 and nonindustrialized countries, the implementation of TRIPS has revealed a host of substantial barriers which may explain the rampant non-compliance. This paper will examine the factors influencing industrializing and nonindustrialized countries' view of IP which contributed to the non-tariff barriers in the first place. While these countries can do little to stop the migration to IP harmonization, a better understanding of the origin of these barriers could facilitate a smoother transition to true compliance with TRIPS.
This paper will begin with a brief background on TRIPS, the problem of piracy and counterfeiting, and the foundation of Western ideas of intellectual property, upon which TRIPS is based. Next, using examples from around the world, it will discuss the influential factors which shaped the non-tariff barriers including: type of government, the influence of religion, and the effect of regional problems. Finally, the paper will close with a discussion of methods to overcome the non-tariff barriers towards full compliance with TRIPS in an effort to achieve worldwide IP harmonization.
A. History of TRIPS
In 1994, at the end of the Uruguay Round24 of trade negotiations, TRIPS was added to the revision of the General Agreement on Tariffs and *142 Trade (GATT) treaty, which eventually evolved into the WTO.25 Under TRIPS, all WTO member countries must eventually provide minimum standards of protection for intellectual property, including patents, copyrights, trademarks, and trade secrets.26 In addition, TRIPS requires countries to treat IP rights for both foreigners and nationals equally.27 Finally, under TRIPS, all signatory governments must enact laws to enforce IP rights and provide penalties sufficient to deter future violations.28 Governments must establish courts that can review administrative decisions and order the disposal of counterfeit goods, as well as make willful trademark and copyright violations criminal offenses, punishable with jail sentences.29
In this context, the treatment of intellectual property is based primarily on Western intellectual property laws, as the Western rules have become global rules.30 Not surprisingly, the business leaders in the industrialized countries were the force behind the TRIPS agreement.31 Under the previous laws, users in countries without IP laws had been allowed to use IP for free; but under TRIPS, those users would have to pay royalties.32 The worldwide amount of the royalty obligation under TRIPS has been estimated to be about $60 billion per year.33 Theoretically, in exchange for paying royalties, the industrializing and non-industrial countries attract increased foreign investment and companies from industrialized nations would have incentive to invent products aimed at non-industrial world problems, such as tropical diseases.34
Nonetheless, even from the beginning, TRIPS has been a controversial part of the WTO. Unlike under the GATT, the previous treaty, which was more like a contract, the WTO is an organization with equal members, each of whom gets a vote.35 Unfortunately, despite an "equal" *143 vote, it is difficult for non-industrialized members, in particular, to effectively participate in the decision-making at the WTO as they have small delegations and are usually ill-prepared to meaningfully contribute.36 As a result for a number of reasons, many non-industrialized and industrializing members find themselves with limited bargaining power--in the position as "rule-takers" rather than proactive "agenda-setters."37 One poignant example of this situation occurred after TRIPS was signed when some non-industrialized country negotiators revealed in interviews "that the technicalities of TRIPS had evaded them at the time when the agreement was being negotiated."38 As a result, they maintain that they believed that TRIPS applied only to counterfeit goods and not the entire spectrum of intellectual property.39 The anger over these issues has not abated.40
The implementation of TRIPS was staged over more than a decade. Originally, "Developed Countries" were required to fully implement TRIPS by January 1, 1996, "Developing Countries" by January 1, 2000 and the "Least Developed Countries" by January 1, 2006.41 Even before TRIPS, the United States and similar countries were using bilateral trade agreements to protect their intellectual property rights.42 The march towards globalization of intellectual property started before TRIPS and culminated in its adoption.43
B. Piracy and Counterfeiting
As discussed in the introduction, counterfeiting remains a huge problem, ranging from disposable razors to golf clubs.44 Counterfeiting has developed from a localized industry, where a country concentrates on *144 copying only a certain type of goods, to a "global business" involving the copying of a variety of products.45 Criminals are attracted to counterfeiting because of the relatively small capital investment and the low penalties, assuming that they are ever even caught.46
For example, the U.S. government has discovered fake Marlboros made in North Korea at over 1,300 retailers from coast to coast. Officials suspect that North Korean cigarette manufacturing plants are owned by global organized-crime groups. The smugglers have given North Korea annual payoffs ranging from $80-$160 million and the U.S. government has seized more than a million packs of bogus cigarettes.47
In Ukraine, the government worked with Proctor and Gamble (P&G) to successfully detect and destroy a lucrative illegal market in counterfeit health and beauty products. Prior to this effort, P&G found that a staggering 43% of hair-care products and 23% of laundry products sold in Ukraine under the P&G brand names were counterfeit.48 In 2005, Ukraine amended its IP laws to combat domestic optical media counterfeiting, such as DVDs and CD-ROMs.49 Nonetheless, Ukraine remains on the U.S. Trade Representative's "Priority Watch List" for its role as a major transshipment point and storage location for illegal optical media produced in other countries.50 North Korea and Ukraine represent only a fraction of the counterfeiting and IP violations tracked by the USTR.
C. Ramifications and Enforcement
The ramifications of these IP violations are pervasive. The impact to the world economy from counterfeiting alone has been estimated to be $600 billion a year.51 More specifically, American copyright-based industries sustained more than $9 billion in losses, and the International Federation of Photographic Industry (IFPI) estimates that two out of every five physical recordings are illegal.52 In addition, the Business Software Alliance (BSA) estimates that the global loss to software piracy is $10.9 billion, with the seizure of pirated Microsoft products alone in excess of $1.7 billion.53
*145 Counterfeit goods rob governments, and by extension their people, of valuable tax revenues and deprive workers of the protection of labor laws.54 For pharmaceuticals and aviation parts, counterfeit goods go beyond an economic problem, and actually risk the health and safety of the public.55 Perhaps most alarming is the mounting evidence suggesting that organized crime syndicates and terrorist organizations56 are turning to intellectual property theft, rather than other sorts of illicit activity, as a means to raise funds.57
As a result of reports like these, many interest groups and businesses worldwide have pressured the United States and other Western nations to aggressively enforce the provisions of TRIPS. Because of the increasing importance of IP as the United States shifts from an industrial economy to an information-based economy,58 the Department of Justice states that it is waging the most offensive campaign against intellectual property theft and counterfeiting in its history.59
The USTR reports that certain countries have not yet fully implemented their TRIPS obligations, particularly with respect to enforcement.60 The annual report from the USTR specifically addresses three major problem areas: counterfeiting and piracy, transshipment of *146 goods,61 and free trade zones.62 Annually, the USTR publishes a "Special 301" report,63 categorizing violating countries as "Priority Watch List" or "Watch List" and noting positive developments from the past year.64 This annual report provides the USTR with the opportunity to assess the levels of piracy and counterfeiting and send the "necessary message to the governments of countries where serious [Intellectual Property Rights]-related problems exist."65
III. Intellectual Property in Industrialized Countries
With a clear understanding of the magnitude of this problem and attempts at enforcement, now we can consider the underlying principles of intellectual property that are ingrained in TRIPS. Embodying the Western ideas of intellectual property, TRIPS proscribes rules and enforcement procedures consistent with the pre-TRIPS Western laws.66 Accordingly, the *147 level of protection required under TRIPS is essentially the same as the level that was previously in place in most industrialized countries.67
In addition, in order to fully understand the possible conflict with non-Western intellectual property views, it is important for the reader to be familiar with the basic tenets of Western intellectual property. The following section will summarize the main types of Western intellectual property as well as the general public policy underlying the law. Finally, this section will conclude with a brief discussion of the differences regarding intellectual property, even among the Western countries.
A. Western Intellectual Property
The Western conception of intellectual property is divided into four main types: patents, copyrights, trademarks, and trade secrets. Patents are issued by a government and give the patent owner a monopoly over the product or process for a limited period of time in exchange for disclosing the invention.68 In order to be patentable, an invention must be of patentable subject matter,69 original, novel, useful, nonobvious and must be adequately described to allow another person to make and use the invention.70 Copyrights protect the expression of an idea, not the idea itself.71 Copyright protection is available for original works of authorship that are fixed in tangible medium of expression.72 Copyright owners have an exclusive set of rights, including reproduction, adaptation, distribution, and performance.73 A *148 trademark is any trait used to identify and distinguish products, services, or their producers, reducing consumer confusion regarding the source of goods. A trademark may be a distinctive symbol, word, name, sign, shape, or color, but generic terms do not qualify as trademarks.74 Finally, a trade secret is "any formula, pattern, device, or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use [the information]."75 The subject matter of the trade secret must be a secret and the owner must take reasonable measures to keep the secret.76
B. Policy Underlying Western IP
The Western intellectual property system rewards creativity by granting monopolies over the use, possession, and disposition of the objects described in the previous section.77 Based on the economic theory that individuals will maximize their individual welfare, this system encourages individuals to be creative and innovate, benefiting themselves and by aggregation the entire national economy.78 This notion that intellectual property protection encourages innovation and national development is fundamental to the Western view of intellectual property and the main reason that industrialized countries ardently protect their IP rights.79
C. Differences Among Western Countries
However, the industrialized world is not in full agreement regarding some key parts of intellectual property policy. For example, there has long been difference among how the United Kingdom, the United States, Australia, and New Zealand define a "patentable invention." Although the latter three derive much of their laws from the first, there has been much discussion over the past few years regarding whether or not software, business method patents, and genetic material are subject matter suitable for a patent.80 A related issue is whether or not a patent can be granted for living organisms, such as laboratory mice.81 As a result, the TRIPS agreement, as *149 previously mentioned, allows member countries some latitude in determining which types of inventions are patentable.82
Another area of controversy is moral rights. A moral right is personal to an author, separate from the economic aspect of copyright.83 This doctrine originated in France and includes elements of attribution for the author -- the right to prevent false attribution or harm to the author's reputation, the right to withdraw the publication from distribution, and the right to prevent another (even a rightful owner of the work) from changing or removing the work.84 Under French law, the moral right is perpetual and inalienable.85 Traditionally, the United States did not recognize this type of right, and only recently adopted the Visual Artist's Rights Act (VARA), which is a limited law which protects aspects of visual art in a way similar to moral rights.86
Finally, there are major differences between the procedures for applying for patents between the United States and the rest of the world. For example, the United States currently operates on a "first-to-invent" system, meaning that the first person to conceive of the invention and diligently reduce it to practice (or to file a patent, which is constructive reduction to practice) should be awarded the invention.87 In the rest of the world, the first inventor to file a patent application has priority over all others.88 As result, if an inventor wishes to file for patents around the world, this seemingly small difference can lead to a tangle of varying rules and regulations. These three brief examples show that even the Western world does not agree on all aspects of intellectual property.
IV. Influential Factors
With a firm idea of the Western view of intellectual property, this section will now discuss the influential factors which can shape the formation of a nation's non-tariff barriers to TRIPS. The section will include numerous examples from around the world to show how history, government, religion, and regional problems may lead to barriers that conflict with the TRIPS view of IP.
*150 A. National History
The first major factor in determining how a country, especially an industrializing or non-industrial country, developed non-tariff barriers is to consider the country's history. Many non-industrialized countries, as well as the United States, are former colonies and the former colonies' laws are interlinked with their former colonizer.89 In addition, some countries have large populations of indigenous peoples, whose traditions effect the local law.
1. Vestiges of Colonial Rule
In terms of intellectual property laws, being a former colony appears to have two major effects on a country. First, many colonies suffered a great loss of independent development of intellectual creativity during colonization. Such that even after colonization ended, these countries had trouble restarting such development.90
Under colonial rule, the major pre-TRIPS treaties, such as the Paris and Berne conventions, as well as the national laws of the colonial powers were automatically extended to the colony.91 When Nigeria, an English colony, needed a new law, such as a law regarding corporations, the Colonial Office in London would dispatch a copy of the latest English Companies Act, and the colonial legislature would adopt the law in the colony without much consideration of whether it was really appropriate for local conditions.92
After the colonial period ended, most former colonies in Africa and Asia kept the same IP laws, because they were advised that such laws would be relevant to the post-colonial situation.93 For example in Eritrea, a former Italian colony, the country made major changes in many other laws, but chose to adopt large portions of Italian trademark and copyright law *151 wholesale.94 Consequently, the patent offices of Kenya, Democratic Republic of the Congo95 or Algeria continued to automatically register patents examined and certified by the patent offices in London, Brussels, or Paris respectively.96 No one told these offices to change their administrative procedures; instead, the former colonies just rubberstamped the patents issued in Europe.97
One commentator offers that the reason there was little significant change to these laws in the Democratic Republic of the Congo is because of the irrelevance of such IP laws to the new rulers at the time they came to power.98 Thus, in that country, the Belgian- and French- based laws were not repealed until the early 1980s, despite gaining independence thirty years earlier. As a result, much of Africa is a patchwork of common law intellectual property laws, from England, as well as laws based on the continental principles from France.99 Since, these imported laws have not necessarily been effective, and some have argued that non-industrialized countries should exercise caution in adopting foreign laws as their own.100 Unfortunately, for members of the WTO, this advice comes too late in the intellectual property arena in light of TRIPS.
2. Indigenous People
Many industrializing and non-industrialized countries have significant, vibrant populations of indigenous people who influence the development of the country's laws. Historically, in the United States, all Native American groups recognized some form of intangible property, protecting it much like Western trade secrets.101 Examples of protected intangible property include those protected in the West, such as songs and dances, as well as less familiar property such as myths, magic formulas, right to participate in certain ceremonies, and perform certain dances.102 The process of making herbal medicines and hunting methods were also protected.103 The Aboriginal people of Australia recognize a sort of "community copyright" in certain themes or images.104 In order for an individual artist to use these elements in his work, he must have permission *152 of the clan leaders, with the artist using the element as a "custodian or trustee" on behalf of the entire clan.105
Shoehorning indigenous traditions into Western intellectual property laws is not a good fit. First, it often may be difficult to separate "art," which is copyrightable, from "technology," which is patentable, as household tools, weapons and medicines all have cultural, as well as technical roles.106 Another problem for copyrightable materials is that often the dances and songs may not be "fixed in a tangible medium" as is required by most copyright laws.107 Rather, these materials are handed down orally from one generation to the next, which may also create problems in identifying an author.108 In addition, for patents, many indigenous communities are unable or reluctant to name an inventor or inventors, which is required in order for a patent to be granted.109 Finally, the indigenous population may not be able to get a patent if there is evidence of prior use of the patent product outside of the control of the inventors.110 The United States Patent and Trademark Office has not yet ruled on whether intra-indigenous community use counts as such prior use, which would bar a patent.111 As these examples illustrate, Western intellectual property laws do not conceptualize invention and authorship in a manner that is compatible with some indigenous communities.
As a result, most indigenous people rely on trade secrets to keep outsiders from exploiting them. In India, artisans in the craft industry have taken such secrecy very seriously. In addition to prohibiting modern day photography and avoiding catalogs, artisans have long guarded their processes even from their own daughters.112 Since the daughters may get married and leave the family business, the artisans cannot take the chance that their daughters will take the secrets with them.113
In Ethiopia, the government has stopped trying to protect folklore with Western intellectual property type laws. Acknowledging the problem of copyrighting songs whose authors are unknown, the Ministries of Culture and Information requires prior authorization and a fee for any reproduction or adaptation of folklore.114 If an author of a new song cannot produce documentation of his authorship, then his song may be labeled "folklore" and denied copyright protection by the government, allowing the central agency *153 to be in charge of licensing it.115 Thus, both a colonial history and accommodations made for indigenous populations could create non-tariff barriers to TRIPS.
B. Legal Traditions
The second major factor is based more generally in how a country views tangible property rights. The Western view of property is often described as a bundle of "sticks" or rights, including right to possession, right to exclude others from use, and right to dispose of the property.116 This theory of property also allows a multiple parties to hold a "stick," or have rights, over a single piece of property. For example, a renter, a landowner, and the owner an easement may all have rights in a single plot of real property. In terms of intellectual property, many commentators have said that awarding a patent or copyright on an invention or creative work is a type of commodification.117 Through commodification, multiple parties may have rights to different uses of a single piece of intellectual property, just as with the plot of real property. In the past, the commodification of land, labor, and money spawned the transformation of Western society from a feudal society to a modem market economy.118
In contrast, indigenous people have a different view of property. For example, the Mesa Indians of North America recognize a tribe member's right to be an "owner" of property but that ownership does not include the right to exclude others from use.119 In the Pacific Northwest, private ownership of fishing, trapping or wild plant gathering rights more closely resembled a form of stewardship.120 In addition, owners were often restricted in their right to dispose of the property; often, disposal was only allowed to other members of the tribe.121 Finally, some ownership of intangible property rights, such as the right to perform a dance or song, could be earned over time, not paid for.122
Halfway around the world, the Soviet Union also had a distinct understanding of property rights. Under Soviet law, there were two types of permissible ownership, socialist and personal, and one impermissible type, private.123 Under the Marxist system, all "private" ownership was liquidated and then banned because all instruments and means of production needed to be consolidated under State control in order to build a successful communist *154 society.124 Socialist ownership includes enterprises (businesses), buildings, structures, equipment (such as merchant ships and factory machines) and farms.125 Under the Soviet system, only the State or State-run organizations could own these types of property.126 Further, in an effort to abolish bourgeois property, the USSR Constitution drew a distinction between "private" and "personal" ownership.127 While "private" ownership was not allowed, "personal" ownership, which was defined as property derived from labor income or by bequest, was constitutionally protected for all citizens.128 Under the Soviet system, personal property included automobiles for personal use, food for personal consumption (as opposed to as feed for farm animals), garden tools by urban dwellers for use in personal gardens, and the fruits of the labor of artisans, which includes copyrights and patents in some circumstances.129 Therefore, under the Soviet conception of Marxism, inventors and authors were allowed a form of personal ownership over their works. These three different conceptions of property directly effect how a country builds its property laws and thus its intellectual property laws.
Another important consideration, under the auspices of legal traditions, is whether a country transplanted the laws of another, presumably a more industrialized nation, rather than continuing to organically develop their own legal systems. In the 1950s, Ethiopia adopted a somewhat "ready-made" system of laws developed by professional legal experts.130 Professor Rene David, the expert who drafted much of the new law, stated that he thought Ethiopia could not wait 300 or 500 years to construct laws in an empirical fashion as the Romans or English had done.131 Instead the modernization of Ethiopia meant that the country needed to use a ready-made system, even if it was a foreign one.132 Unfortunately, these adopted laws were often ineffective. In particular, Ethiopia later had significant problems integrating the related fields of copyright, confidentiality, and unfair competition laws, because each area was drafted by a different foreign expert, leading to contradictory provisions and conceptions.133
Other countries, like China, tried to incorporate aspects of Western law into their own systems, usually as part of a treaty agreement with a Western nation. In the early twentieth century, China agreed to protect British and American intellectual property as part of international business development.134 In part due to vague language in the treaties and in part due *155 to the fact that the Chinese did not have much experience with this type of law, these treaties were difficult to enforce:
The U.S. consul general in Shanghai wrote to his ambassador in 1904, "The Chinese seem to have confused a trademark with a patent. You will remember that in our negotiation of the  Treaty, it seemed nearly impossible to explain to them the difference between a trademark and a patent.135
Thus, countries with either partially or completely adopted laws, often had difficulty using the Western laws as effectively as their Western counterparts.
Whether through a different view of property in general, or through the ineffective assimilation of laws for industrialized nations, a country's pre-TRIPS legal traditions could easily create non-tariff barriers to TRIPS compliance.
C. Type of Government
The type of government that a country has is also a key factor in creating non-tariff barriers. This section will discuss the effect of both monarchies and communism.
Most Western nations were at one time monarchies or the colony of a monarchy. As a result, the Western view of intellectual property has been shaped by the "need" of the monarchy to control the populace in order to maintain power,136 fill its coffers, and regulate commerce.137 Originally, monarchs felt generally threatened by books, and more specifically the unauthorized copying of certain books and other printed materials, such as calendars.138 One Chinese emperor prohibited the unauthorized reproduction of calendars and almanacs.139 This information was tightly controlled by his court astronomers as time and astronomy were central to protecting the emperor's assertion that he was the link between human and natural events.140 A more educated populace is harder to control and thus *156 the monarchy wished to stamp out heresy as early as possible.141 To mitigate this threat, monarchs and emperors required publishers to register their works to ensure that they could be censored before widespread printing began142 and granted special permission to inventors.143
This practice of granting permission to inventors began as early as 835 A.D. during the Tang dynasty in China144 and continued in the Republic of Venice between 1450 and 1550.145 In Venice, at the peak of the Renaissance, the Venetian government needed to accept strangers into their society in order to maintain a flow of new ideas and inventions.146 In order to overcome the opposition of the guilds, the state offered special privileges, overriding the guilds, in favor of certain types of inventors.147 Originally, these favors were revocable at will by the government or king, but later the process was formalized and became a matter of right for the inventor.148
Under the guild system, trademarks were used as early as the thirteenth century and their use was compulsory so that the public would know where goods came from. For example in 1544, Charles V of England made it compulsory for symbols to be placed on all tapestries so that the city and maker of the tapestry would be known; "the penalty for infringement was to be cutting off of the right hand."149 Trademarks did not become symbols of individual goodwill (as they are viewed today in the West) until the Industrial Revolution.150 Since monarchs had little need to control the populace beyond their own borders, they correspondingly had little concern for the intellectual property rights of their citizens abroad. Likewise, many Western countries did not necessarily recognize the rights of foreigners nor bestow on them the right to protect their intellectual property.151 It was not until the nineteenth century that foreign treaties started to standardize the treatment of citizens' and foreigners' intellectual property rights.152
In 1844, a young Karl Marx wrote that when he carried out any scientific work it was as part of a larger, social activity.153 As a result, he thought that any invention was fundamentally a product of the larger society, *157 not solely his own doing.154 This Marxist view manifested itself differently first in the Soviet Union and later in China.
The Soviet Union had a two-tracked system for acknowledging the rights of inventors.155 Under the preferred system, the inventor would give the rights to the invention to the State in exchange for a certificate of invention.156 This certificate would entitle the inventor to recognition, special tax rules, and monetary rewards tied to the savings realized from the invention.157 The State would then have free reign to exploit the patent. Alternatively, the inventor could get a patent and have exclusive rights to the invention within the USSR.158 However, the Soviets placed much stricter formalities on patents,159 making them much rarer than inventor's certificates.
In contrast, China took a stricter view of the Marxist concept. Focusing on the need for reconstruction in the People's Republic of China, after its founding in 1949, the Chinese government made many types of new inventions state property automatically.160 The Chinese also had limited trademark laws but few comparable provisions for copyright.161 Even after an attempt to reward intellectuals, to spur applications for inventor's certificates, only six certificates of invention and four patents were issued through 1958.162 The Marxist view of intellectual property was a reinforcement of the pre-existing Chinese Confucianism view of intellectual creation which will be discussed in the following section.163
As a result of these practices, communist or socialist governments, and monarchies, may encounter conflict between their internal governing procedures and the requirements imposed by TRIPS.
*158 D. Religious Traditions
The fourth major factor arises from a country's religious beliefs and the extent to which those beliefs influence the conception of creation and invention. Lying at the core of Chinese society is the Confucian view that everyone is interconnected in a series of relationships (husband and wife, parents and children, ruler and subject), creating a strong collective consciousness.164 This view encourages humility, emphasizing connection to the accumulated wisdom of the past and the Ancients.165 Subsequent generations learn about the past thoroughly and thus are able to "transmit" (select and adapt past experiences) it as a guide to current problems.166 The consequences of creation and invention are referred to in The Analects in which Confucius says, "I have transmitted what was taught to me without making up anything of my own. I have been faithful to and loved the Ancients."167 However, the Chinese poet does not see himself as merely engaging in a mechanical process of restating what has happened in the past, but rather, he engages in a series of allusions and references from a shared reservoir.168 Thus, copyright is alien to the Confucian tradition, because "true scholars wrote for edification and moral renewal, rather than profit."169 It would be inappropriate to deny another the same opportunity, by excluding others from this shared common heritage.170 For the Chinese, this communal approach to creativity complemented the Marxist approach, making it easier for the People's Republic of China to oppose a Western view of individual intellectual property rights.171
Other societies also had a different understanding of "authorship," because the individual was not the only source that created the work. Under Jewish law, creation is a product of the author's individual effort, his teachers, the contribution of the community, and finally, God as the ultimate source of wisdom.172 However, in order to allow the author to earn a living, rabbinic authorities could grant the author an exclusive monopoly for a limited time, and often for a limited geographic region.173
Indigenous societies also drew a distinction between different types of copyrightable work. In Arizona, the Pima-Papago tribe distinguish three types of songs: "dreamt songs" from the spirits, "picked up songs" learned from outside the tribe, and "songs given in the beginning," i.e., natural *159 songs.174 Likewise, the Aboriginals take a holistic view that the rights to create paintings and other work depicting stories of creation belong to the traditional owners of the stories.175 Therefore, the "copyright" in this type of work is seen as belonging to the community, as a divine gift, rather than to a single individual.
Some societies took a middle approach. In Ethiopia, the Fetha Negast, its earliest known law, prohibited using another's literary, artistic, or musical work, with the infringer being beaten and condemned in the same way as any other thief.176 The only exception to this rule was specifically for religious work. For this type of work, the author or composer must be recognized by name at any public performance and texts must be copied word for word without alteration, principally for the purpose of accurate intergenerational transmittal of the cultural heritage.177 Besides recognition, the author was supposed to feel "respect" for being copied rather than infringement of his rights.178
Regardless of the approach, ingrained religious beliefs often conflict with TRIPS, creating non-tariff barriers.
E. Solving Regional Problems
The final factor this paper will discuss is the effect of solutions to regional problems. Sometimes these solutions lead to unique intellectual property laws which become a non-tariff barrier under TRIPS. Often times, the natural resources that a country lacks or resources that a country wants to protect influence the types of laws it
passes. This behavior is rational, because the country protects what is important to it. In addition to natural resources, countries may tailor laws to protect its citizens or preserve communal traditions.
1. Natural Resources
Traditionally in Germany, the government granted patents on new chemical processes, but not on new products--i.e., the chemical formula--both of which were patentable in the United States.179 In the early twentieth century, Germany dominated many industries worldwide including glass for optics and electric lights, semi-finished steel, textile dyes, machine tools and medical instruments, and synthetic medicines and chemicals.180 Germany *160 turned to chemicals as a means of making raw materials, because its land held few resources.181 Starting in 1877, the country set up a special patent system to protect German industry, where the government would grant a 15-year patent on chemical innovations, but only to those who built and operated a facility in Germany which used the improved process, effectively denying patents to most foreign chemical makers.182 For Germany, the synthetics industry was the wealth that the Indies had been for Britain.183 The key point here was not so much the innate talents of German scientists and engineers; rather, the German government took a special interest in them, held them in an elevated position in society, and fiercely protected their interests through strong patent laws and other means.184 Eventually, patenting a process became part of the Western tradition of intellectual property and is thus embodied in the TRIPS philosophy.185
On the other hand, some industrializing countries, with abundant natural resources, have developed protectionist laws, leading to serious differences with the TRIPS philosophy. For example, in the 1950s, India reformed its nearly 100-year old patent system, inherited from its colonial ruler, Great Britain.186 Specifically, the Indian government chose to follow the German path by only allowing patents for processes, not products, and the patent term for processes was reduced to 5-7 years, from the original 14 years.187 By not allowing patents on products, the Indian government has been able to maintain local plants for use by the entire population. Efforts to add "products" to the Indian patent scheme were stalled in 1999.188 Under *161 TRIPS, members, including India, must eventually189 provide patent protection to patentable inventions "whether products or processes in all fields of technology" with only a few limited exceptions for medical treatment processes and living organisms.190
Governments have taken steps to protect a natural resource of a more internal nature--the genetic code of their own population--from "bioprospecting" or "biopiracy."191 When researchers can draw genetic samples from homogeneous populations, it becomes easier to identify genetic patterns. Therefore, the genetic material from certain isolated and insular peoples is valuable, as a research tool.192 In the mid-1980s, the genetic code of the Hagahai people of Papua New Guinea was used as raw material by the National Institute of Health (NIH).193 The patent application listed a cell line, derived from a member of the tribe who was resistant to a type of leukemia.194 A controversy erupted with critics arguing that this type of commodification of body parts was akin to high-tech slavery.195 On the other hand, in 1998, Iceland took on a similar initiative, deciding to license the entire population's genetic code to research groups and drug companies for $12 million per year.196 Under TRIPS, this type of genetic information is patentable.197
*162 2. Protecting the Population
Many countries also tailor their laws in an effort to protect their people from both starvation and disease. As mentioned before, India restricted the patenting of food stuffs, since the Indian government wanted to avoid a potential crisis in feeding its large population.198 Since the Indian government requires large quantities of medicines at low prices, it did not allow patents on products. Doing so would give a monopoly over a vital aspect of society,199 and possibly lead to price inflation.200 Not only does TRIPS require developing countries to provide such patent protection, but it restricts conditions, such as a national
emergency, under which a compulsory license may be issued.201
In 1997, faced with a nearly 20% HIV infection rate and with 20,000 people per month dying of AIDS, South Africa passed a law, contrary to TRIPS, designed to make AIDS medication affordable.202 The South African plan instituted a system of parallel importation203 and compulsory licenses.204 Major drug companies filed lawsuits attempting to stop the price *163 controls, and the U.S. government pressured South Africa to repeal the law.205 Advocates argued that the South African government should be able to balance the rights of patients to have access to medications with the intellectual property rights of the drug makers, just as copyright is balanced in some circumstances by fair use.206 In 1999, in reaction to the situation, the USTR placed South Africa on its "Watch List" and in March 2001, the case went to trial.207 In April 2001, the drug companies withdrew their suit and offered discounted prices.208 The South African government found this to be a hollow victory, since even the discounted prices were not low enough for most patients to afford.209
In Brazil, the government provides free HIV/AIDS medication to all in need.210 In 2001, Brazil also threatened compulsory licensing against Roche Pharmaceuticals if it would not provide Nelfinavir, a protease-inhibiting drug, for an affordable price.211 Roche and Brazil eventually brokered a successful deal,212 and Nigeria followed quickly with a deal with an Indian generic drug maker.213 In each of these situations, the countries involved justified their actions as necessary measures to preserve the health and lives of their people, values they regarded as more important than the intellectual property rights of foreign corporations protected under TRIPS.
*164 3. Preserving Communal Resources
Finally, countries have specifically excluded certain communal resources when writing their intellectual property laws. In Ghana, the government decided not to allow the copyright registration for Kente cloth, which is a native textile design.214 The government felt that the designs were communal in nature, and therefore, it would be wrong to allow a single artist or weaver to have a monopoly on such a cultural resource.215 Unfortunately for one Kente weaver, Gilbert "Bobbo" Ahiagble, this type of exclusion left him with no legal recourse when the American department store, J.C. Penney, reproduced his designs on bedsheets and sold them to the American public.216 In this case, a seemingly reasonable exclusion by a government trying to protect a traditional resource left a local craftsman without protection from a foreign appropriator of his creation.
Prior to TRIPS, all of these tailored laws were necessary to allow these countries to protect their important resources. Under TRIPS these protective measures have become significant barriers to compliance with TRIPS, because the non-industrialized and industrializing countries are reluctant to change them.
V. Clearing the Barriers Towards True Compliance
Global IP harmonization is a good goal. TRIPS is important since it offers the best chance at IP harmonization thus far. While portions of the treaty may seem unfair, especially to non-industrialized countries, the reality is that IP harmonization and standardized enforcement is crucial for efficient trade as any country moves towards a service-based economy. A world without IP harmonization is inefficient and enforcement of rights is difficult if not impossible, resulting in a huge piracy problem. Global harmonization will be very important for the industrializing and non-industrialized countries in the future, even if it is painful right now. Piracy has been damaging to the industrialized world and will eventually damage the non-industrialized world as well.
The question remains whether the WTO's aim is true compliance with TRIPS or just the facade of compliance accompanied by a long list of "Watch List" violators. Intellectual property harmonization is too important to tolerate such a facade; true compliance is the only way for the whole world to realize the benefits of harmonization. As this paper has illustrated, the reality is that many substantial barriers to true compliance exist. *165 Accordingly, industrialized countries should not realistically expect the industrializing and non-industrialized countries to overcome these barriers on their own.
A. TRIPS as Poor Public Policy
Even though harmonization is a laudable goal, the fact remains that some provisions of TRIPS remain a "bad deal" for many industrializing and non-industrialized countries. For example, many African countries grant a low percentage of patents to local inventors.217 Thus, most patents from African countries are issued to foreign inventors and foreign corporations. In effect, by adopting TRIPS, these African countries are in essence giving away monopolies of their market to foreign corporations, without getting much in return, since foreign corporations often find it uneconomical to actually produce products in many non-industrialized countries.218 In addition, some countries, such as India, have valuable natural resources, that they may wish to use for medical purposes and do not want to give away under a TRIPS-like patent system. Finally, for countries like South Africa, following the patent laws related to HIV drugs may be a death sentence for their people.219 Thus, some countries may reasonably resist the provisions of TRIPS, since granting monopolies to their market for foreign corporations, giving away their own valuable resources, or abiding by world-wide drug patents, represents bad public policy for their own country.
These countries will continue to find it hard to justify the value of IP and IP enforcement before they have fully industrialized on their own. This concern is so great, that some commentators have suggested that nonindustrialized countries should reject outright the provisions of treaties like TRIPS.220 But this is probably not a realistic option for WTO members, as there are serious consequences for pulling out of the WTO agreements.221 In addition, while an industrializing and non-industrialized country may wish to pull out of TRIPS, they often need the lower tariffs in the other areas covered by the WTO. Under the "Single Undertaking" concept of the WTO, membership in the WTO is an all or nothing deal and members are not *166 allowed to pick and choose which parts of the agreements they will abide by.222
B. No Good Deed Goes Unpunished
Unfortunately, those countries who try to "do good" and comply with TRIPS often encounter further problems. For example, in Ghana, the government adopted broad IP laws quickly in 1991 in an attempt to protect its folklore.223 Unfortunately, the Ghanaian government agency set up to protect the folklore broadly interpreted "folklore" to include the entirety of Ghanaian popular music, imposing a special tax and licensing arrangement.224 This maze of commercial regulation destroyed popular music in Ghana and it has not recovered.225
Likewise, China has developed a set of enforcement laws based on the requirements of TRIPS--including the criminalization of certain enforcement provisions. Recently, China sentenced a pirate movie mogul, Lin Yuehua, to life in jail for smuggling over 30 million bootleg DVDs into China from 2002 to 2005.226 Some commentators have expressed concern with criminalization for IP violations, particularly given the harsh treatment and history of human rights violations in countries like China.227
C. Three Prongs to True Compliance
Surmounting the barriers to real compliance with TRIPS may be difficult, but any solution must include three fundamental prongs: education, incentives, and compromise. First, meaningful education should include not just information on how to enforce IP laws, but also include information on why the countries should be supporters of TRIPS in general. In addition, education must include how to negotiate for a better deal and finally how non-industrialized countries can make Western IP laws work for them in the long term. For example, President Bill Clinton started the Native American Initiative (NAI), a program to encourage indigenous populations to register trademarks and for the purposes of patenting and to document Native American technology as prior art.228 In 2002, the International Intellectual *167 Property Alliance (IIPA), a not-for-profit organization, was founded by Bruce Lehman, a former commissioner of the U.S. Patent and Trademark Office.229 The IIPA identifies problem countries for U.S. IP holders and helps educate those countries, showing that it would be in their best interests to enforce IP rights and that this enforcement would help the country's economy.230 Lehman believes that this goal is only possible through the development of in-country intellectual property systems and legal structures.231 Both the NAI and the IIPA help countries benefit from western-style IP laws and learn the power that these laws can have to protect their IP as well as foreign IP.
Second, if IP compliance is important to the industrialized countries, then these countries should be willing to give incentives to the industrializing/non-industrialized countries to encourage their compliance. Such incentives are crucial to those countries that are not industrializing in the near future. One counterargument to continued incentives is that non-industrialized countries already received incentives back in 1994 as part of joining the WTO initially.232 But this initial consideration might not be enough to counterbalance the current costs, especially when so many of their citizens are dying from diseases like AIDS and tuberculosis.233 Without further incentives, it will be easy for non-industrialized countries to find that the costs of implementing and enforcing TRIPS is more expensive than the benefits.
Finally, the industrialized members of the WTO should compromise and offer accommodations for the specific problems and concerns of industrializing and non-industrialized countries, including extensions to time limits and special provisions. So far, the Doha Public Health Declaration represents the only major compromise following the signing of TRIPS in 1994. Signed in Doha, Qatar, on November 14, 2001, this declaration extended the deadline for the Least Developed Countries (LDC)234 members to comply with the patent and trade secret portions of TRIPS. The Doha *168 Declaration followed the uproar over compulsory licenses in South Africa in the spring of 2001. The declaration also recognized the gravity of the public health problems related to HIV/AIDS235 and described the "flexibilities" already included in TRIPS including right to grant compulsory licenses, engage in parallel importation and determine what constitutes a national emergency.236 Other than extending the transition period for LDCs, the Declaration made no substantive changes to TRIPS. But, the Doha Declaration has allowed countries, such as Brazil, to negotiate with drug companies for lower prices for HIV/AIDS drugs. Unfortunately, forcing the industrialized members to come to the table prior to the Doha Declaration took a concerted effort of many industrializing countries (such as Brazil, South Africa and Thailand) and the potential political embarrassment of even more poor people dying from AIDS. Perhaps future compromises will not require such a drastic situation before the WTO acts. Further efforts at compromise, along with education and incentives, are crucial to the successful implementation of real compliance with the goals of TRIPS.
D. The Real Solution
In the end, the most important factor in real, meaningful compliance with TRIPS is time. More than one commentator has suggested that as an industrializing country's economy evolves and the country develops proprietary technologies that they want to secure in other nations, the country simultaneously develops an interest in protecting that intellectual property and enforcing the property rights of others.237 Having its own IP to protect, such countries will not need incentives to comply with TRIPS and will educate itself as part of good business practices.
For example, consider the historical development of some of today's most ardent proponents of intellectual property. The United States, which today has criminalized some forms of copyright infringement,238 in the past often took a lackadaisical view of IP laws. In the early 1800s, only American citizens were eligible for patent protection or copyrights. Therefore, Americans could bring foreign innovations into the U.S. and commercialize the idea, without owing the foreign inventor any remuneration. Simultaneously, foreign works of fiction, such as A Christmas *169 Carol, by Charles Dickens, sold for as little as six cents in the U.S. while it sold for $2.50 back in England. America justified this decision stating that its people were the gainers when publishers appropriated the foreign works because those works came "not from the people, but from the book-selling leviathans."239 Likewise, today Japan has its own advancements which are protected through patent laws and the country even has its own court system for patent disputes. But as recently as the mid-1900s, Japan circumvented IP laws by creating cartels, engaging in domestic price fixing, and in some situations acquiring foreign technology through clandestine means.240
Now consider the actions of the Chinese, who have been notorious for stealing and copying intellectual property. Recently, in preparation for the 2008 Summer Games, China passed special national laws exclusively to defend the intellectual property rights of its Olympic symbol. Citing the massive economic value of its Olympic mark, China can now send peddlers of fake goods to jail and the Chinese government is using the same printer which makes Chinese currency to create holographic tags to thwart counterfeiters.241 Apparently having its own IP to protect has helped the Chinese overcome governmental and religious barriers to compliance.
On the other hand, piracy of Nigerian films goes practically unnoticed and unpunished.242 As a result of overseas piracy, the country's consortium of 75 film production companies, estimates that not one dime of the over 600 movies made annually comes back into the country from overseas sales.243
These vignettes reveal that even those countries which are major proponents of intellectual property rights today, such as Japan and the United *170 States, did not always follow the rules. On the other hand, countries with bad reputations, such as China, will strongly enforce intellectual property rights under certain circumstances. Finally, non-industrialized countries, such as Nigeria, may be victims of piracy as well as perpetrators. Nigeria represents the type of country that will probably adopt the provisions of TRIPS more readily than a country without any IP assets to protect.
Intellectual property harmonization is an important goal. TRIPS is the best chance in a long time for this goal to be a reality. The goal is too important to allow the industrialized countries to strong-arm the rest of the world into anything other than true, real compliance. Unfortunately, there are honest barriers, simply beyond theft of intellectual property, to real compliance as outlined in this paper.
While the solution may come eventually as countries industrialize, in the meantime, the industrialized countries should acknowledge these barriers and work with the rest of the world to clear the way for compliance, not to just promote a false picture of compliance. Further, the industrialized world should not wait--because in the meantime, the poor will only get poorer and if the customers do not have money, they cannot buy what the industrialized world is selling.244 Poor, non-industrialized countries are net importers of intellectual property245 and thus the burden of enforcement rests largely on their shoulders. Non-industrialized countries represent an opportunity for industrialized nations to make a lot of money from IP, but only if a meaningful system of enforcement can be developed. However, this opportunity is wasted while the industrialized countries maintain an inflexible approach to the implementation of TRIPS.
Unfortunately, clearing the swamp to true compliance is not easy--the rocks are heavy and the roots of the tree stumps run deep. The quickest path to IP harmonization is for the industrialized countries to pitch in and help the other countries lift the rocks and dig up the stumps, or else they will find themselves tripping over them for a long time to come.
Law Clerk to the Honorable Liam O'Grady, Magistrate Judge, U.S. District Court for the Eastern District of Virginia.
1 Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Article 7-Results of the Uruguay Round, Apr. 15, 1994, 33 I.L.M. 1125, 1200 (1994) [hereinafter TRIPS Agreement] (emphasis added).
2 RENEE MARLIN-BENNETT, KNOWLEDGE POWER: INTELLECTUAL PROPERTY, INFORMATION, & PRIVACY 61 (2004). Technically TRIPS was created by a revision of the General Agreement on Tariffs and Trade (GATT). Originally signed by 23 countries, the GATT started in 1947 as an interim agreement, but actually provided the basis for the international trading system for the next 47 years. In 1995, the World Trade Organization (WTO) was created and the member countries adopted TRIPS as part of its charter. AMRITA NARLIKAR, THE WORLD TRADE ORGANIZATION A VERY SHORT INTRODUCTION 15, 20-21 (2005).
3 See The World Trade Organization, http://www.wto.org/ (follow "150 members" hyperlink for a list all 150 member countries) (last visited Mar. 12, 2007).
4 United States Trade Representative, 2006 Special 301 Report 9 (2006), available at http://www.ustr.gov/Document_Library/Reports_Publications/Section_Index.html (follow "2006 USTR Reports and Publications" hyperlink; then follow "2006 Special 301 Report" hyperlink). In this context, intellectual property includes patents, copyrights, trademarks, trade secrets, geographical indications, and other forms of intellectual property. Id. at 3.
5 NARLIKAR, supra note 2, at 28-29. The WTO promotes trade liberalization through two key principles: non-discrimination and reciprocity. Non-discrimination includes the Most Favored Nation rule and the concept of national treatment. The Most Favored Nation rule requires "that a product made in one member country be treated no less favourably than a like good that originates in any other country." National treatment requires all member countries "to treat foreign goods no less favorably than domestically produced like goods, once the former have met whatever border measures are applied by the particular country." Finally, reciprocity is intended to limit free riding which would be rampant if the non-discrimination rule was not applied equally by all members.
However, an Indian delegate once criticized this idea of reciprocity among countries of different sizes stating, "[e]quality of treatment is equitable only among equals. A weakling cannot carry the burden of a giant." Perhaps acknowledging this concept, the WTO does have a diluted system (as compared to the system under GATT) of special and differential treatment for developing countries which includes longer time periods for implementation and technical assistance to facilitate implementation. Id. at 29.
6 Id. at 2.
8 As the reader may notice, this description of globalization is closely related to the concept of a free market economy and to a lesser extent democracy. Some proponents, including Thomas Friedman, contend that globalization tends to turn all friends and enemies into "competitors." Thus, globalization will create more free markets which will create a more stable world since competitors often find it inefficient to fight wars against each other. However, in her book, Prof. Amy Chua disagrees, arguing that:
[T]he global spread of markets and democracy is a principal, aggravating cause of group hatred and ethnic violence throughout the non-Western world. In the numerous societies around the world that have a market-dominant minority, markets and democracy are not mutually reinforcing. Because markets and democracy benefit different ethnic groups in such societies, the pursuit of free market democracy produces highly unstable and combustible conditions. Markets concentrate enormous wealth in the hands of an "outsider" minority, fomenting ethnic envy and hatred among often chronically poor majorities.
AMY CHUA, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS ETHNIC HATRED AND GLOBAL INSTABILITY 9 (2003). Examples of an "outsider" minority include: Chinese in the Philippines, the Tutsi in Rwanda, and Jewish billionaires in Post-Communist Russia. Chua also points out that organizations like the WTO, the International Monetary Fund, and the World Bank are the mechanisms by which the United States government has helped bring capitalism and democratic elections to billions of people worldwide. Id. at 8.
9 NARLIKAR, supra note 2, at 2-3.
10 Individual countries are wary because they may not receive lower trade barriers from other countries in return. This situation is related to the Prisoner's Dilemma. As applied to trade liberalization, Prisoner's Dilemma is the phenomenon that while it is in each country's interest to raise trade barriers (to raise revenues and protect their domestic industries), the result of such individually rational policies is inefficient (because every country ends up paying higher prices for goods and the total system is less efficient). Id. at 4.
11 Id. at 5.
12 A counterfeit good is an imitation of the genuine good made with the intent to defraud the buyer. See THE AMERICAN HERITAGE COLLEGE DICTIONARY 325 (4th ed. 2002).
13 Maria Livanos Cattaui, Counterfeiting is out of control, INTERNATIONAL HERALD TRIBUNE, May 13, 2005 at 6.
14 Robert Burrell, A Case Study in Cultural Imperialism: The Imposition of Copyright on China by the West, 4 PERSPECTIVES ON INTELLECTUAL PROPERTY: INTELLECTUAL PROPERTY AND ETHICS 197 (1998). Burrell argues that the characterization of China as a "freeloading" nation has been uncritically adopted by the Western media without careful study of the "problem" of copyright piracy because of a misunderstanding of the nature and origin of Chinese copyright law.
15 In particular, Brazil, China, India, Indonesia and South Africa are described as "free-riders" who benefit from open world markets but resist widespread liberalization of their own markets. See Collapse of Doha Round Would Reduce WTO to Trade Litigation Forum, US FEDERAL NEWS, Oct. 30, 2006. (remark by Gary Hufbauer, Reginald Jones Senior Fellow at the Institute for International Economics in Washington, D.C.).
16 DEBORA J. HALBERT, RESISTING INTELLECTUAL PROPERTY 93-94 (2005). The counter-argument is that the industrializing and non-industrial countries are not flouting intellectual property rights solely for profit. For example many African countries are only to trying to prevent millions of their people from dying of AIDS and that it is unconscionable for the pharmaceutical companies, which are among the wealthiest corporations in the world, to paint themselves as "victims of unjustified 'piracy' and discrimination." Id. Further, they contend that any label such as "thieves" is one-sided and does not consider the true complexity of the issues. Id.
17 Special 301 2006, supra note 4, at 10. The USTR specifically calls this "enforcement-orientated training."
18 United States Trade Representative, 2005 Special 301 Report (2005), available at http://www.ustr.gov/Document_Library/Reports_Publications/Section_ Index.html (follow "2005 USTR Reports and Publications" hyperlink; then follow "2005 Special 301 Report" hyperlink) (under the heading "Background on Special 301"). See infra note 62 on the origin of Special 301.
19 See generally Special 301 2006, supra note 4, at 16-45 (identifying each country on the Lists and discussing the nature of their non-compliance).
20 NARLIKAR, supra note 2, at 62.
21 Possible fourth explanation: "By comparing the social costs and the benefits of a patent system in a non-industrialized country (non-IC), Greer states that '[t]here is sufficient evidence of both a direct and indirect nature to indicate that, indeed, the net social costs to the [non-IC] are probably quite high.' Hence, he proposes the abolition of patents especially foreign patents because the imbalance between costs and benefits and the 'economic burdens' the non-ICs suffer 'cannot be corrected by any policy other than the abolition of such protection."' ASSAFA ENDESHAW, INTELLECTUAL PROPERTY POLICY FOR NON-INDUSTRIAL COUNTRIES 113 (1996).
22 In 2005, the USTR states that a major issue in effectively addressing piracy and counterfeiting is a lack of "political will" on the part of foreign governments. This paper will describe the factors leading to that lack of political will. Special 301 2005, supra note 17, at 2.
23 In the academic world, there is much discussion about the appropriate terms to use when describing the various levels of economic development throughout the world. Terms such as "Third World," "developing," or "less-developed" are not usually considered appropriate because they tend to be ideologically motivated
(implying that countries which are not "developed" are somehow less worthy). Therefore, academics tend to use the term "developed" less frequently, in favor of terms such as "advanced" or "industrialized." See ENDESHAW, supra note 20, at 1.
To describe the three main strata of economic development throughout the world, 1 will use the terms: industrialized, industrializing and non-industrialized. In this paper, industrialized is defined as those countries which belong to the Organisation for Economic Co-operation and Development (OECD), an organization of countries which follow the principles of representative democracy and free market economy. The OECD includes, among others, Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Italy, Japan, South Korea, Mexico, Spain, United Kingdom and United States. See Organisation for Economic Cooperation and Development (OECD), http://www.oecd.org/ (follow "By Country" hyperlink) (last visited Nov. 16, 2006). Industrializing will refer to those countries which are quickly making their way towards industrialization including Argentina, Brazil, China, India and Eastern Europe. Finally, non-industrialized includes most of Africa and similar least-developed countries including Southeast Asia and South America.
Some countries are difficult to categorize, such as North Korea, which no doubt has industrialized to a large extent, but still remains more like a non-industrialized country since it is an international pariah in terms of trade and intellectual property.
24 As mentioned in note 2, supra, the GATT was intended as an interim solution. As a result, the GATT was continuously negotiated through "rounds." Each round extends for a period of time sometimes as long as eight years. NARLIKAR, supra note 2, at 20 (listing the eight rounds including: 1947 Geneva, 1949 Annecy, 1951 Torquey, 1956 Geneva, 1960-61 Dillon Round, 1964-1967 Kennedy Round, 1973-1979 Tokyo Round and 1986-1994 Uruguay Round).
25 MARLIN-BENNETT, supra note 2, at 61. Shortly afterward, as a result of the same revision of the GATT, the World Trade Organization (WTO) was created.
26 Special 301 2005, supra note 17, at 5. In this context, intellectual property also includes geographical indications, industrial designs and integrated circuit designs. NARLIKAR, supra note 2, at 83.
27 J. Michael Finger, Introduction and Overview, in POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES 3-4 (J. Michael Finger & Philip Schuler ed., 2004).
28 PAT CHOATE, HOT PROPERTY: THE STEALING OF IDEAS IN AN AGE OF GLOBALIZATION 232-33 (2005).
29 CHOATE, supra note 27, at 233.
30 See ENDESHAW, supra note 20, at 85; MARLIN-BENNETT, supra note 2, at 241.
31 FINGER, supra note 26, at 4.
35 NARLIKAR, supra note 2, at 43. However, despite the non-industrializing countries having a technical majority of votes, most decisions of the WTO are made by consensus. Id. at 44.
36 Id. at 44-45. The WTO has relatively complex diplomatic procedures for making changes to the Agreements and thus many non-industrialized countries are at a disadvantage because they either do not have a delegation in Geneva at all (about 22 countries who belong to the WTO do not have a delegation) or they have a small delegation, who cannot attend parallel meetings. Further, the onus is on each member to educate itself on the issues of the meetings and as a result, many non-industrialized countries are ill-prepared to participate effectively. Id.
37 See id. at 7-9.
38 Id. at 82.
40 Id. at 81.
41 The WTO members agreed to give Least Developed Countries an extension of ten years, to January 1, 2016, to implement TRIPS obligations for patent and data protection for pharmaceutical products. Special 301 2005, supra note 17, at 5. For further information on this type of "Special and Differential" treatment, see NARLIKAR, supra note 2, at 29.
42 See ENDESHAW, supra note 20, at 82.
43 See generally id. at 79-87. (describing the history of multi-national agreements prior to TRIPS which all led toward the universalization of intellectual property rights).
44 Starting with high-end designer goods, now counterfeiting has expanded to include the manufacturing and sale of fake soaps, shampoos, razors, batteries, cigarettes, alcoholic beverages, golf clubs, automobile parts, motorcycles, medicines, and heath care products. Special 301 2006, supra note 4, at 5.
45 Id. at 5.
47 Gordan Fairclough, Tobacco Firms Trace Fakes to North Korea, WALL ST. J., Jan. 27, 2006, at B1. The counterfeits look genuine including "Don't Litter" notices on the side of the boxes and warnings about the health dangers of smoking. Id.
48 United Nations Economic Commission for Europe, Combating Counterfeit Goods on International Markets: UN Body Explores New Solutions, Press Release, Oct. 26, 2005, http://www.unece.org/press/pr2005/05trade_p07e.htm.
49 Special 301 2006, supra note 4, at 30.
50 Special 301 2005, supra note 17, at 5.
51 Cattaul, supra note 12.
52 INTERNATIONAL ANTICOUNTERFEITING COALITION, WHITE PAPER: THE NEGATIVE CONSEQUENCES OF INTERNATIONAL INTELLECTUAL PROPERTY THEFT: ECONOMIC HARM, THREATS TO THE PUBLIC HEALTH AND SAFETY, AND LINKS TO ORGANIZED CRIME AND TERRORIST ORGANIZATIONS 4-5 (January 2005) [hereinafter IACC].
53 IACC, supra note 51, at 4.
54 Cattaul, supra note 12.
55 IACC, supra note 51, at 3. This paper recounts the health and safety concerns from fake pharmaceuticals, ranging from cancer drugs to Viagra, as well as concerns about counterfeit aviation parts, including bogus Black Hawk and Sea Hawk helicopter seals which failed under stress and intense heat. Id. at 7-9.
56 For example, in May 1996, the FBI seized 100,000 counterfeit T-shirts with the Nike "swoosh" and 1996 summer Olympics logos. The profit margin on each T-shirt was $5 to $7. The operation was run by followers of Sheik Omar Abdel Rahman, the blind cleric who was later sentenced to 240 years in prison for plotting the 1993 World Trade Center bombing.
In addition, in Iredell County, North Carolina, federal authorities discovered two brothers with a close relationship to the Lebanese-based Hezbollah organization, smuggling cigarettes from North Carolina to Michigan to resell for a 70 cents profit per pack. At trial, the government provided evidence that the smuggling ring sold $7.5 million in cigarettes, and also arranged for the delivery of military equipment, such as mine detection gear, blasting equipment and night-vision goggles, to Hezbollah. See John Mintz & Douglas Farah, Small Scams Probed for Terror Ties, WASH. POST, Aug. 12, 2002, at A1.
Finally, paramilitary groups in Northern Ireland fund their activities through sales of among other things, pirated versions of the Disney movie, The Lion King. See IACC, supra note 51, at 20-28.
57 IACC, supra note 51, at 3. In one raid in New York City of a Chinese organized crime organization, federal official seized $4 million of counterfeit goods carrying the names of Chanel, Gucci and Coach. Id. at 16. In July 2002, police in Queens, New York seized 5,000 fake Rolex watches and Mont Blanc pens used in the connection with the laundering of drug money. Id. at 18.
58 See USTR Schwab Speaks to U.S. Chamber of Commerce on Greater Cooperation with Russia. China to Curb Piracy. Counterfeiting, U.S. FEDERAL NEWS, Sept. 28, 2006.
59 UNITED STATES DEPARTMENT OF JUSTICE, REPORT OF THE DEPARTMENT OF JUSTICE'S TASK FORCE ON INTELLECTUAL PROPERTY App. C-3 (October 2004).
60 Special 301 2006, supra note 4, at 2.
61 Transshipping is when goods are made in one nation, but labeled and shipped as if they were made in another country. See CHOATE, supra note 27, at 89. Often, the goods will be shipped from the country of manufacture to another intermediate country, only to be transferred to another ship and sent right back out to sea.
Special 301 2005, supra note 17, at 4. So, for example, a retailer might order something from China, but the goods arrive in boxes from Nigeria with tags reading "Made in Nigeria." These goods have probably been transshipped to avoid U.S. quotas on importing or to take advantage of weak customs laws at the transshipping point. CHOATE, supra note 27, at 91 (2005) (discussing how transshipping avoids quotas). Special 301 2006, supra note 4, at 7 (discussing how transshipping takes advantage of weak customs laws).
62 A free trade zone is a geographic area considered to be outside the boundaries of a nation's customs territory and therefore the nation does not collect import duties or taxes. Free trade zones are conduits for counterfeit goods. Most free trade zones are established to promote legitimate trade by allowing countries to ship and
handle goods with minimal regulation and oversight. Unfortunately, pirates abuse free trade zones by using them as a site to manufacture counterfeit goods. The USTR has received complaints about free trade zones in the United Arab Emirates, Belize, Canada, Latvia, Lithuania, Paraguay and Ukraine. Special 301 2006, supra note
4, at 7. In addition, North Korea established a free trade zone in Rajin, a run-down port city, more than a decade ago, which has come under suspicion for tobacco counterfeiting. Fairclough, supra note 46, at B1.
63 The term "Special 301 Report" is actually a holdover from the Omnibus Trade and Competitiveness Act of 1988, which included unilateral trade sanctions on developing countries for violating U.S. patent law. Under Section 301 of this Act, the U.S. Trade Representative would place countries with objectionable intellectual
property practices on its "watch list" and threaten them with trade sanctions. NARLIKAR, supra note 2, at 82. Today the "watch lists" have transformed into a tool for measuring a WTO member country's progress in implementing their TRIPS obligation. Special 301 2005, supra note 17, at 4.
64 Special 301 2006, supra note 4, at 15.
65 Id. at 2.
66 Ruth L. Gana, Has Creativity Died in the Third World? Some Implications of Internationalization of Intellectual Property, 24 DENV. J. INT'L L. & POL'Y 109, 121, 138 (1995).
67 FINGER, supra note 26, at 1, 3. See also NARLIKAR, supra note 2, at 83 (noting that most of the standards set through the GATT were also based on the interests of the developed countries).
However, some commentators contend that there was significant pressure for non-industrialized countries to adopt laws similar to industrialized countries, even before TRIPS, in order to ward off pressures from foreign IP interests and to avoid retaliatory measures related to the then-existing bilateral agreements. Thus, some industrializing countries may have been persuaded to adopt the Western rules of IP prior to TRIPS. See ENDESHAW, supra note 20, at 6-7.
68 Cynthia M. Ho, Who Deserves the Patent Pot of Gold?: An Inquiry into the Proper Inventorship of Patient-Based Discoveries, 7 DEPAUL J. HEALTH CARE L. 185, 189 (2004).
69 Article 27 of TRIPS addresses patentable subject matter. This article further dictates that patents are available without discrimination as to the field of technology, but individual signatories are permitted to "exclude from patentability" certain inventions. The list of permissible exclusions includes many, but not all, of the types of inventions that had been excluded in Europe prior to TRIPS. 1-1 DONALD S. CHISUM, CHISUM ON PATENTS § 1.01 (2005).
70 Id. at § 1.01 (patentable subject matter), § 2.01 (originality), § 3.01 (novelty), § 4.01 (utility), § 5.01 (non-obviousness).
71 Nusrat Khaleeli & Dennis Fernandez, Patent Prosecution in Pharmacogenomics, 88 J. PAT. & TRADEMARK OFF. SOC'Y 83, 85 (2006).
72 1-2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.01 (2005) (subject matter of copyright).
73 2-8 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8 (2005) (The Nature of the Rights Protected by Copyright).
74 UNITED STATES DEPARTMENT OF JUSTICE, supra note 58, at 2.
75 1-1 ROGER M. MILGRIM, MILGRIM ON TRADE SECRETS § 1.01 (2005).
77 Gana, supra note 65, at 116.
79 CHOATE, supra note 27, at 26. One important question is whether or not intellectual property is fundamental to the national development of non-industrialized countries as well.
80 John Smillie, Patentability in Australia and New Zealand Under the Statute of Monopolies, in International INTELLECTUAL PROPERTY AND THE COMMON LAW WORLD 211, 212-13 (Charles E. F. Rickett & Graeme W. Austin eds., 2000).
81 Id. at 217-19. The United States allows such patents on living things, but other European countries do not.
82 CHOATE, supra note 27, at 233. For example, nations may exclude diagnostic and therapeutic techniques, surgical methods, plants, animals, and biological processes for the production of plants and animals. Id. See also TRIPS Agreement, supra note 1, Article 27 at 3.
83 3-8D MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8D.01 (2005).
86 17 U.S.C. § 106A (2000).
87 Nusrat Khaleeli & Dennis Fernandez, Patent Prosecution in Pharmacogenomics, 88 J. PAT. & TRADEMARK OFF. SOC'Y 83, 85 (2006).
89 "As a country, nineteenth century America was akin to a present-day underdeveloped nation which recognizes its dependence on those more commercially and technologically advanced, and desires the fruits of civilization in the cheapest and most convenient ways." JAMES J. BARNES, AUTHORS, PUBLISHERS AND POLITICIANS: THE QUEST FOR AN ANGLO-AMERICAN COPYRIGHT AGREEMENT 1815-1854 50 (Routledge & Kegan Paul, London, 1974).
90 ENDESHAW, supra note 20, at 99.
91 Id. at 99-101.
92 Id. at 153, 160-61. Recounting that Ghana's Companies Act was the English Act of 1862, Nigeria's that of 1908, Sierra Leone's that of 1929, and in Gambia that of 1948. Therefore, the colonies who gained independence later actually had the more recent legislation. Id. It is interesting to note that under the British tradition, there was usually deference to local customs and practices as long as they were not "repugnant" to justice or morality. However, the French, Portuguese and Spanish were notorious for completely obliterating all local laws and customs. But these differences did not matter much for intellectual property laws, since such laws had little basis in the indigenous environment and prior to their colonization, most of the colonies did not have such laws at all. Id. at 160-61.
93 Id. at 99-101. Former colonies kept many other types of laws as well.
94 Id. at 224-25.
95 From 1971 to 1997, this country was called Zaire.
96 Id. at 99-101.
97 ENDESHAW, supra note 20, at 100.
98 Id. at 152.
99 Id. at 152-53.
100 Id. at 46-47.
101 Gana, supra note 65, at 131.
104 MICHAEL F. BROWN, WHO OWNS NATIVE CULTURE? 45-46 (2003).
105 Id. at 45-46.
106 Finger, supra note 26, at 20.
107 See Gana, supra note 65, at n.81.
108 Id. at 127-28.
109 Daniel Wüger, Prevention of Misappropriation of Intangible Cultural Heritage through Intellectual Property Laws, in POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES 1, 194 (J. Michael Finger & Philip Schuler ed., 2004).
110 Id. at 194.
112 Finger, supra note 26, at 6-7.
113 Id. at 62.
114 Wüger, supra note 106, at 189-90.
116 Gana, supra note 65, at 132.
117 MARLIN-BENNETT, supra note 2, at 13.
119 Gana, supra note 65, at 132.
120 Id. Stewardship is defined as the act of managing another's property, finances, or other affairs. See THE AMERICAN HERITAGE COLLEGE DICTIONARY 1356 (4th ed. 2002).
121 Gana, supra note 65, at 132.
123 W. E. BUTLER, SOVIET LAW 180-181 (2d ed. 1988).
124 BUTLER, supra note 118, at 37-39.
125 Id. at 180-81.
128 Id. at 148, 182.
129 Id. at 183-85, 187.
130 ENDESHAW, supra note 20, at 45.
133 Id. at 269.
134 WILLIAM P. ALFORD, TO STEAL A BOOK IS AN ELEGANT OFFENSE: INTELLECTUAL PROPERTY LAW IN CHINESE CIVILIZATION 30 (1995). The British and the Chinese signed the Mackay Treaty of 1902, which provided that the Chinese would establish government offices where foreign trademarks could be registered for a reasonable fee. The 1903 treaty between the United States and China, China was to provide patent protection for all American patents which did not infringe any previous Chinese invention. Such protection was only supposed to be effective once the Chinese set up their own patent office and adopted patent law. Id. at 37-38.
135 Id. at 45 (internal quotation marks omitted).
136 Burrell, supra note 13, at 200.
137 ENDESHAW, supra note 20, at 64.
138 Burrell, supra note 13, at 200.
139 William P. Alford, Don't Stop Thinking About ... Yesterday: Why There was No Indigenous Counterpart to Intellectual Property Law in Imperial China, 7 J. CHINESE L. 3, 12 (1993).
140 Alford, supra note 131, at 12.
141 See ENDESHAW, supra note 20, at 63.
142 Burrell, supra note 13, at 200.
143 ENDESHAW, supra note 20, at 55.
144 Burrell, supra note 13, at 200.
145 ENDESHAW, supra note 20, at 55.
148 Id. at 55, 59.
149 Id. at 63.
150 Id. at 67.
151 Id. at 69.
152 CHOATE, supra note 27, at 29.
153 ALFORD, supra note 126, at 56-57.
155 BUTLER, supra note 118, at 198-99. The USSR also issued copyrights that were valid for the life of the author plus 25 years. Royalties were paid based on a set scale for the number of books in print and the type of work, not based on individual bargaining skills or sales. The government could also exercise a power of compulsory purchase from an author or his heirs. The government purchased both the works of Karl Marx and Friedrich Engels, authors of The Communist Manifesto under this law. Id.
156 Id. at 199.
157 ENDESHAW, supra note 20, at 76.
158 BUTLER, supra note 118, at 198-99. A patent was issued for 15 years from time of filing the application. Id. at 199.
159 Id. In addition, patent holders could not transfer a license for the patent or use the invention abroad without following a special procedure laid out by the USSR. Id.
160 ALFORD, supra note 126, at 58. These types of inventions include: all inventions made in the course of employment in state-owned enterprises, those concerning national security, or those which "affected the welfare of the great majority of the people."
161 Id. at 59. In fact, China was without a genuine copyright law from 1949 until 1991. Burrell, supra note 13, at 205.
162 Id. at 61. In 1963, the Chinese government cut back on the bonuses, but instead tried to add an element of "fame" to the system to encourage invention. The new (lower) monetary rewards were complemented by a set of honorary rewards ranging from banners and application of one's name to the inventor, to free trips to worker's resorts. Id. at 62.
163 Id. at 57.
164 Alford, supra note 126, at 21.
165 MARLIN-BENNETT, supra note 2, at 39.
166 Alford, supra note 126, at 25.
167 Alford, supra note 126, at 29. See also ALFORD, supra note 126, at 25.
168 Alford, supra note 126, at 32 ("For many, the artistic process itself, accordingly, was understood as a 'spiritual exercise' through which one's moral sense might be both expressed and enhanced.").
169 Id. at 34.
171 MARLIN-BENNETT, supra note 2, at 39-40.
172 Id. at 40.
174 Gana, supra note 65, at 129-130.
175 Id. 135.
176 ENDESHAW, supra note 20, at 217.
179 MARLIN-BENNETT, supra note 2, at 6.
180 CHOATE, supra note 27, at 103. These medicines included Laminal, needed to treat epileptic seizures, Salvarsan, a cure for syphilis, and local anesthetics, such as Novocaine.
181 Id. at 112.
182 Id. at 112, 117.
183 Id. at 112. This idea comes from author Richard Sasuly in his 1947 book, entitled IG FARBEN, which discussed the history of the German chemical cartel of the same name, which dominated the German chemical industry before World War II. The company was suspected of many war crimes during World War II and was considered so corrupt that it was split up by the Allies in 1951.
184 Id. at 104. For example, just because the German government did not grant patents for chemical formulas at home, did not mean that the government did not encourage German scientists to get formula patents in the United States. In fact, at the beginning of World War I, when German chemicals were cut off, U.S. companies tried to fill the void, but the German companies blocked them because the German-held U.S. patents remained valid in neutral America.
185 Compare Bryson Act, ch. 950, 66 Stat. 795 (July 19, 1952) (adopting "process" as patentable subject matter. Previous versions of the statute used the term "art," which was interpreted more or less synonymously with "process") with Act of March 3, 1897, ch. 391, 29 Stat. 692. See Diamond v. Chakrabarty, 447 U.S. 303,
186 ENDESHAW, supra note 20, at 115.
188 Some foreign chemical and agricultural companies tried to patent native Indian plants, in particular biopesticides made from the Neem tree, and basmati rice, in the United States and Europe. The United States and Europe allow patents on some kinds of plants. In particular, the controversy surrounding the Neem tree pesticide involved a process developed by the Indian partner of an American chemical company, W. R. Grace. The Neem tree has been used in India for a variety of purposes including medicines, cosmetics and pesticides for over 2,000 years. Grace had developed a process which stabilized the Neem pesticide increasing its shelf life from a few days to many years. In the mid-1990s, Grace was able to get a patent in both the United States and Europe, but after protests and demonstrations, both patent offices cancelled the patent. There was similar controversy regarding three new varieties of Basmati rice developed and patented in the U.S. by an American company. See FINGER, supra note 26, at 22-23; CHOATE, supra note 27, at 98 (stating that the U.S. Patent Office canceled the patent for a wound-healing preparation made from turmeric).
Recently, as a result of situations like the one described above, India proposed that all patent applicants be required to disclose the origin of any biological matter that they use in their inventions and to obtain the informed consent of the native country. CHOATE, supra note 27, at 99. Farmers in other countries have also become more wary of sharing knowledge of their local important crops with ethnobotanists for fear they will be "borrowed." BROWN, supra note 102, at 104-106 (describing that collecting of plants throughout the world has been crucial to the development of patented varieties of corn, potatoes, sorghum, peanuts and other major crops, as well as historically to the plant which produces quinine, rubber, and many forms of tea). Eventually, the United Nations Commission on Biological Diversity adopted voluntary guidelines in 2002 recommending that patent applicants take these steps. CHOATE, supra note 27, at 99.
189 Under the TRIPS Agreement, developing and Least Developed Countries are given additional time to provide patent protection to all patentable subject matter. See TRIPS Agreement, supra note 1, Article 65, ¶ 4.
190 TRIPS Agreement, supra note 1, Article 27, ¶ 1, ¶ 3.
191 HALBERT, supra note 15, at 120-121.
192 MARLIN-BENNETT, supra note 2, at 160-161.
193 HALBERT, supra note 15, at 120-121.
195 Id. at 121.
196 Michael D. Lemonick, The Iceland Experiment: How a Tiny Island Nation Captured the Lead in the Genetic Revolution, TIME, Feb. 20, 2006, at 50-51. Iceland was settled by a small group of Norsemen and Celts in the 9th century A.D. and has experienced relatively little immigration since that time. As a result, Iceland is one of the most genetically homogeneous countries on Earth and a potential gold mine for isolating genes. The company which took the license in the genetic information is mining the data in search of causes of the world's worst diseases. In the last ten years, the company has discovered more than a dozen genes linked to diseases from stroke to schizophrenia, and in January 2006, the company discovered a gene which boosts the risk of Type 2 diabetes. Yet the company has yet to turn a profit and the program is plagued by a series of lawsuits by Icelandic citizens who want an "opt out" provision to be added to the program.
197 See supra note 68 (referencing what subject matter is patentable under TRIPS treaty).
198 MARLIN-BENNETT, supra note 2, at 64.
199 ENDESHAW, supra note 20, at 115.
200 NARLIKAR, supra note 2, at 82.
201 Id. at 106.
202 HALBERT, supra note 15, at 88.
203 Parallel importation occurs when a country imports goods from another country which the second country purchased abroad. An independent third party purchases the goods and then resells them in the first country. Parallel imports are genuine goods; they are not pirated or counterfeit. However, parallel importation infringes intellectual property rights in countries that do not recognize the "first sale" doctrine. Typically, a patent or copyright holder can profitably engage in price discrimination, selling the same product in Third World markets for a small fraction of the price charged domestically. A. Bryan Baer, Price Controls Through the Back Door: The Parallel Importation of Pharmaceuticals, 9 J. INTELL. PROP. L. 109, 111 (2001). The classic example of this phenomenon is when senior citizens in America purchase prescription drugs from Canada. Seniors buy drugs from Canada at a lower cost because the American pharmaceutical manufacturers are required to sell the drugs to the Canadian distributors at a lower cost. Canada has a centralized government run medical system which does not pay as much for prescription drugs and therefore the American pharmaceutical companies sell the drugs at a controlled price--a much lower one than is offered in the United States. The U.S. currently prohibits parallel importation, but many other countries allow it, including Japan, Cambodia, Thailand, Vietnam and the European Union. PhRMA opposes pending Filipino patent law as undercutting research, FDA WEEK, Aug. 11, 2006.
204 "Compulsory licensing enables a competent government authority to license the use of an invention to a third party or government agency without the consent of the patent-holder, thus reducing the adverse effects of patents on price and availability." Haochen Sun, A Wider Access to Patented Drugs under the TRIPS Agreement, 21 B.U. INT'L L.J. 101, 107 (2003).
205 HALBERT, supra note 15, at 88.
206 Id. at 89.
207 Id. at 103. See also NARLIKAR, supra note 2, at 106-107.
208 CNN.com, AIDS drug court battle dropped (April 19, 2001), http://archives.cnn.com/2001/WORLD/africa/04/19/safrica.drugs/ (last visited Nov. 16, 2006). The pharmaceutical companies withdrew the petition in the wake of a growing "public relations disaster" caused by the case. Patent experts stated that the loss to the drug companies was mostly symbolic since the companies were not making considerable sales in South Africa since most of the population couldn't afford the drugs.
209 CNN.com, S. Africa AIDS case -- a hollow victory? (April 20, 2001), http://archives.cnn.com/2001/WORLD/africa/04/20/safrica.drugs/index.html (last visited Nov. 16, 2006) (pointing out that even the currently discounted prices were too high for the South African government to afford).
210 Evandro Didonet, Brazil in forefront of fight against piracy and AIDS, MIAMI HERALD, Nov. 5, 2005, at A. The Brazilian government is able to meet the demand by producing 8 of the 17 drugs distributed by the program domestically. Brazil has eight domestic drug companies that make AIDS drugs. Thus, only the newer drugs, which are still under patent, must be imported. Although Brazil has never actually issued a compulsory license, many of the big pharmaceutical companies take Brazil's threats seriously because the country has so many domestic producers. See Isabel Teotonio, World looking to Brazil for answers, TORONTO STAR, Aug. 5, 2006 at A20.
211 HALBERT, supra note 15, at 104.
212 Roche eventually cut the cost of Nelfinavir, one protease inhibitor, by 40 percent, saving Brazil $40 million a year. See Teotonio, supra note 197, at A20.
213 HALBERT, supra note 15, at 104. Brazil has since continued to exercise its rights that were reemphasized in the Doha Declaration. In summer 2005, the Brazilian Ministry of Health reached a price agreement with Abbott Labs, the maker of Kaletra. This drug accounts for approximately 1/3 of the purchases made by the Brazilian government under its AIDS program. Didonet, supra note 197, at A.
214 Betsy J. Fowler, Preventing Counterfeit Craft Designs, in POOR PEOPLE'S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES 1, 126-27 (J. Michael Finger & Philip Schuler ed., 2004).
216 Id. While Ahiagble could have filed for a U.S. copyright, he specifically chose not to do so because he felt that it would be wrong for him to have a cultural monopoly on such a design. Id.
217 A World Intellectual Property Organization (WIPO) survey of patents granted in eleven major African countries from 1883-1982 revealed that local inventors made up a low of 0% of patents in Ghana (of 1105 patents granted) to a high of 7.53% in Morocco (of 7284 patents granted). ENDESHAW, supra note 20, at 101-02.
218 ENDESHAW, supra note 20, at 103.
219 HALBERT, supra note 15, at 110-11.
220 ENDESHAW, supra note 20, at 116.
221 NARLIKAR, supra note 2, at 6. These consequences range from international disapproval to compensating all other members for the costs they incur as a result of a particular country's action to direct retaliation (i.e. higher tariffs on goods from the country that is pulling out). Id.
222 See id. at 25. To become members of the WTO, all countries, including developing ones, were required to accept the whole package, also known as the "Single Undertaking." In order to take advantage of all the new opportunities opened up by the WTO, the developing countries had to agree to endure the potential costs as well.
223 FINGER, supra note 26, at 34.
226 Pirate Movie Mogul Gets Life in Jail, Chinadaily.com.cn, at http://www.chinadaily.com.cn/china/2006-11/24/content_741576.htm. (last visited Nov. 27, 2006).
227 Burrell, supra note 13, at 215-220.
228 J. Michael Finger points out that novelty is not foreign to knowledge of non-industrial people, rather those people need assistance in helping them master the commercial and legal tools to collect the value of their novelty, by repackaging the novelty into products that can be protected by IP laws and are useful for consumers
in mass markets. FINGER, supra note 26, at 35.
229 William New, Intellectual Property: WIPO Treaty Drafter Seeks New Ways to Address Piracy, NAT'L J. TECH. DAILY (Dec. 20, 2002).
232 NARLIKAR, supra note 2, at 63-66.
233 Id. at 57-58. More recent members to the WTO have been required to give up rights as part of their accession package. For example, in 2003, Cambodia was required to give up the use of generic medicines in order to join the WTO. As a result of the accessions, Cambodia was admitted with Least Developed Country (LDC) status. Id. at 57. Ironically, under the Doha Public Health Declaration of 2001, all the pre-existing LDCs were exempted from this requirement until 2016.
234 Least Developed Country is defined by the United Nations (UN) as meeting all three of the following requirements: less than $750 gross domestic product per capita; human resource weaknesses; and economic vulnerability. The UN lists a total of fifty countries as LDCs. NARLIKAR, supra note 2, at 9.
235 As well as tuberculosis and malaria. World Trade Organization, Ministerial Declaration of 14 November 2001, WT/MIN (01)/Dec/2, 41 I.L.M. 755 (2002).
236 Under the existing TRIPS language, members were only supposed to grant compulsory licenses if a long list of conditions was met. One of the conditions is a requirement that the member make "efforts to obtain authorization from the right holder [the patentee] on reasonable commercial terms and conditions and such efforts have not been successful within a reasonable period of time." This condition can be waived if the member has a "national emergency" related to public health. TRIPS Agreement, supra note 1, Art. 31 (b). The Doha Declaration essentially confirms that it is the member country which determines when such a national emergency is taking place.
237 CHOATE, supra note 27, at 192.
238 See 17 U.S.C. § 1204 (listing the criminal offenses and penalties for violating the Digital Millennium Copyright Act (DMCA)).
239 CHOATE, supra note 27, at 29, 41-42 (describing the laws of the United States, specifically the Patent Act of 1793 and the Copyright Act enacted on May 31, 1790). Ironically, while the U.S. did not recognize the rights of English authors and vice versa, one English critic justified this situation when he stated, "And just who
would want to read the works of an American author?" Id. at 42.
240 Id. at 138-168 (describing the deal in the 1950s between the Radio Corporation of America (RCA) and the Japanese technology companies). For example, in the 1950s, Radio Corporation of America (RCA) gave Japanese companies cutting-edge radio and television technology, market information and advanced production
knowledge in exchange for royalties on every product they sold. The Japanese companies then formed a cartel to control the market. The cartels convinced their government to ban all foreign-made radios and televisions from its home market. This ban allowed the companies to over charge for the product domestically while charging below-market rates for the product overseas. This predatory dumping eventually drove the American manufacturers out of business. Even more than two decades later, the RCA was still making more than $200 million annually in royalty payments. Today, there is no major manufacturer of televisions left in the United States; the last one was Zenith. The RCA trademark is now owned by a French company, Thompson, and the Korean conglomerate, LG Electronics, owns the Zenith trademark. Id. at 162.
241 Geoffrey Fowler, China's Logo Crackdown, WALL ST. J., Nov. 4, 2005, at B1.
242 MARLIN-BENNETT, supra note 2, at 244.
243 Steven Gray, Nigeria On-Screen: Nollywood Films Popularity Rising Among Emigres, Wash. Post, Nov. 8, 2003, at E1.
244 According to Dan Ikenson, analyst for the Cato Institute, "Just 5% of the world's consumers live in the U.S. If we want to grow business and the economy we need better access to foreign markets." Lauren Etter, Hot Topic: Will the New Congress Shift Gears on Free Trade?, WALL ST. J., Nov. 18-19, 2006, at A7.
245 FINGER, supra note 26, at 28.
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