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Globalizing Intellectual Property Rights: Asian Resistance and US Pressure

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Over the last twenty years, the U.S. government has repeatedly clashed with Asian countries over their intellectual property laws and enforcement. Arguing that weak Asian intellectual property laws fail to adequately protect the intellectual property of its citizens, the U.S. government has regularly threatened to impose trade sanctions unless Asian intellectual property rights (IPRs) are strengthened. These hard-nosed threats have been accompanied by some remarkable rhetoric: Asian countries should readily agree to take the IPR medicine prescribed by the U.S. because it will improve the health of their own economies. Asian governments have responded to these threats by gradually strengthening their IPRs, but they have also objected to the rhetoric, arguing that the U.S. IPR prescription is more like Jonestown kool-aid than strong medicine.

The clash over the wisdom of stronger Asian IPRs raises two fundamental sets of questions. Most importantly, will developing countries in Asia be harmed or helped by stronger IPRs? Discussions regarding the impact of U.S. policy on IPRs naturally raise the issue of the source of U.S. interest in Asian IPRs. Why has the issue of Asian IPRs assumed such a prominent position in U.S. foreign policy?

To set the stage for discussing these questions, we should first consider the economic rationale for individual countries to establish property rights in new technologies and creative works.1 We must then consider the problems that arise when countries have different IPRs and discuss the worldwide harmonization of IPRs brought about by U.S. pressure and, more recently, by the provisions of the Trade Related Intellectual Property Rights Agreement (TRIPS).

THE SEVEN MAJOR IPRs

There are seven major forms of intellectual property, each of which is governed by its own legislation and a body of judicial decisions interpreting the law.

1. A patent provides the holder with the right to exclude other parties from using, selling or manufacturing the product or process described by the patent for a specified number of years. A patent is not intended to protect new knowledge, rather the embodiment of knowledge in new products or manufacturing processes. Examples include pharmaceuticals and the antilock brake system.

2. A copyright provides the holder with the right to exclude others from reproducing the expression of an idea, such as a book, a song, or a painting. It does not protect the idea.

3. A trademark establishes rights to a brand name or mark and excludes others from using them without permission. Pepsi, Levis, and Pokeman are examples of trademarks.

4. A trade secret, such as the recipe for CocaCola, is information critical to the success of the business that the holder chooses to keep confidential. Trade secret protection provides a barrier against the appropriation of such information by competitors or potential competitors.

5. A mask word protects certain aspects of the design of a semiconductor chip and is essentially a specialized type of copyright protection for semiconductor chips.

6. Plant breeders rights grant exclusive rights to the holder to use and distribute new and clearly distinguishable varieties of plants.

7. Finally, an industrial design grants the holder exclusive use of designs for such products as clothing, furniture, appliances, etc.