Page 1 of 9Elizabeth V. Cardoza and Lawrence Liang
Intellectual property (IP) is acknowledged to be a key component of businesses, including those related to or based on information and communication technologies (ICTs) which today constitute a key growth area in Asia Pacific economies. The key forms of IP that impact ICT industries are usually copyright and patents. But increasingly, trademarks, industrial designs and integrated circuit designs are becoming significant focal points. Other key issues are indigenous knowledge, data protection and privacy, and competition policy issues. Thus, when legislating IP laws, policymakers will need to take account of ICT infrastructure, have a basic understanding of the nature of the new technologies, and review consumer protection, licensing and competition policy developments. They need to ensure that IP policies and laws address and reflect national, social and cultural requirements.
IP has had a chequered and contested history in most countries in Asia Pacific. In the early days of the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a number of developing countries felt that the linking of IP to trade and the standardization of IP laws was an agenda that developed countries in the north were attempting to impose on them (Correa 1997). TRIPS, which was negotiated in 1994 at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), lays down the minimum global standard that has to be met by national laws on IP rights, such as copyright, patents and trademarks. The obligations under TRIPS apply equally to all WTO member states. However, developing countries were allowed extra time to implement the applicable changes to their national laws. The transition period for developing countries expired in 2005 while the transition period for least developed countries has been extended to 2016.
Many countries in the global south, including Brazil, India and Thailand, resisted many aspects of TRIPS on the grounds that they would benefit developed countries in the north far more than those in the global south as a result of the economic and technological imbalance between them (Drahos and Braithwaite 2002). Because developing countries are net importers of IP rights, there were serious concerns that the new IP regime would impose a heavy cost with respect to transfer of technology and the development of indigenous technological capabilities. Almost every region in Asia Pacific has at some point or other been accused of not providing adequate protection to IP rights. It is also a fact that most countries in Asia Pacific that have developed strong technological capabilities, including Korea, Taiwan, China and India, have built their capabilities on the basis of poor IP rights enforcement (Kumar 2003). As a recent anthology on IP in Asia (Thomas and Servaes 2006, p. 15) points out:
However, with most Asian countries having signed on to TRIPS and become members of the WTO, the current situation is slightly different. Although TRIPS has created a disconnect between the IP laws of non-industrial, developing countries and their social and economic conditions, since TRIPS did not emanate from the willingness or determination of these countries for forms of IP protection adequate for their needs (Endeshaw 2005), these countries are now obliged to ensure that their national legislations are in conformity with the minimum standards set by TRIPS. They are also required to enforce IP laws in accordance with global standards.
IP thus looms as a concern that poses serious dilemmas to policymakers in Asia Pacific who are attempting to balance their obligations in international law with their commitment to economic and social development. Economic development in many parts of Asia has been extremely lopsided. While a few countries, particularly in South Asia and East Asia, have been able to transform themselves into significant players in the information economy, there are many others that remain very much in the periphery of the knowledge economy. Even in countries like Malaysia, India and China, the digital revolution has reached only a very small percentage of the population. Thus, Asia Pacific countries cannot be treated as a homogenous set—an often-ignored fact. There are clearly marked differences, as well as inequalities, among these countries in terms of scientific and technical capacities, social and economic structures and distribution of wealth.
Even within the World Intellectual Property Organization (WIPO), there is now recognition of the importance of harmonizing IP laws with national developmental goals. The WIPO General Assembly has established the Agenda for Development, a long overdue and much needed first step toward a new WIPO mission and work programme. The WIPO Agenda for Development declares that the WIPO Convention should formally recognize the need to take into account the 'development needs of its Member States, particularly developing countries and least-developed countries'. According to the Geneva Declaration on the Future of WIPO, WIPO's functions should not only be to promote efficient protection and harmonization of IP laws, but also to formally embrace balance, appropriateness and the stimulation of both competitive and collaborative models of creative activity within national, regional and transnational systems of innovation.1
This chapter maps out some of the key IP-related issues that policymakers in Asia Pacific will have to address in the coming years, namely: