Intellectual Property Enforcement in Asia: A Reality Check

Abstract

In recent decades, Asian nations have raced against each other in enacting the latest intellectual property (IP) laws borrowed from the West on the assumption that the laws would function in the same manner as those in the West. However, the Asian nations` dismal record of implementation of IP laws has become apparent and turned into a source of dispute with their trading partners, chiefly the US, the European Union (EU) and Japan. The fundamental reason for the impasse in enforcement of IP in Asia, as elsewhere in the non-industrial world, lies in the huge economic and technological gap between them and those of the industrial nations. Historically, the need for international protection of IP grew out of the desire of a few West European states in the early 19 century to stop imitations of creative products of their citizens beyond national borders. The first form of such protection was therefore an attempt to suppress, within national borders, illegitimate products affecting businesses operating beyond those borders. The major concern of countries that became parties to IP treaties (whether bilateral, earlier on, or multilateral, from the 1880s onwards) was not however about providing the same level of protection among treaty-members but extending any available measure or form of protection to non-nationals. The recognition and extent of international protection ultimately hinged on the assimilation of non-national goods to those produced within the national borders. th The forms and scope of international IP protection changed dramatically with the introduction of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). What TRIPs did was to provide a level of cross-border protection that may or may not have been existing previously within the national setting. In other words, TRIPs substituted a structure and mode of protection that never considered the necessity of linking with or extending national IP forms and scopes as a pre-condition. In short, TRIPs became instrumental in planting a veritable disconnect between the IP laws of non-industrial countries (Non-ICs) and their social and economic conditions. It did not proceed from the nation-state`s willingness or determination to have forms of protection adequate for its needs (with the discretion of not introducing any if it did not deem such to be necessary) but regardless of such needs. The pressure on Non-ICs to legislate on a par with the major industrial nations (disguised as compliance with TRIPs requirements), lest they be treated as outlaws and pirates or the like, burdened them with an obligation unheard of in international law-that nations must be willing to take on board legal standards and measures even if the latter might be detrimental to their own domestic interests. The obligation to adopt standards and measures consonant with the requirements of the major industrial states but not necessarily with those of the Non-ICs was not only a major blow to the pursuit of development in Non-ICs but also a deadweight they have to carry forever. The circumstances in which most non-industrial nations were forced to forego their domestic interests and accede to treaty obligations without being given corresponding minimal benefits deserving of sovereign contracting parties lies at the bottom of the disconnect in the protection of IP internationally. The denial of the prerogative of non-industrial nations as purportedly full sovereigns in international law to demand or foster mutually beneficial arrangements in IP protection has generated the disconnect and fuelled the continuity of so-called piracy across the non-industrial world. This paper attempts to examine whether and how Asian nations have succeeded in managing the disconnect. It starts, in section 1, with a survey of the common misperceptions about the role of IP. Section 2 then attempts a brief appraisal of the conflicting interests and forces that condition the level, or lack, of IP lawmaking and enforcement in Asia. Section 3 briefly looks at the external pressure on Asian Non-ICs in both IP lawmaking and enforcement. Section 4 traces the signs of change in IP enforcement in Asia. The paper concludes that, despite some emerging signs of change in attitudes and levels of IP enforcement, the very same issues will remain at the forefront of IP in Asia and as a major source of dispute with the US and, to a lesser extent, the EU and Japan. It stresses that progress will continue to elude all parties, whether Asian or foreign.