AFRICA AND THE GLOBAL INTELLECTUAL PROPERTY SYSTEM: BEYOND THE AGENCY MODEL

In: African Yearbook of International Law Online / Annuaire Africain de droit international Online
Author: Ruth L Okediji1
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  • 1 William L. Prosser Professor of Law, University of Minnesota School of Law.

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  • 1 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakech Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 LL.M. 1197 (1994). 2 See, e.g., the thirteen-page bibliography on TRIPS: The IP Mall - Pierce Law Center, Legal Periodical Literature Bibliography Dealing with Agreement on Trade-Related Aspects of Intellectual Property Rights, (http://ipmall.info/hosted resources/ TRIPSbiblio2.pdf). 3 WIPO Copyright Treaty, 20 December 1996, S. Treaty Doc. No. 105-17 (1997), 36 LL.M. 65 (1997). 4 WIPO Performances and Phonograms Treaty, 20 December 1996, S. Treaty Doc. No. 105-17 (1997), 36 LL.M. 76 (1997).

  • 5 Bernard Adler, "The Proposed New WIPO Treaty for Increased Protection for Audiovisual Performers: Its Provisions and Its Domestic and International Implications," Fordham Intell. Prop. Media & Ent. L.J. 12 (2002), p. 1097 ("Like the United States' position during the GATT and WPPT talks, French trade representatives [during the WPPT negotiations] were greatly influenced by their film industry lobbyists."); Lewine Alan, Mudwrestling "Copyright Lawyers: Napster, The RIAA And The Pig Encoder," Temp. Envtl. L. & Tech. J. 11 (2001), p. 20 ("Having failed in 1995-1996 to implement strong copyright protection for easily duplicated digital works, the publishing industry, including software developers, music, television and movie industries, succeeded in having WIPO adopt, and the United States join, a pair of copyright treaties."); Helfer Laurence R., "Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking," Yale J. Int'l L. 1 (2004), p. 29 (describing EU and US response to industry interests during TRIPS negotiations); Baker Brook K., "Arthritic Flexibilities for Accessing Medicines: Analysis of WTO Action Regarding Paragraph 6 of the Doha Declaration on The TRIPS Agreement And Public Health," Ind. Int'l & Comp. L. Rev. 14 (2004), p. 620 (stating that "[r]eacting to competition from generic producers, the U.S. and E.U. pharmaceutical industries played a lead role in TRIPS negotiations."); Okediji Ruth L., "Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement," Emory Int'l L. Rev. 17 (2003), pp. 845-846 (describing industry coalitions' involvement in TRIPS negotiations); Drahos Peter & Braithwaite John, "Intellectual Property, Corporate Strategy, Globalisation: TRIPS in Context," Wis. Int'l L.J. 20 (2002), p. 452 (noting "a growing body of literature that documents the role of private sector actors in shaping TRIPS."); Dinwoodie Graeme B., "The International Intellectual Property Law System: New Actors, New Institutions, New Sources," Am. Socy Int'l L. Proc. 98 (2004), p. 217 ("Scholars and policymakers must recognize the inevitable and potentially useful ability of private actors, nonstate actors, technology, multinational corporations, and national courts to effect the internationalization of intellectual property norms.") 6 Okediji Ruth Gana, "Copyright and Public Welfare in Global Perspective," Ind. J. Global Legal Stud. 7 (1999), pp. 169, 173-175 (describing conflicts between trade and intellectual property, and discussing the asymmetries between the concept of welfare that dominates international trade and the concept of public welfare in copyright law); Okediji Ruth L., "Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement," Emory Int'l L. Rev. 17 (2003), pp. 836-837 ("With regard to intellectual property, then, 'protectionist' efforts to balance intellectual property rights by imposing constraints on enforcement under certain conditions are welfare-maximizing both because they are beneficial to sustained creativity and, in the public health example, because access to health care contributes directly to development."); Gin Elaine B., "International Copyright Law: Beyond the WIPO & TRIPS Debate," J. Pat. & Trademark Off. Soc'v 86 (2004), p. 790 (noting that "trade policy and IP protection often have competing goals, strategies, and cultures"); Warner Mark, Panel, "AIDS Drugs and the Developing World: The Role of Patents in the Access of Medicines," Fordham Intell. Prop. Media & Ent. L.J. 12 (2002), p. 690 (referring to conflict between trade and intellectual property); Keyes Susan Riley, Note, "Process Patents: Protection And Weapon In The Global Marketplace" Suffolk Transnat'l L. Rev. 22 (1999), pp. 723-724 (describing conflicts

  • between trade and patent regimes); Reidenberg Joel R., "Trade, TRIPS and NAF'TA," Fordham Intell. Prop. Media & Ent. L.J. 4 (1993), p. 283 (stating that incorporation of intellectual property rights into NAFTA and TRIPS "adds an inherent tension to trade relations"). 7 See, e.g., Okediji Ruth, "TRIPS Dispute Settlement and the Sources of (International) Copyright Law," J. Copyright Soc'y U.S.A. 49 (2001), p. 585; Abbott Frederick M., "The WTO TRIPS Agreement and Global Economic Development," Chi.-Kent L. Rev. 72 (1996), p. 385; Reichman J.H., "The Know-How Gap in the TRIPS Agreement: Why Software Fared Badly, and What Are the Solutions,'' Hastings Comment L.J. 17 (1995), p. 763; Reichman J.H., "GATT/WTO Universal Minimum Standards of Intellectual Property Protection under the TRIPS Component of the WTO Agreement," Int'l Law. 29 (1995), p. 345; 8 See, e.g., Reichman J.H. & Lange D., "Bargaining Around The TRIPS Agreement: The Case For Ongoing Public-Private Initiatives to Facilitate Worldwide Intellectual Property Transactions," Duke J. Comp. & Int'l L. 9 (1998), p. 11; Sherwood R., "The TRIPS Agreement: Implications for Developing Countries,'' IDEA 37 (1997), p. 491; Perlmutter S. et al., "Copyright And International TRIPS Compliance," Fordham Intell. Prop. Media & Ent. L.J. 8 (1997), p. 83; Reichman J.H., "From Free Riders To Fair Followers: Global Competition Under The TRIPS Agreement," N.Y.U. J. Int'l L. & Pol. 29 (1996-1997), p. 11; Gana Ruth L., "Prospects for Developing Countries under the TRIPS Agreement," Vand. J. Transnat'l L. 29 (1996), p. 735. 9 Conforto D., "Traditional and Modern-Day Biopiracy: Redefining the Biopiracy Debate," J. Envtl. L. & Litig. 19 (2004), p. 382 (stating that TRIPS "was met with strong resistance from developing countries for many years"); Gad Mohamed Omar, "Impact of Multinational Enterprises on Multilateral Rule Making: The Pharmaceutical Industry and the TRIPS Uruguay Round Negotiations," L. & Bus. Rev. Am. 9 (2003), p. 696 (describing India's submission to negotiating group on TRIPS); Ryan Michael P., "Knowledge-Economy Elites, the International Law of Intellectual Property and Trade, and Economic Development," Cardozo J. Int'l & Comp. L. 10, p. 273 (stating that India and Brazil led developing countries' opposition to TRIPS within GATT). See, Zartman William I., International Multilateral Negotiation: Approaches to Management of Complexity (1994)

  • Agreement Between the World Intellectual Property Organization and the World Trade Organization, 22 December 1995, 35 LL.M. 754 (1996). 12 Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, Marrakech Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401, 33 LL.M. 1226 (1994) [hereinafter, DSU]. See Okediji, "TRIPS Dispute Settlement" supra note 7, (2001), p. 598 ("However, the prospect of a 'supranational' copyright law emerging from the numerous multilateral treaties and TRIPS dispute settlement decisions is perhaps more unlikely today than ever before."). 14 Jackson John H., "Introduction and Overview," Int'l Law. 32 (1998), p. 613 (describing "a fundamental amount of certainty or predictability in the [WTO] system"). But see, Steinberg Richard H., "In Shadow of Law or Power? Consensus-Based Bargaining Outcomes on the GATT/WTO," Int'l Org. 56 (Spring 2002), p. 339. The most significant failure has been the ongoing subsidies in agriculture and textiles which has long been a challenge for developing countries. Becker Elizabeth, "Farm Subsidies Again Take Front Seat at the W.T.O.," N.Y. Times, 28 July 2004, p. WI; Aka Philip C., "Africa In The New World Order: The Trouble With The Notion of African Marginalization," Tul. J. Int'l & Comp. L. 9 (2001) pp. 219, 232 (referring to "industrialized countries' huge subsidies on agriculture and textiles"). 16 WTO Report of the Appellate Body on U.S. Complaint Concerning India's Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (19 December 1997), Bernan'sAnnotated Rep. 49, p. 249.

  • 17 Reichman J. H., "Securing Compliance with the TRIPS Agreement after U.S. v India,'' J. Int'l Econ. L. 1 (1998), p. 595. '8 As of 1 June 2005, seventeen disputes have been filed by developed countries against other developed countries, while only nine disputes involve a developing country. WorldTradeLaw.net, All WTO Complaints, Grouped by "Matter," (http://www.worldtradelaw.net/dsc/database/matters.asp) (last visited 1 June 2005). Twenty-six TRIPS disputes have been filed since 1995; eight have been determined. WorldTradeLaw.net, Panel/AB Reports and Arbitration Awards in WTO Disputes Involving the TRIPS Agreement, (http://www.worldtradelaw.net/dsc/database/TRIPS.asp) (last visited 1 June 2005). zo See e.g., U.S. Trade Representative, 2004 Special 301 Report (2004), (http://www.ustr.gov/Document Library/Reports Publications/2004/2004 Special 301/S ection_Index.html). Of course, one should also be careful in accepting the USTR's opinion as a faithful interpretation of a country's compliance with TRIPS. Given the interest in strong protection, it would not be unusual if the USTR's interpretation of a TRIPS obligation is in fact higher than the literal language of the treaty suggests. As noted elsewhere, TRIPS standards, as opposed to rules, create enough ambiguity for interpretive purposes that politically weak countries could easily be "persuaded" to adopt interpretations that exceed the scope of the negotiated clause. See generally, Okediji Ruth L., "Rules of Power in an Age of Law: Process Opportunism and TRIPS Dispute Settlement" in Choi E. Kwan and Hartigan J. (eds.), Handbook of International Trade: Economic and Legal Analyses of Trade Policy and Institutions, 2005, p. 42. 21 TRIPS Agreement, Articles 65, 66. 22 Least-developed countries have an eleven-year transition period from the date of entry into force. This period may be extended upon request. See WTO Secretariat, Guide to the Uruguay Round Agreements 258 (1998), available at (http://www.wto.org/english/ docs_e/legal_e/guide_ur_deving_country _e.pdf). The deadline for least-developed countries to implement TRIPS obligations for pharmaceutical products was extended until 2016. World Trade Organization, Ministerial Declaration [Doha Declaration], WT/MIN (01)/DEC/I; 41 I.L.M. 746 (2002). z3 Increasingly, WTO disputes are settled informally. Leitner Kara & Lester Simon, Note, Comment, and Development, "WTO Dispute Settlement 1995-2004: A Statistical Analysis," J. Int'l Econ. L. 8 (2005), p. 242. See Okediji, "Rules of Power" supra note 20 (noting potential adverse welfare effects of such informal resolution of disputes).

  • 24 Sell Susan K., "What Role for Humanitarian Intellectual Property? The Globalization of Intellectual Property Rights," Minn. J.L. Sci. & Tech. 6 (2004), p. 207 (describing pressure on developing countries to accept "TRIPS-plus'' agreements); Correa Carlos M., "Investment Protection in Bilateral and Free Trade Agreements: Implications for the Granting of Compulsory Licenses," Mich. J. Int'l L. 26 (2004), p. 345 (same); Rovira Juan, Case Study, "Trade Agreements, Intellectual Property, and the Role of the World Bank in Improving Access to Medicines in Developing Countries," Yale J. Health Pol'y, L. & Ethics 4 (2004), p. 402 (describing pressure on developing countries to provide higher levels of patent protection through bilateral trade agreements). See also Vivas-Eugui David, Regional and Bilateral Agreements and a TRIPS-plus World: The Free Trade Area of the Americas (FTAA), 2003, (http://www.quno.org/geneva/pdf/ economic/Issues/FTAs-TRIPS-plus-English.pdf). 25 Jung Youngjin & Kang Ellen Jooyeon, "Toward an Ideal WTO Safeguards Regime - Lessons from U.S.-Steel," Int'l Law. 38 (2004), p. 932, n. 83 (noting that the U.S. has lost four safeguards cases at the WTO); Subedi Surya P., "The Road from Doha: The Issues for the Development Round of the WTO and the Future of International Trade," Int'l & Comp. L.Q. 52 (2003), p. 445 ("The US has already lost a number of anti-dumping cases before the WTO Dispute Settlement Body..."); Tiefenbrun Susan, "Free Trade and Protectionism: The Semiotics of Seattle," Ariz. J. Int'l & Comp. L. 17 (2000), p. 280 (noting that the EU has lost at the WTO). 26 Ganzglass Martin R., "A Common Lawyer Looks at an Uncommon Legal Experience," A.B.A. J. 53 (1967), p. 816 ("Respect for the law and the willingness of the people to use ... existing judicial machinery depends upon the acceptability of the laws being drafted. The maxim that an unenforceable or generally disobeyed law is worse than no law at all is nowhere more true than in a developing nation.") Linarelli John, "The European Bank for Reconstruction and Development and the Post-Cold War Era," U. Pa. J. Int'l Bus. L. 16 (1995), p. 373 ("... it may be worse to have a law that is not obeyed than to have no law at all.") 27 See Okediji, "TRIPS Dispute Settlement" supra note 7, (2001) p. 598; Dreyfuss Rochelle Cooper & Lowenfeld Andreas F., "Two Achievements of the Uruguay Round: Putting TRIPS and Dispute Settlement Together," Va. J. Int'l L. 37 (1997), pp. 276-278 (describing interplay between DSU and TRIPS); Adewopo Adebambo, Essay, "The Global Intellectual Property System and Sub-Saharan Africa: A Prognostic Reflection," U. Tol. L. Rev. 33 (2002), p. 771 ("TRIPS itself is set apart as an important international treaty because of its own dispute settlement mechanism available under the

  • GATT framework"); Gorlin Jacques J., "U.S. Industries, Trade Associations, and Intellectual Property Lawmaking," Cardozo J. Int'l & Comp. L. 10 (2002), p. 10 (arguing that the main reason intellectual property was included in the WTO agreements was to take advantage of the dispute settlement mechanism). 28 See, e.g., World Trade Organization, Council for TRIPS, The Relationship Between the TRIPS Agreement and the Convention on Biological Diversity (CBD) - Checklist of Issues: Submission from Brazil, Cuba, Ecuador, Peru, Thailand, and Venezuela, WTO Doc. IP/C/W/420 (2 March 2004) (highlighting conflicts between TRIPS and the CBD); Wai Robert, "Countering, Branding, Dealing: Using Economic and Social Rights in and around the International Trade Regime", Eur. J. Int'l L. 14 (2003), p. 78 ("Perhaps the most significant recent example of a transnational advocacy strategy in international trade regulation has developed around the impact of the TRIPS Agreement and other trade provisions on the ability of developing countries to address serious public health pandemics associated with HIV/AIDS and tuberculosis. The advocacy network in this context included both domestic and transnational NGOs, and the state governments of a number of developing countries."); Ling Chee Yoke, "Should WIPO handle biodiversity and traditional-knowledge issues?," (http://www.twnside.org.sg/title2/twr171j.htm) (last visited 8 June 2005) (noting that the African Group in the WTO has pushed for an amendment to TRIPS to exclude the patenting of life forms). 29 See e.g., Drexl Josef, "The Critical Role of Competition Law in Preserving Public Goods in Conflict with Intellectual Property Rights" in Reichman Jerome & Maskus Keith (eds.), International Public Goods & Transfer of Technology Under a Globalized Intellectual Property Regime, Cambridge University Press, forthcoming 2005; Fox Eleanor M., "Can Antitrust Policy Protect the Global Commons from the Excesses of IPRs?" in Reichman Jerome & Maskus Keith (eds.), op. cit.; Weissbrodt David & Kruger Muria, Current Development, "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights'', Am. J. Int'l L. 97 (2003), pp. 918-919 (describing how states have restricted trade to protect human rights and environmental interests); Pauwelyn Joost, "A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral Or Collective in Nature?", Eur. J. Int'l L. 14 (2003), p. 938 (stating that countries can contract out of WTO obligations and may do so "to protect the environment, human rights, biodiversity or public health"). 30 "Congress shall have [the] Power ... to promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...." U.S. Const. Art. I, 8, cl. 8. The U.S. Supreme Court stated in dicta that "copyright law like patent statutes, makes reward to the owner a secondary consideration... The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that ... it is the best way to advance public welfare through the talents of authors and inventors." Mazer v. Stein, 347 U.S. 201, 471 (1954); Farber Daniel A. & McDonnell Brett H., "Why (and How) Fairness Matters at the IP/Antitrust Interface," Minn. L. Rev. 87 (2003), p. 1853 ("According to the Supreme Court, benefit to the general public rather than to inventors

  • and writers - or to put it another way, consumer surplus rather than producer surplus - is the ultimate goal of the intellectual property clauses."); Monetti Marco & Laugier Francois, "The Risks of Cyber-Piracy and the Evolution of Intellectual Property Protection," lnt'l Dimensions, Fall 1997, p. 15 (noting that the goal of intellectual property treaties since Berne has been "a balance between the rights of authors and the larger public interest"). TRIPS Agreement, Art. 7 ("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.") 3z TRIPS Agreement, Art. 8 ("1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement. 2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.") 3; Economists differ on the effect of intellectual property rights on innovation and welfare. See Hall Bronwyn H., "Patents and Innovation: Presentation at FTC/DOJ Hearings on Competition and Intellectual Property Law and Policy in the Knowledge-Based Economy (FTC/DOJ, 26 February 2002), (http://www.ftc.gov/ opp/intellect/020226bronwynhhall.pdf) (stating that the evidence does not show clearly that the patent system increases innovation, with the possible exception of the pharmaceuticals, biotechnology, and certain specialized chemicals fields); see also Branstetter Lee G., "Do Stronger Patents Induce More Local Innovation?," J. Int'l Econ. L. 7 (2004), p. 359 (reviewing several studies of the relationship between patents and innovation, and concluding that stronger IPRs do not evoke strong domestic innovation); Boldrin Michele & Levine David, "The Case Against Intellectual Property," Am. Econ. Rev. 92 (2002), pp. 209-212. But see Levin Richard D. et al., "Appropriating the Returns from Industrial Research and Development," Brookings Papers on Economic Activity (1987), pp. 783-820; Cohen Wes et al., "Appropriability Conditions and Why Firms Patent and Why They Do Not in the American Manufacturing Sector," Working Paper (Pittsburgh: Carnegie-Mellon University 1997).

  • 34 See e.g., Reichman Jerome & Maskus Keith (eds.), International Public Goods & Transfer of Technology Under a Globalized Intellectual Property Regime, Cambridge University Press, forthcoming 2005; Kaul Inge, Conceicao Pedro, Le Goulven Katell, Mendoza Ronald U. (eds.), Providing Global Public Goods: Managing Globalization, 2003. 3s Okediji Ruth L., "The Institutions of Intellectual Property: New Trends in an Old Debate," Am. Soc'y Int'l L. Proc. 98 (2004), p. 222 ("The public welfare goal of intellectual property regulation is in the end the universal restraint for all the actors, institutions, and sources of law that vie for equal status with states in the formulation of intellectual property policy."); Okediji Ruth L., "Through the Years: The Supreme Court and the Copyright Clause," Wm. Mitchell L. Rev. 30 (2004), p. 1654 ("Specifically, these panels must develop a jurisprudence of public welfare that will affirm the importance of the public interest in reasonable access to protected works, and that can influence domestic policies in favor of a balanced approach to copyright."); see generally, Okediji, "Public Welfare and the Role of the WTO" supra note 5.

  • 36 For a brief historical treatment of this, see Ruth L. Okediji, "The International Relations of Intellectual Property: Narratives of Developing Country Participation in the Global Intellectual Property System," Sing. J. Int'l & Comp. L. 7 (2003), pp. 320-341. Other treaties have similar language. See, e.g., Article 11 of the International Convention for the Suppression of the "White Slave Traffic", 4 May 1910, 211 Consol. T.S. 45, 103 B.F.S.P. 244: "If a Contracting State desires the present Convention to come into force in one or more of its colonies, possessions, or consular judicial districts, it shall notify its intention to that effect by a declaration which shall be deposited in the archives of the Government of the French Republic." See also, International Convention for the Unification of Certain Rules of Law relating to Bills of Lading 25 August 1924, Art. 13, 120 LNTS 187, 51 Stat. 233. Hiller Lesli P., Recent Decision, "U.S.A. ex rel. Saroop v. Garcia: U.S. Court Finds Extradition Treaty Valid Permitting the Extradition from

  • Trinidad and Toliago of Trinidadian Citizen," N.Y. Int'l L. Rev. 11 (1998), p. 156 (describing application of extradition treaty between the U.K. and the U.S. that was held to cover Britain's colony, Trinidad and Tobago); Jutta Brunnee & Stephen J. Toope, "The Changing Nile Basin Regime: Does Law Matter?," Harv. Int'l L.J. 43 (2002), p. 136 (noting references to the "continued vitality" of colonial treaties). 3s The original Berne Convention was signed on 9 September 1886 in Berne, Switzerland, 12 Martens Nouveau Recueil (ser. 12) 173 [hereinafter Berne Convention]. The subsequent revisions and amendments are as follows: Additional Act and Declaration of Paris, done on 4 May 1896, 24 Martens Nouveau Recueil, (ser. 12) 758 [hereinafter Paris Revision of 1896]; Act of Berlin Revision done on 13 November 1908, 1 L.N.T.S. 243 [hereinafter Berlin Revision of 1908]; Additional Protocol of Beme, done on 20 March 1914 1 L.N.T.S. 243 [hereinafter Additional Protocol of 1914]; Rome Revision, done on 2 June 1928, 123 L.N.T.S. 217 [hereinafter Rome Revision of 1928]; Brussels Revision, done on 26 June 1948, 331 U.N.T.S. 217 [hereinafter Brussels Revision of 1948]; Stockholm Revision, done on 14 July 1967, 828 U.N.T.S. 221 [hereinafter Stockholm Revision of 1967]; Paris Revision of 1971, supra note 1. 39 Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as last revised at Paris on 24 July 1971, 1161 U.N.T.S. 30. 40 Ricketson Sam, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, 1987, p. 79. 41 It should be pointed out with respect to the United Kingdom that self-governing colonies such as India, the Cape, Natal were asked before the Berne Convention was extended to them. Since most African colonies were not self-governing, this same privilege was not extended. 42 France did this in 1930. See Ricketson, supra, p. 791. 43 Id. 44 Id., p. 790. Spain had a few colonial possessions in Africa, including Equatorial Guinea (formerly Spanish Guinea) and part of Morocco (Spanish Morocco). Schaffer Tony L., "The Legal System of the Republic of Equatorial Guinea," in Redden Kenneth Robert (ed.), Modern Legal Systems Cyclopedia, 6 §§ l.l(D) (1)-(2), 1990; Talbot C. Scott, "The Legal System of the Kingdom of Morocco," in Redden Kenneth Robert (ed.), Modern Legal Systems Cyclopedia 6 §§ 1.1(E) (5), 1990. 45 Formally, a protectorate was distinguished from colonies based on a commitment from the Colonial power to recognize local laws and customs although in reality, protectorates

  • and colonies were substantially handled the same way. See Allot Anthony, "The Development of the East African Legal Systems during the Colonial Period" in Low D.A. & Smith Alison (eds.), History of East Africa (1976), pp. 348-349. 46 See, supra note 38. 47 Ricketson, supra note 40, p. 792. The United Kingdom made a declaration with regard to India and Australia (including Papua) in 1912, South Africa in 1920. 48 This is now Ghana. Gyandoh Samuel O. Jr., "The Legal System of Ghana," in Redden Kenneth Robert (ed.), Modern Legal Systems Cyclopedia 6 § l.l(B), 1990. 49 Now part of Zimbabwe. John Redgment, "The Legal System of Zimbabwe," Redden Kenneth Robert (ed.), Modern Legal Systems Cyclopedia 6A § 1.2(C)(2), 1990. 50 Ricketson, supra note 40, p. 792. Article 19 of the original Berne Convention reads: "[1] Countries acceding to this Convention shall also have the right to accede thereto at any time on behalf of their colonies or foreign possessions. [2] They may for this purpose make either a general declaration of adhesion that includes all their colonies or possessions, or expressly indicate only those which are included, or which are excluded." The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986, p. 228 (BIRPI, 1986). The 4 May 1986, Paris Additional Act did not amend the text of Art. 19 of the original Berne Convention. 182 Consol. T.S. 441 (French text). The Act of Berlin, 13 November 1908, moved the language of Article 19 to Article 26, with the addition of a third sentence instructing contracting countries to notify the Swiss government of any declarations made under the article. The Act of Rome, 2 June 1928, Article 26, states in relevant part: "[1] Any country of the Union may at any time in writing notify the Government of the Swiss Confederation that this Convention shall be applicable to all or part of its colonies, protectorates, territories under mandate or any other territories subject to its sovereignty or to its authority, or any territories under suzerainty, and the Convention shall thereupon apply to all the territories named in such notification. Failing such notification, the Convention shall not apply to any such territories. [2] Any country of the Union may at any time in writing notify the Government of the Swiss Confederation that this Convention shall cease to apply to all or part of the territories which have been made the subject of a notification under the preceding paragraph, and the Convention shall cease to apply in the territories named in such notification twelve months after its receipt by the Government of the Swiss Confederation.'' 123 L.N.T.S. 234, p. 261.

  • The Brussels Revision of 26 June 1948, changed the language of Article 26 [1] to read in pertinent part: "[1] Any country of the Union may at any time in writing notify the Government of the Swiss Confederation that this Convention shall be applicable to its overseas territories, colonies, protectorates, territories under its trusteeship, or to any other territory for the external relations of which it is responsible, and the Convention shall thereupon apply to all the territories named in such notification....In the absence of such notification, the Convention shall not apply to such territories,.' Brussels Revision, 26 June 1948, 331 U.N.T.S. 219, p. 243. The Stockholm revision moved the language to Article 31: "[1] Any country may declare in its instrument of ratification or accession, or may inform the Director General by written notification any time thereafter, that this Convention shall be applicable to all or part of those territories, designated in the declaration or notification, for the external relations of which it is responsible." Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, as revised at Stockholm on 14 July 1967, 828 U.N.T.S. 222. The Act of Paris, 24 July 1971, retained that language. Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as last revised at Paris on 24 July 1971, 1161 U.N.T.S. 30. 52 Notwithstanding the failure of classic international law to recognize the sovereignty of non-European peoples, the historical fact remains that they were sovereigns in their own right, existing within particular political, legal and social systems and established in a geographical space. Sovereignty was established if a nation "governed itself, under whatever form, and did not depend on any other nations." Sinha S. Prakash, New Nations and the Law of Nations 13 (1967). Colonial powers even recognized sovereignty of non- Europeans as a means to take their territory by treaty. Orentlicher Diane F., "Separation Anxiety: International Responses to Ethno-Separatist Claims," Yale J. Int'l G. 23 (1998), pp. 28-29 ("While European states acquired sovereignty over some colonial territories through occupation of what was characterized as terra nullius and over other areas through conquest, in most cases transfers of sovereignty from African to European governments were formally effected by bilateral treaties, including treaties of cession and treaties establishing protectorates. Such treaties implicitly recognized that the African rulers who signed them possessed the attributes of sovereignty being transferred, while the treaty form implied a legal equality between the two signatories.") See also, Ngugi Joel, "The Decolonization-Modemization Interface and the Plight of Indigenous Peoples in Post-Colonial Development Discourse in Africa," Wis. Int'l L.J. 20 (2002), p. 330 ("The two Maasai treaties with the British colonialists in 1904 and 1911 were the earliest forms of actual expropriation of land by the colonial 'government' in Kenya. It is ironic, but not surprising, that the British constructed the Maasai as a sovereign group to facilitate carving off land from them.") (footnote omitted). s3 See Roberts Richard & Mann Kristin, Law in ColonialAfrica (1991). ). 54 Okediji, supra note 36; Coombe Rosemary J., "Authorial Cartographies: Mapping Proprietary Borders in a Less-Than-Brave New World," Stan. L. Rev. 48 (1996), p. 1360 ("The very tropes of discovery, invention, naming, and originality that animate modern

  • intellectual property laws emerge from a historical era in which Europeans mapped the world in their own image..."). 55 Anghie Antony, "Finding the Peripheries: Sovereignty and Colonialism in Nineteenth- Century International Law", Harv. Int'l L.J. 40 (1999), pp. 4-5 ("It is explicitly recognized that special doctrines and norms had to be devised for the purpose of defining, identifying, and categorizing the uncivilized, and this was what the jurists of the period proceeded to do, for instance when listing 'conquest' and 'cession by treaty' among the modes of acquiring territory.") Dupuy Pierre-Marie, "Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi," Eur. J. Int'l L. 16 (2005) 1, p. 131 ("This 'Third Worldist' critique, although militant, appears even less contestable upon consideration of the fact that the assembled nations at the Berlin Conference of 1885, for whom universal international law meant 'European public law', did not even attempt to hide their aim: to link the consolidation of their international law to the right they claimed to divide the wealth, natural riches and human resources that existed, in particular in Africa and Asia, amongst themselves.") Gordon Ruth, "Saving Failed States: Sometimes a Neocolonialist Notion,'' Am. U. J. Int'l L. & Pol'y 12 (1997), p. 937 n.172 ("The major legal technique for the imposition of colonialism was the denial of sovereignty to Africans.") Anghie Antony & Chimni B.S., "Third World Approaches to International Law and Individual Responsibility in Internal Conflicts," Chinese J. Int'l L. 2 (2003), p. 84 ("It was principally through colonial expansion that international law achieved one of its defining characteristics: universality. Thus the doctrines used for the purpose of assimilating the non-European world into this 'universal' system the fundamental concept of sovereignty and even the concept of law itself--were inevitably shaped by the relationships of power and subordination inherent in the colonial relationship.") sb See, e.g., Mutua Makau, Human Rights: A Political and Cultural Critique (2002) (arguing that a culture of human rights cannot be imposed paternalistically on non-Western societies by outside powers); Lau Holning, Comment, "Sexual Orientation: Testing the Universality of International Human Rights Law," U. Chi. L. Rev. 71 (2004), p. 1694 ("According to relativists, the existing universalist system forces Western norms upon non-Western states that never underwent the Enlightenment. Relativists liken universalism to colonization due to its imposition of so-called Western values."); Richardson Benjamin J., "Environmental Law In Postcolonial Societies: Straddling the Local--Global Institutional Spectrum," Colo. J. Int'l Envtl. L. & Pol'y 11 (2000), p. 1 (arguing that international environmental law must change to reflect realities of postcolonial societies); Brower Charles N. & Sharpe Jeremy K., Note and Comment, "International Arbitration and the Islamic World: The Third Phase," Am. J. Int'l L. 97 (2003), p. 645 n. 17 (stating that hostility to arbitration in Arab world arose from

  • "[t]he continuing attitude of certain western arbitrators characterized by a lack of sensitivity towards the national laws of developing countries and their mandatory application, either due to ignorance, carelessness or to unjustified psychological superiority complexes"); Gunning Isabelle R., "Arrogant Perception, World Travelling, and Multicultural Feminism: The Case of Female Genital Surgeries," Colum. Hum. Rts. L. Rev. 23 (1992), p. 189 (arguing for a more culturally sensitive approach to non-Western practice of female genital mutilation). See id. Universalism has been advanced by feminists, e.g., Higgins Tracey E., "Anti- Essentialism, Relativism, and Human Rights," Harv. Women's L.J. 19 (1996), p. 89; philosophers, e.g., Rawls John, "The Law of Peoples," in Shute Stephen & Hurley Susan (eds.), On Human Rights: The Oxford Amnesty Lectures, 1993, p. 41 (arguing for universally applicable human rights principles); and legal scholars; Donovan Dolores A. & Assefa Getachew, "Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism," Am. J. Comp. L. 51 (2003), 533 (noting that legal scholars of human rights generally "fall into the universalist camp"). 58 See, e.g., Koskenniemi Martti, "International Law In Europe: Between Tradition And Renewal," Eur. J. Int'l L. 16 (2005) 1 ("The fact that international law is a European language does not even slightly stand in the way of its being capable of expressing something universal."); Volpp Leti, Essay, "Migrating Identities: On Labor, Culture, and Law,'' N.C. J. Int'l L. & Com. Reg. 27 (2002), p. 513 & n.19 (rejecting "Asian values" argument against universal human rights); Kim Nancy, "Toward a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism," Colum. Hum. Rts. L. Rev. 25 (1993), p. 92 (rejecting relativist criticism that women's human rights theories amount to "Western" ideological colonialism); Panikkar Raimundo, "Is the Notion of Human Rights a Western Concept?," Diogenes 120 (1982), p. 75 (arguing that Western notions of human rights conflict with the economic and cultural realities of non-Western countries). 59 Riley Angela R., "'Straight Stealing': Towards an Indigenous System of Cultural Property Protection", Wash. L. Rev. 80 (2005), p. 119 (arguing for the application of indigenous law to protect Native American cultural property); Kuruk Paul, "Protecting Folklore under Modem Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Rights in Africa and the United States," Am. U. L. Rev. 48 (1999), p. 769; Farley Christine Haight, "Protecting Folklore Of Indigenous Peoples: Is Intellectual Property The Answer?," Conn. L. Rev. 30 (1997), p. 1 ; Gana Ruth L., "Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property," Denv. J. Int'l L. & Pol'y 24 (1995), p. 128 ("creativity in indigenous societies of most Third World countries do not 'fit' the model for copyright protection which has captured the landscape of international economic relations in this era.")

  • 60 WIPO Intergovernmental Committee on Intellectual Property & Genetic Resources, Traditional Knowledge & Folklore, Traditional Knowledge-Operational Terms and Definitions 11, WIPO/GRTKF/IC/3/9 (20 May 2002), available at (http://www.wipo.org/documents/en/meetings/2002/igc/pdf/grtkfic3 9.pdf). Oguamanam Chidi, "Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge", Ind. J. Global Legal Stud. 11 (2004), p. 141 ("... the dominant knowledge-protection and reward mechanism is the Western intellectual property regime, which is not designed to account for or accommodate epistemic narratives other than Western science.") Differences between traditional knowledge and the kind of information protected by Western IP regimes include the following: "Indigenous bio-cultural knowledge is said not to constitute original information." Id., p. 143. "[I]t is not considered new." Id. "[I]t is said to be in the public domain.'' Id. It is hard to reduce to written form. Id. 62 Dutfield Graham reviews anthropological work in this area in "TRIPS-Related Aspects Of Traditional Knowledge," Case W. Res. J. Int'l L. 33 (2001), p. 233; see also Coombe Rosemary J., "Culture: Anthropology's Old Vice Or International Law's New Virtue?", Am. Soc'y Int'l L. Proc. 93 (1999), p. 261; Posey Darrell A. & Dutfield Graham, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Cornmunities, 1996, p. 92 (arguing that IP rights are incompatible with the culture of some developing countries). 63 17 U.S.C. §§101(a) (2000) requires fixation. In Australia, "[s]ome form of fixation is required before copyright can subsist in a "work" within the meaning which the statute gives to that term." Geller Paul Edward (ed.), International Copyright Law and Practice,

  • Australia § 2[1] [a] (1988). Canadian copyright law also requires fixation. Copyright Act, Sec. 2 (defining computer program and dramatic work). The Convention leaves it up to each country to require fixation as a condition for protection. See Berne Convention, Art. 2(2). bs See Berne Convention, Art. 2. 66 Authorship is a requirement of U.S. copyright law, (see 17 U.S.C.A. § 102(a) (2000)), but is also recognized in most other countries. See, e.g., Aoki Keith, "(Intellectual) Property and Sovereignty: Notes Toward a Cultural Geography of Authorship", Stan. L. Rev. 48 (1996), p. 1293 (examining the "romantic vision of original authorship that is deeply embedded in the national intellectual property regimes of Western Europe and North America"); Samuelson Pamela, "Comments on Gerald Dworkin's Article on Copyright, Patent or Protection for Computer Programs," in Fordham International Intellectual Property Law & Policy 1, p. 183 (Hansen Hugh C. ed., 1996) (referring to "Romantic concepts of authorship embedded in...Continental European [copyright]"). The construct of authorship has been challenged even in U.S. copyright law. See e.g., Fukumoto Elton, "The Author Effect After the 'Death of the Author:' Copyright in a Postmodern Age," Wash. L. Rev. 72 (1997), p. 903 (criticizing traditional concept of authorship). Some scholars have criticized the incorporation of the notion of authorship in TRIPS. See, Gathii James Thuo, "Rights, Patents, Markets and the Global Aids Pandemic," Fla. J. Int'l L. 14 (2002), p. 261. ("One of the most significant ways in which TRIPS narrows distributional gains is by its overwhelming reliance on a notion of original authorship."); Jaszi Peter, "On the Author Effect: Contemporary Copyright and Collective Creativity", Cardozo Arts & Ent. L.J. 10 (1992), p. 293 ("The ideology of Romantic 'authorship' ... has greater potential to mislead than to guide.") See Ginsburg Jane C., "A Tale of Two Copyrights: Literary Property in Revolutionary France and America," Tul. L. Rev. 64 (1990), p. 991. 68 TRIPS Agreement, Art. 27(1); 35 U.S.C. §§ 101, 102, 103 (2000) (utility, novelty, and non-obviousness, respectively). 69 Professor Reichman Jerome has proposed a liability rule system to protect such incremental improvements. For a description of the liability rule regime, see Reichman J.H., "Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovation," Vand. L. Rev. 53 (2000), p. 1743.

  • The international term of duration for copyright is life of the author plus fifty years. See TRIPS Agreement, Art. 14(5); Berne Convention, Art. 1. Recent extensions of copyright term in the U.S. and E.U. have led many commentators to question the reality of a limited copyright term in developed countries. See, Sonny Bono Copyright Term Extension Act, 17 U.S.C. 304 (2000); Directive on Harmonizing the Term of Protection of Copyright and Certain Related Rights, Council Directive No. 93/98, O.J. L 290/9 (1993). For views critical of term extension, see e.g., Austin Graeme W., "Does the Copyright Clause Mandate Isolationism?" Colum. J.L. & Arts 26 (2002), p. 17; Lessig Lawrence, Free Culture (2004); Editorial, "Coming of Copyright Perpetuity," N.Y. Times, 16 January 2003, p. A28; Adeyanju Yemi, "The Sonny Bono Copyright Term Extension Act: A Violation Of Progress And Promotion Of The Arts," Syracuse L. & Tech. J. (2003), p. 3; Packard Ashley, "Copyright Term Extensions, the Public Domain and Intertextuality Intertwined," J. Intell. Prop. L. 10 (2002), p. 1. 71 "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. § 101 (2000). See Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948) (holding that a mixture of naturally occurring bacterial strains was not patentable because it was merely "part of the storehouse of knowledge of all men".); Diamond v. Chakrabarty, 447 U.S. 303, 310 (1980) ("His discovery is not nature's handiwork, but his own; accordingly it is patentable subject matter under § 101.). See also European Patent Convention, Art. 52(2) (discoveries are not patentable); Ghana Patent Law of 30 December 1992, § 1(3) (http://www.wipo.int/cIea/docs.jMw/pdf/en/gh/gh001en.pdf) (discoveries not patentable); Tunisia Law No. 2000-84 of 24 August 2000, on Patents, §2, (http://www.wipo.int/clea/docs new/pdf/en/tn/tn001en.pdf) (discoveries not patentable). 72 "Broadly conceived, know-how encompasses the 'totality of unpatented knowledge utilized in industry.'" Reichman J.H., "Computer Programs as Applied Scientific Know- How : Implications of Copyright Protection for Commercialized University Research", Vand. L. Rev. 42 (1989), p. 656 & n. 79 (citing Dessemontet F., The Legal Protection of Know-How in the United States of America (2d rev. ed. 1976), p. 11). Also, "[w]hile know-how derives its economic value from the competitive advantages that exclusivity confers, this exclusivity depends on actual secrecy rather than on the grant of any proprietary rights under positive intellectual property law." Id., p. 657. Tehranian John, "All Rights Reserved? Reassessing Copyright and Patent Enforcement in the Digital Age," U. Cin. L. Rev. 72 (2003), p. 94 & n. 183 ("the forms of valuable intellectual property found in the developing world, contained in the folklore, cultural heritage, and biological and ecological 'know-how' of indigenous people, are currently unprotected by the international intellectual property regime. Through its 'overly author-centered vision of intellectual property,' the modern intellectual property regime neglects these 'unacknowledged sources and non-authorial modes of scientific and cultural production."')

  • There is a vast and ever-growing body of literature about traditional knowledge, encompassing issues removed from intellectual property such as land rights, self- determination, and environmental protection. 74 Reichman J.H., "The TRIPS Agreement Comes of Age: Conflict Or Cooperation with the Developing Countries?," Case W. Res. J. Int'l L. 32 (2000), p. 452 ("Resistance to proposals that would protect folklore and native arts under rights related to copyright law, for example, is often couched in terms of avoiding unacceptable deviations from Western legal traditions and doctrinal orthodoxy.") (footnote omitted); Mgbeoji Ikechi, "Patents and Traditional Knowledge of the Uses of Plants: Is a Communal Patent Regime Part of the Solution to the Scourge of Bio Piracy?," Ind. J. Global Legal Stud. 9 (2001), p. 108 ("Given the general appellation of indigenous knowledge as 'traditional knowledge,' there is a pervading notion that it is, as such, incapable of being patented.") Okediji Ruth L., Making Room at the Table: The Protection of Traditional Knowledge at the Interstices of Intellectual Property, International Law, and Human Rights (2003), p.23, special lecture presented at the Centre for Innovation Law and Policy, 16 November 2000, University of Windsor Faculty of Law, Canada, available at (http://www.innovationlaw.org/lawforum/pages/lectureseries.htm). 76 Peterson Kirsten, Recent Development, "Recent Intellectual Property Trends in Developing Countries," Harv. Int'l L.J. 33 (1992), p. 283 ("In fact, traditional knowledge has long been an integral part of drug development. Approximately three quarters of the plant-derived compounds currently used as pharmaceuticals have been discovered through research based on plant use by indigenous peoples. ") (footnote omitted).It should be noted that such contributions could be negative, i.e., the supply of information about what plant and animal life resources do not have valuable properties. This is loosely related to the concept of "dead ends" in U.S. trade secret law. See Restatement (Third) of Unfair Competition § 39 cmt. e.; On-Line Technologies, Inc. v. Perkin-Elmer Corp., 253 F. Supp. 2d 313, 333 (D. Conn. 2003). ("Misappropriation can be proved by evidence of an advantage gained by building upon another's successful secrets or deliberately steering clear of another's developmental missteps and dead ends (with their attendant waste of resources."). 77 Carvalho Nuno Pires (de), "Requiring Disclosure of the Origin of Genetic Resources and Prior Informed Consent in Patent Applications Without Infringing the TRIPS Agreement: The Problem and The Solution," Wash. U. J.L. & Pol'y 2 (2000), p. 400 ("In sum, the national or regional laws of WTO members that restrict access to the genetic resources found in their territory may require that patent applicants indicate, if known, the source of genetic resources directly or indirectly used in obtaining the invention. The lack of that

  • indication by a patent applicant who knew or had reason to know constitutes fraud."); Downes David R., "How Intellectual Property Could Be a Tool to Protect Traditional Knowledge,'' Colum. J. Envtl. L. 25 (2000), p. 274 ("disclosures might also include 'the certification of prior approval of the use by the source country or community.')(citing United Nations Environment Programme, The Convention on Biological Diversity and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): Relationships and Synergies, Conference of the Parties to the Convention on Biological Diversity, 3rd Meeting, p. 26, UN. Doc. UNEP/CBD/COP/3/23 (5 October 1996), (http://www.biodiv.org/cops3/index.html). 78 Streibich Harold C., "The Moral Right of Ownership to Intellectual Property: Part I--From the Beginning to the Age of Printing," Mem. St. U.L. Rev. 6 (1975), p. 1 (discussing history of protection of creative work from ancient civilizations to medieval Europe). For example, Asian countries with markedly different perceptions and attitudes about creativity have successfully utilized the intellectual property system. See Alford William P., "How Theory Does - and Does Not - Matter: American Approaches to Intellectual Property Law in East Asia," UCLA Pac. Basin L.J. 13 (1994), p. 8. 80 The Statute of Anne protected "any Book or Books". 8 Anne, ch. 19 (1710).

  • 81 The first U.S. copyright act in 1790 authorized copyright for books, maps and charts. Act of 31 May 1790, ch. 15, 1 Stat. 124. 82 Copyright does not protect all utilitarian objects, but aspects of utilitarian objects that are separable from the utilitarian aspects are protectable. Mazer v. Stein, 347 U.S. 201, 218 (1954). 83 WIPO Copyright Treaty, 20 December 1996, S. Treaty Doc. No. 105-17 (1997), 36 LL.M. 65, 71 (1997), Art. 11. 84 Crews Kenneth D., "Harmonization And The Goals Of Copyright: Property Rights Or Cultural Progress?," Ind. J. Global Legal Stud. 6 (1998), p. 120 n. 20 (noting significant changes in U.S. copyright standards); Helfer Laurence R., "Adjudicating Copyright Claims Under The TRIPS Agreement: The Case for a European Human Rights Analogy," Harv. Int'l L.J. 39 (1998), p. 357 ("international copyright standards have been evolving incrementally for more than a century").

  • $5 See, e.g., Dreyfuss Rochelle Cooper, Colloquium, "TRIPS-Round II: Should Users Strike Back?," U. Chi. L. Rev. 71 (2004), p. 35 (noting negative effects of commodification); Aoki Keith, "Weeds, Seeds & Deeds: Recent Skirmishes in the Seed Wars," Cardozo J. Int'l & Comp. L. 11 (2003), p. 305 (describing prevailing commodification model and presenting alternatives). 86 Conway-Jones Danielle, "Safeguarding Hawaiian Traditional Knowledge and Cultural Heritage: Supporting the Right to Self-Determination and Preventing the Co-Modification of Culture," How. L.J. 48 (2005), p. 759; Coombe Rosemary J., "Culture: Anthropology's Old Vice Or International Law's New Virtue?," Am. Soc'y Int'l L. Proc. 93 (1999), p. 261 ("By focusing upon intellectual property as the legal and cultural means by which global flows of information are commodified, capitalized upon, managed and policed, I believe, we can adopt a more critical perspective toward so-called information economies."). 87 WIPO Performances and Phonograms Treaty, 20 December 1996, S. Treaty Doc. No. 105-17 (1997), 36 LL.M. 76 (1997); WIPO Copyright Treaty, 20 December 1996, S. Treaty Doc. No. 105-17 (1997), 36 /.Z..M. 65 (1997). The WIPO Internet treaties have been the subject of considerable debate particularly the domestic implementation of the WCT by the U.S. See Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C.); Concerns about the DMCA center on its effects on free speech, privacy and access. Ginsburg Jane, "Copyright Legislation for the Digital Millenium," Colum.-VLAJ. L. & Arts 23 (1999), p. 178 (criticizing the DMCA for its "lack of overall vision for copyright policy".); Cohen Julie, "WIPO Treaty Implementation in the United States: Will Fair Use Survive?," Eur. Intell. Prop. Rev. 21 (1999), p. 236 (arguing that the anti-circumvention and anti-device provisions of the DMCA will likely narrow fair uses); Samuelson Pamela, "Why The Anticircumvention Provisions Should be Revised," Berk. Tech. L. J. 14 (1999), p. 519. Recently, the DMCA model has been introduced to some developing countries via bilateral and regional trade agreements. The recently-concluded U.S.-Australia Free Trade Agreement incorporates DMCA's requirements. Electronic Frontiers Australia, "EFA dismayed by IP Clauses of Free Trade Agreement," 12 February 2004, (http://www.efa.org.au/Publish/PR040212.html). The U.S-Singapore Free Trade Agreement was the first such FTA to do so. Karl Brandy A., "Enforcing the Digital Millennium Copyright Act Internationally: Why Congress Shouldn't Lock in the Current DMCA By Approving the Current Version of the U.S.-Singapore Free Trade Agreement," 23 May 2003, (http://writ. news.findlaw .comlscripts/printecfriendly. pi ?page=/student/20030519 _karl.html).

  • 88 Samuelson Pamela, "The U.S. Digital Agenda at WIPO," Va. J. Int'l L. 37 (1997), pp. 374-375 ("They not only successfully lobbied the Clinton administration, persuading it to moderate or abandon parts of its digital agenda at WIPO, they also attended WIPO- sponsored regional meetings to acquaint other states with their concerns about the draft treaties, and went to Geneva in large numbers to participate informally in the diplomatic conference as observers and lobbyists. These expressions of concern found a receptive audience among many national delegations to the diplomatic conference. In the end, none of the original U.S.-sponsored digital agenda proposals emerged unscathed from the negotiation process, and at least one--the proposed database treaty--did not emerge at all.") See also, Browning John, "Africa 1, Hollywood 0," Wired, March 1997, p. 61. 89 In the aftermath of the HIV/AIDS health crises and the international debate over patent protection for pharmaceuticals, NGO participation in intellectual property issues has remained vibrant. "As industry and non-governmental organizations (NGOs) are of increasing significance in the Organization's work and financial well-being, WIPO continues to expand and enhance its relations with these groups. One hundred and seventy-two NGOs, as well as 65 IGOs and 10 national NGOs have observer status at WIPO." WIPO, General Information, (http://www.wipo.int/about-wipo/en/gib.htm) (last visited 10 June 2005); Helfer, supra note 5, p. 6; Helfer Laurence R., "Human Rights and Intellectual Property: Conflict Or Coexistence?," Minn. Intell. Prop. Rev. 5 (2003), p. 47. 90 Dinwoodie Graeme B., "The International Intellectual Property Law System: New Actors, New Institutions, New Sources," Am. Soc'y Int'l L. Proc. 98 (2004), p. 213 ("The international intellectual property system has become a network of numerous institutions with many new actors, establishing and operating under new structures, and generating a welter of new norms.") See also Helfer, supra note 5, describing importance of NGOs. CPTech, Access to Knowledge Treaty 9 May 2005 draft), (http://www.cptech.org/a2k/consolidatedtext-may9.pdf); UNCTAD, Policy Dialogue on a Proposal for an International Science and Technology Treaty, 11 April 2003, (http://stdev.unctad.org/capacity/treaty.html).

  • 9` See Okediji Ruth, "Welfare and Digital Copyright in International Perspective: From Market Failure to Compulsory Licensing," in Reichman Jerome & Maskus Keith (eds.), International Public Goods & Transfer of Technology Under a Globalized Intellectual Property Regime", Cambridge University Press, forthcoming 2005. 93 Fowler Peter N. & Smith Len S., "Part II - Revisiting Williams & Wilkins v. United States: Defining The Scope Of Fair Use In Research Photocopying," J. Copyright Soc'y U.S.A. 48 (2001), p. 709 ("This benefit is what prompted the creation of a copyright system which favored the advancement of a free society as a whole, by allowing access to information."); Davies Gillian, Copyright and the Public Interest (1994), pp. 173-174 ("[T]he interest of the public, in the sense of the user or consumer, ... [is] in obtaining access as cheaply and easily as possible to information of all kinds."). Baet see Okediji, "Welfare and Digital Copyright" supra note 92 (addressing this issue). 95 Champ Paul & Attaran Amir, "Patent Rights and Local Working under the WTO TRIPS Agreement: An Analysis of the U.S.-Brazil Patent Dispute,'' Yale J. Int'l L. 27 (2002), p.371 ("The focus on local industrial development was also apparent in eighteenth century U.S. and French statutes, which provided for patents on foreign inventions only so long as the invention was worked locally. France would actually revoke a patent grant if the domestic inventor obtained a patent in another country for the same invention. These examples demonstrate that national self-interest and industrial progress, not protection of the rights of an inventor, were the original rationales for patent systems.) (footnotes omitted); O'Rourke Maureen A., "Evaluating Mistakes in Intellectual Property

  • Law: Configuring the System to Account for Imperfection," J. Small & Emerging Bus. L. 4 (2000), p. 170 (stating that "at least in American law, the leading theory probably still continues to be a utilitarian one" that "emphasizes the need to provide incentives to the first comer to create while maintaining a viable public domain from which second comers may draw in improving and building upon the original work"). 96 "The purpose of copyright is to create incentives for creative effort...." Sony Corp. v. Universal City Studios, 464 U.S. 417, 450 (1984); Beams Christian C.M., Note, "The Copyright Dilemma Involving Online Service Providers: Problem Solved ... ForNow," Fed. Comm. L.J. 51 (1999), p. 827 (stating that the "whole purpose of copyright law" is to give incentives to authors "to bring creative works into the public market."); Ciolino Dane S., "Reconsidering Restitution in Copyright," Emory L.J. 48 (1999), p. 31 (noting copyright's financial incentive for authors to create," which leads to "works to which the public has access"); John H. Barton, "Issues Posed by a World Patent System", J. Int'l Econ. L. 7 (2004), p. 346 ("A patent monopoly is justified only if the monopoly is likely to lead to genuine incentives for research and for bringing new products to market."). 97 Lunney Glynn S. Jr., "Patent Law, the Federal Circuit, and the Supreme Court: A Quiet Revolution," Sup. Ct. Econ. Rev. 11 (2004), p. 5 ( "Nevertheless, the continuing tension between private rights and public goods suggests that, even where patents are the best available policy mechanism, we should provide patent protection only if, and to the precise extent, necessary to secure each individual innovation's ex ante expected profitability."); Abramson Bruce, "Promoting Innovation in the Software Industry: A First Principles Approach to Intellectual Property Reform," B. U. J. Sci. & Tech. L. 8 (2002), p. 92 ("The first principles approach thus leads to the following key question: What set of exclusive rights would motivate the optimal level of innovation among the members of a given industry?"); Nance Dale A., "Foreword: Owning Ideas,'' Harv. J.L. & Pub. Pol'y 13 (1990), p. 766 (discussing duration of rights as factor in attaining "optimal degree of incentives to effort"). 98 Boldrin Michele & Levine D. K., "The Case against Intellectual Property," Am. Econ. Rev. 92 (May 2002), p. 209; Shavell Steven & Ypersele Tanguy (van), "Rewards Versus Intellectual Property Rights," J.L. & Econ. 44 (2001), pp. 525-526 and passim (arguing that an optional reward system is superior to the intellectual property rights regime); Grossman Gene M. & Lai Edwin L.-C., "International Protection of Intellectual Property," Am. Econ. Rev. 94 (2004), p. 1635. 99 O'Rourke Maureen A., "Rethinking Remedies at the Intersection of Intellectual Property and Contract: Toward a Unified Body of Law," lowa L. Rev. 82 (1997), p. 1138 n. 2 ("Of course, intellectual property rights -- particularly patent -- have historically been important, albeit more so in some industries than others."); Fuller I.L. "Pep", "Intellectual Property Rights Associated with Biotechnology - An International Trade Perspective,''

  • AIPLA Q.J. 16 (1989), p. 530 (noting importance of intellectual property rights in biotechnology). Chemicals, pharmaceuticals, computers, software, sound recordings, books, movies, and scientific equipment are sectors that "rely heavily on intellectual property (IP) protection." Gutterman Alan S., "The North-South Debate Regarding the Protection of Intellectual Property Rights," Wake Forest L. Rev. 28 (1993), p. 104 n. 104 (quoting Ensley Harry B., "Intellectual Property Rights in the GATT," New Matter 15 (1990), p. 10). 10o Greene K.J., "Abusive Trademark Litigation and the Incredible Shrinking Confusion Doctrine - Trademark Abuse in the Context of Entertainment Media and Cyberspace," Harv. J.L. & Pub. Pol'y 27 (2004), p. 617 n. 48 ("Incentive rationales have become the dominant paradigm used to justify protection for all forms of IP rights, notwithstanding the fact that 'there is little hard data to prove or disprove the assumption that property rights are needed as an incentive or that the amount of creative output in the United States would significantly decrease if property rights were reduced or denied."') (footnote omitted); Perelman Michael, Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity (2002), p. 165 (arguing that innovation does not depend on intellectual property protection); Long Doris Estelle, "First, 'Let's Kill All the Intellectual Property Lawyers!': Musings on the Decline and Fall of the Intellectual Property Empire," J. Marshall L. Rev. 34 (2001), p. 869 ("These examples demonstrate that the economic exploitation guarantees contained in present intellectual property regimes are not required to encourage all innovation.") 101 Parchomovsky Gideon & Siegelman Peter, "Towards an Integrated Theory of Intellectual Property," Va. L. Rev. 88 (2002), pp. 1465-1466 (describing differences among the three main "subfields" of intellectual property protection: copyright, patent, and trademark); Riback Stuart M., "Trademark Issues in Bankruptcy," Trademark Rep. 93 (2003), pp. 875-876 (noting unique features that distinguish trademarks from other forms of intellectual property); Taylor Allyn, "Intellectual Property and Corporate Transactions," J. Proprietary Rts., October 1997, pp. 13, 17 (identifying one aspect in which patents differ from copyrights and trademarks). 102 Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, as last revised at Paris on 24 July 1971, 1161 U.N.T.S. 30; Paris Convention for the Protection of Industrial Property, as last revised at the Stockholm Revision Conference, 14 July 1967, 21 U.S.T. 1583, 828 U.N.T.S. 303; Ricketson Sam, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, (1987), p. 79 (noting that

  • the vast colonial holdings of France, Germany, Italy, Belgium, Spain and the UK effectively extended the Berne Convention worldwide). British colonies in Africa included Uganda, Botswana, Malawi, Nyasaland, Zambia, Zimbabwe, Rhodesia/South Africa, Kenya, Zanzibar, Tanganyika, the Gambia, Mauritius, Sierra Leone, Swaziland, and Nigeria. British Empire: Dominions, Colonies, Protectorates, Protected and Associated States, Mandated and Trust Territories, (http://flagspot.nedflags/gb- colon.html) (last visited 1 June 2005); Okediji, supra note 36, pp. 316 n. 3, and 320-323 (2003); Geller Paul Edward, "International Copyright: An Introduction," in Nimmer Melville B. & Geller Paul Edward (eds.), 2 International Copyright Law and Practice INT (1990), pp. 156-157 (noting Berne's application to developing countries in colonial period). 103 Garfield Alan E., "The First Amendment as a Check on Copyright Rights," Hastings Comment L.J. 23 (2001), p. 592 ("Of course, this notion of finding a balance between property rights and public access is nothing new to practitioners of intellectual property law. The task of striking this balance lies at the heart of the entire field."); Ghosh Shubha, "Toward a Theory of Regulatory Takings for Intellectual Property: The Path Left Open after College Savings v. Florida Prepaid," San Diego L. Rev. 37 (2000), pp. 680-681 ("Intellectual property rights, whether under patent, copyright, trademark, trade secret, or unfair competition law, balance private ownership with public use."); Rose Simone A., "Patent 'Monopolyphobia': A Means Of Extinguishing The Fountainhead?," Case W. Res. L. Rev. 49, (1999), p. 516 (noting balance in copyright, trademark and patent law). 104 Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 33-34 (2003) (describing different spheres of trademark and copyright law); TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 34 (2001) ("The Lanham Act does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity."); Wilhelm Pudenz, GmbH v. Littlefuse, Inc., 177 F.3d 1204, 1208 (11`" Cir. 1999) ("The job of working out this balance is given to patent law, and not trademark law") (citing Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 164 (1995)). As for European cases, see, e.g., British Leyland Motor Corporation Ltd. v. Armstrong Patents Co. Ltd., [1986] A.C. 577 (House of Lords) (noting differences between copyright and patent law); Al Bassam Trade Mark, [1994] R.P.C. 315 (Ch. Div. 1994) (noting how trademark is similar to but distinct from copyright and patent); Kodak AG v. Jumbo Markt AG [2001] E.N.P.R. 11 BG (Switz.), at para. 66 (noting that patent law differs from copyright and trademark law).

  • 105 See Adewopo Adebambo, "The Global Intellectual Property System and Sub-Saharan Africa: A Prognostic Reflection", U. Tol. L. Rev. 33, pp. 750-756 (tracing the "evolution of intellectual property systems in African countries" and noting that "before the turn of this century ... technological development was non-existent and there was a low local level of inventiveness and innovation in which a patent system could operate"). 106 See, e.g., the United Nations Conference on Trade and Development series on Transfer of Technology for Successful Integration into the Global Economy, available at (http://www.unctad.org/Templates/Page.asp?intltemlD=3428&lang= 1). See also United Nations Conference on Trade and Development, UNCTAD Series on Issues in International Investment Agreements, Transfer of Technology (2001), available at (http://www.unctad.org/en/docs/psiteiitd28.en.pdf). Technology transfer is essential to growth: developing countries must "determine how far they can go in adopting market- oriented strategies in order to attract FDI and ensure economic growth, and at the same time assess the extent of the limitations that need to be applied ... Transfer of technology is a microcosmic reflection of this larger issue. Most developing countries, despite strenuous efforts, remain net consumers rather than producers of technology." Id., p. 21. UNCTAD, supra, p. 6. 108 See UNEP, The Intergovernmental Panel on Climate Change, "Methodological and Technological issues in Technology Transfer," available at (http://www.grida.no/climate/ipcc/tectran/index.htm). The term "technology transfer" is defined as the broad set of processes covering the flows of knowledge, experience and

  • equipment amongst different stakeholders such as governments, private sector entities, financial institutions, NGOs and research/educational institutions. The broad and inclusive term "transfer" encompasses diffusion of technologies and technology cooperation across and within countries. It comprises the process of learning to understand, utilise and replicate the technology, including the capacity to choose it and adapt it to local conditions. 109 TRIPS Agreement, Art. 27. The footnote to Article 27 states that "For the purposes of this Article, the terms 'inventive step' and 'capable of industrial application' may be deemed by a Member to be synonymous with the terms 'non-obvious' and 'useful' respectively." ��° For example, in the U.S., the definitions of "new," "useful," and "nonobvious" are well- settled. See, e.g., Roberts v. Sears, Roebuck & Co., 723 F.2d 1324, 1332 (7th Cir. 1983) ("A device is 'new' if its essence has not been disclosed in a prior art device."); Juicy Whip, Inc. v. Orange Bang, Inc., 185 F.3d 1364, 1366 (Fed. Cir. 1999) ("An invention is 'useful' if it is capable of providing some identifiable benefit."); Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17 ( 1966) (in the inquiry into nonobviousness, "the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved."). See Carvalho Nuno Pires (de), "The Primary Function of Patents", U. lll. J.L Tech. & Pol'y (2001), pp. 39-43 (summarizing the history and principles of patent law, including the patent law of Venice adopted in 1474, and England's Statute of Monopolies, enacted in 1623). 112 As many are aware, the global South's reaction to patents on pharmaceuticals for HIV/AIDS was a search for "affordable medicines" through a variety of means, not a solution to address the absence of research and drug development in African countries. Middle income and high income developing countries do have some capacity for drug production, and for those countries patents did constitute a hinderance to production (as opposed to development). See Correa Carlos M., "Public Health and Patent Legislation in Developing Countries," Tul. J. Tech. & Intell. Prop. 3 (2001), p. 31 (describing how patent blocked generic version of HIV drug in Thailand).

  • "3 See Special Issue, "Science & Technology in Southern Africa and East and South Asia", J. Developing Countries 15 (1999), p. 1; Wakhungu Judi Wangalwa, "Science, Technology, and Public Policy in Africa: A Framework for Action," Bull. Sci. Tech. & Soc'y 21 (2001), p. 246 (noting that "globally, Africa is viewed as a scientific and technological backwater."). 114 See generally, Davis Kevin E., "Regulation of Technology Transfer to Developing Countries: The Relevance of Institutional Capacity," Law & Policy 27 (2005), p. 6. 115 See Pardey Philip G., Wright Brian D., Nottenburg Carol, Binenbaum Eran, Zambrano Patricia, "Intellectual Property and Developing Countries: Freedom to Operate in Agricultural Biotechnology", IFPRI Research at a Glance, Brief 3 (2003), p. 5 (noting that "the main constraints ... facing researchers on food crops for the South ... are an increasingly serious lack of investment in developing country research and a lack of local scientific skills to access the rapidly advancing stock of complex modern biotechnologies, whether they are protected by patents or not. See Pardy P.G. and Beintema N.M., "Slow Magic: Agricultural R&D a Century after Mendel," IFPRI Food Policy Report, Washington D.C., 2001. 116 Particularly for scientific research. See id. See also, Nottenburg Carol, Pardey Philip G. and Wright Brian D., "Accessing other People's Technology for Non-profit Research," The Australian Journal of Agricultural and Resource Economics 46 (2002), p. 413.

  • 117 Friedman Thomas, "It's a Flat World, After All," N.Y. Times, 3 April 2005, p. 33 (describing vast improvements in India's infrastructure). "18 See Javorcik Beata Smarzynska, "The Composition of Foreign Direct Investment and Protection of Intellectual Property Rights: Evidence from Transition Economies,'' Eur. Econ. Rev., February 2004, p. 39 (finding that "weak protection of intellectual property rights has a significant impact on the composition of FDI inflows"); Nunnenkamp Peter & Spatz Julius, "Intellectual Property Rights and Foreign Direct Investment: A Disaggregated Analysis,'' Rev. World Econ. 140 (2004), p. 393 ("[S]tronger IPR protection may help induce high-quality FDI."). India attracts outsourced projects because of the availability of skilled labor, low wage workers, and English speakers. See Rai Saritha, "India Sees Backlash Fading Over Boom in Outsourcing," N.Y. Times, 14 July 2004, p. W 1. "9 See Epstein Jack, "Brazil Seeks High-Tech Industry," Dallas Morning News, 1 May 1995, p. 1.D; Ribeiro John, "India's Offshore Outsourcing Revenues Grew 34.5 Percent", Info World, 2 June 2005, available at (http://www.infoworld.com/article/05/06/02/ HNindianrevenue_l.html); Sanger David E., "Singapore Aim: High-Tech Future," Wall St. J., 15 May 1990, p. D1. LANS (Latin America New Service), "Brazil Expects to Reach US$2 Billion in Software Exports in 2007," 10 March 2005, 2005 WLNR 3808259 (Westlaw MAGSPLUS database); EIU ViewsWire: Singapore, "Singapore Politics: From Father to Son," 11 August 2004, 2004 WLNR 13982968 (Westlaw MAGSPLUS database) (describing Singapore as "a rich, high-technology export success"). izo See African Study Meeting on Copyright, 1963, Report, presented by Rev. Ntahokaja J.- B., General Rapporteur, UNESCO Copyright Bulletin XVI (1964), p. 171.

  • 121 rid., p. 171 (stating that the purpose of the meeting was to "assist the African Member States and Associate Members of Unesco in defining the general principles applicable, in their respective territories, to the protection of authors, particularly writers, composers and artists, in respect of their literary, musical and dramatic works and works of the plastic arts.") See also Kaminstein Abraham L., "Global Copyright: Recent International Copyright Conferences in Africa, Europe, and Asia," Bull. Copyright Soc'y 11 (1963- 1964), p. 226 (stating that "the countries attending the meeting were clearly interested in adopting domestic legislation and in considering adherence to the international conventions. All are anxious to import and use copyrighted works.") �zz Id. �zs Id. �za Id. 125 See Kaminstein, supra note 121. 126 See Report, supra note 120, p. 176. 127 Id. 128 In addition to the Berne Convention, there was also the Universal Copyright Convention (UCC). See Universal Copyright Convention, 6 September 1952, 6 U.S.T. 2731, 216 U.N.T.S 132. 129 Id. '3o See Report, supra note 120, p. 185.

  • 131 Id. 132 Id. 133 Id., pp. 185-186. 134 See Berne Convention, Brussels Revision, 26 June 1948, 331 U.N.T.S. 217, Art. 7. �3s Article 20 of the Brussels Act states: The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable." As I have argued elsewhere, this provision reflects the built-in mechanism that ensured that any changes to the Berne Convention would always be in one direction - upwards for more protection. It is this mechanism, not the TRIPS Agreement, which facilitates the one-way ratchet of international copyright that many commentators have criticized as a function of the post- TRIPS era. See e.g., Drahos Peter, "Intellectual Property and Pharmaceutical Markets: A Nodal Governance Approach,'' Temp. L. Rev. 77 (2004), p. 406. (For an analysis of Article 20, its history, current rendition and implications, see Okediji, "Welfare and Digital Copyright" supra note 92. i36 See Report, supra note 120, pp. 185-186. �3� See Sacks Howard D., "Crisis in International Copyright: The Protocol Regarding Developing Countries," J. Bus. L. 1969, p. 128. �3$ The Protocol permitted a developing country to make reservations regarding: 1) copyright term a country availing itself of the Protocol could limit duration to twenty-five years; 2) translation rights - a country could permit any national to obtain a non-exclusive licence to translate a protected work into a national language if the work had not been translated within three years from eth date of first publication; 3) reproduction rights - a country could permit a national to obtain a non-exclusive licence to reproduce or publish a literary or artistic work for educational or cultural purposes if after three years from the date of such publication the work has not been published in the developing country in the

  • original form in which it was created. The exercise of this provision was subject to an obligation to pay the author "just compensation" and an assurance of accurate reproduction; radio diffusion - a country could regulate the conditions under which an author's exclusive right to authorize broadcasts for commercial gain could be exercised but such conditions had to preserve the author's moral rights and not prejudice the right to obtain equitable remuneration; educational and scholastic use - a country could reserve the right to limit the protection of literary and artistic use exclusively for teaching, study and research in all fields of education subject to a right of compensation by the author on terms similar to those given to national authors. �j9 Okediji, supra note 92. See also, Sacks, supra note 137. 140 For a detailed analysis of bulk access concerns of developing countries and reform of the Berne Appendix, see Okediji, supra note 92. See Gervais Daniel J., "The Internationalization of Intellectual Property: New Challenges from the Very Old and the Very New," Fordham Intell. Prop. Media & Ent. L.J. 12 (2002), p. 942; Story Alan, Burn Berne: Why the Leading International Copyright Convention Must Be Repealed, Hous. L. Rev. 40 (2003), p. 763 ("the resulting Appendix to the Berne Convention proved to be of insignificant assistance to the countries of the South. 'It is hard to point to any obvious benefits that have flowed directly to developing countries from the adoption of the Appendix,' Ricketson wrote in 1987, and there is no evidence that the situation has improved in the past fifteen years.") (footnotes omitted). The two African countries are Algeria and Sudan. See the notifications on the WIPO, Treaties Database - Notifications, (http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&search_what=N&treaty_id=15). 142 The reasons for this inertia by most developing countries are varied ranging from weak governments, to the fact that another convention with lower standards directed at developing countries was available to developing countries. See Universal Copyright Convention, 6 September 1952, 6 U.S.T. 2731, 216 U.N.T.S 132. In a post-TRIPs world, the UCC has no application to most developing countries given the mandatory

  • requirement that WTO members comply with the principal provisions of the Berne Convention. See TRIPS Agreements, Art. 9 (1) which states in relevant part "Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto." E.g., Ghana. 144 See Davis, supra note 114, pp. 17-18 (noting that environments with low institutional competency will prefer simple regulatory models which means such countries will likely copy foreign intellectual property laws with little adaptation). ias See TRIPS Art. 13. 146 Okediji, supra. United Nations Development Programme, News Bulletin, 18 October 2004, (http://www.undp.org/dpa/pressrelease/releases/2004/october/prl8oct04.html) ("Every other person in the sub-Saharan region of Africa lives on less than one US dollar a day.") Even in South Africa, the cost of books is high. Hendrikz Francois, "The Book Chain in South Africa," in Roger Stringer (ed.), The Book Chain in Anglophone Africa, 2002 (http://www.inasp.info/pubs/bookchain/profiles/SouthAfrica.html) ("The South African book market is relatively small. It is estimated that only 5 percent of the population could be regarded as a book-buying market. This may be due to illiteracy, leading to the lack of a reading culture, as well as the high cost of books.") (footnote omitted).

  • 148 Id. (noting high cost of paper and other book production costs, as well as number of languages). 149 Prominent literary figures include Akinwande Oluwole "Wole" Soyinka, Nobel Laureate, and Chinua Achebe. Editorial, "Hope in the Land of Dashed Hopes," N.Y. Times, 7 March 2005, p. A16. Prominent African musicians include Sunny Ade, Miriam Makeba, Angelique Kidjo. Vanity Fair, "Portfolio," November 2004, p. 368. Others include Youssou N'Dour, Papa Wemba from the Democratic Republic of Congo and Ismael Lo of Senegal, Walt Vivienne, "A Worldly Senegalese Singer Likes to Stay Home," N.Y. Times, 24 June 1998, p. E2. Afro-pop legend Fela Ransome-Kuti died in 1997. Herszenhorn David M., "Fela, 58, Dissident Nigerian Musician, Dies," N.Y. Times, 4 August 1997, p. B7. 150 See UNESCO Institute for Statistics, "Literacy and Non-Formal Education Section," (http://www.uis.unesco.org/TEMPLATE/html/Exceltables/education/Literacy_Regional_ May2005.xls). 151 Id. 152 Id. 153 Id. 154 See generally, Okediji Ruth L., "Development in the Information Age: Issues in the Regulation of Intellectual Property Rights, Computer Software and Electronic Commerce" (May 2004), (http://www.iprsonline.org/unctadictsd/docs/CS_Okediji.pdf). 155 United Nations, in Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, U.N. Doc. A/59/2005, p. 21 para. 68. Information and communication technologies can significantly contribute to the achievement of the Millennium Development Goals. To fully utilize the potential of information and communication technology (ICT), we need to address the digital divide... 156 Digital Solidarity Fund, From the Digital Divide to the Need for a Worldwide Solidarity Movement, (http://www.dsf-fsn.org/en/02-en.htm), (last visited 8 June 2005): With the latest advances in the development of information and communication technologies, we are witnessing the emergence of a new society, the Information Society, which is transforming public and private spheres and is creating new social, political, economic and cultural opportunities throughout the world. At the same time, this planetary digital revolution leaves out of account millions of men and women - the info poor -, their great majority living in developing countries and in remote rural areas. See also, United Nations, in Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, U.N. Doc. A/59/2005, p. 23: Much of sub-Saharan

  • Africa continues to face a combination of high transport costs and small markets, low agricultural productivity, a very high disease burden and slow diffusion of technology from abroad. All these make it particularly prone to persistent poverty. �5� See, The World Bank, Financing Information and Communication Infrastructure Needs in the Developing World: Public and Private Roles (Discussion Draft), February 2005, p. 5 (http://Inwebl8.worldbank.org/ict/resources.nsf/a693f575eO]ba5f385256b5OO062af05/04 c3ce I b933921 a585256fb60051 b8f5/$FILE/financingICLDraft.pdf); See also, Witchalls Clint, "Bridging the Digital Divide: A $100 Laptop Aims to Bring Equal Technology Opportunities to Children in the Developing World," Guardian, 17 February 2005 (http://www.guardian.co.uk/online/story/0,3605,1415713,00.html): "Obviously the ability to pay for ICT equipment is the largest barrier to access in developing countries, but there are other hurdles too ... [These] include[] electricity, as the supply is often erratic or nonexistent, and transport, as often poor road quality results in a significant percentage of machines being damaged en route. There is also a lack of trained technicians, especially in schools. Without sufficient training and support, IT equipment put in schools is often under utilised, and in some cases entirely redundant. Any meaningful roll-out of IT hardware must be accompanied by training to have any impact. This is even more important for open source software, as it is even more unfamiliar." �s8 See, UNDP, Human Development Report 2001, Chapter 2, Today's Technological Transformations - Creating the Network Age, (http://hdr.undp.org/reports/global/2001/en/ pdf/chaptertwo.pdf). The World Wide Web is too expensive for millions of people in developing countries, partly because of the cost of computers that are the standard entry point to the Web: in January 2001 the cheapest Pentium III computer was $700 - hardly affordable for low income community access points. Further, the text-based interface of the Internet puts it out of reach for illiterate people. 159 See (http://www.wipo.org). 160 See WCT, supra Art. 10.

  • 161 Rowald Kent, Symposia, "2003 Stanford Law & Technology Association Conference,'' Loy. L.A. Ent. L. Rev. 24 (2004), p. 76 ("We have all of these countries, 150 plus countries for the first time, looking at having copyright law when these countries ... have far more significant problems for their people than enforcing copyright property rights from Western interests. We're talking about developing countries. Countries that don't have law enforcement, [that] don't have a stable regime, and so on. What is the public good of enforcing copyright in this manner?"); Hauser Heinz & Wunsch-Vincent Sacha, "A Call for a WTO E-Commerce Initiative," Int'l J. Comm. L. & Pol'y 6 (2000/2001), p. 24 ("This heterogeneity and the resulting lack of transparency are increased by the partly insufficient enforcement of the minimum standards. This is especially the case in developing countries, which either do not have the will or the resources to enforce the obligations they have undertaken.") ibz See TRIPS Agreement, Art. 15(1) 163 Id. 164 See McCarthy J. Thomas, McCarthy on Trademarks and Unfair Competition §§2:33-:35, pp. 2-57 to -65. (4`h ed. 1996, 1) (noting that "one of the chief purposes of trademark law [is] that consumers who rely on a particular trademark to identify products of a certain quality not be misled by a similar or identical mark that does not carry the same guarantee." ibs See e.g., Aoki Keith, "How The World Dreams Itself to be American: Reflections on the Relationship Between the Expanding Scope of Trademark Protection and Free Speech Norms," Loy. L.A. Ent. L.J. 17 (1997), p. 523 ("Western media images are transforming the world and constructing a hegemonic world culture modeled on the rampant consumerism of the United States. 'Advertising and media images exert powerful psychological pressures to seek a better, more 'civilized" life, based on the urban, Western consumerist model. Individual and cultural self-esteem are eroded by the advertising stereotypes of happy, blond, blue-eyed, clean Western consumers.") (citing Norberg-Hodge Helena, "Break Up the Monoculture," Nation, 15 July 1996, p. 22); see also, Leaffer Marshall A., "The New World of International Trademark Law," Marq. Intell. Prop. L. Rev. 2 (1998), p. 6 (describing though not endorsing developing countries' criticisms of trademark regime).

  • ibb `See Aoki, supra note 165. 167 Leaffer, supra note 165, (1998) p. 3 ("In contrast, one finds much less concern over issues involving transnational trademark matters [than over patent and copyright matters].") 168 Gana Ruth L., "Prospects for Developing Countries under the TRIPS Agreement," Vand. J. Transnat'l L. 29 (1996), p. 774. ("In some areas, such as trademarks, developing countries stand to benefit from increased protection which may limit the number of substandard goods circulating in their markets."); Reichman J.H., "Implications of the Draft TRIPS Agreement for Developing Countries as Competitors in an Integrated World Market," United Nations Conference on Trade and Development, Discussion Paper No.73, pp. 18-20, UNCTAD/OSG/DP/73, November 1993 (describing benefits of trademark protection in developing countries). 169 The U.S. has numerous agencies for consumer protection. These include: the Federal Trade Commission (undertaking consumer protection against fraud and other harms; (http://www.ftc.gov/ftc/consumer.htm)), which had a 2004 budget of about $191 million; FY 2004 Congressional Justification Budget Summary, (http://www.ftc.gov/ftc/oed/fmo/ budgetsummary04.pdf); the Consumer Product Safety Commission (CPSC) (mission: "protecting the public from unreasonable risks of serious injury or death from more than 15,000 types of consumer products," (http://www.cpsc.gov/about/about.html)), which has a budget of about $60 million, Doing Business With the Consumer Product Safety Commission, (http://www.washingtontechnology.com/news/18_14/doingbusiness/21909- l.html); and the Environmental Protection Agency (mission: "protect human health and the environment," (http://www.epa.gov/epahome/aboutepa.htm)), which had a 2004 budget of about $7.63 billion. EPA 2004 Budget, (http://www.desertweed.com/pro4.htm). European Commission Health and Consumer. The EU has, among other agencies, its Protection Directorate-General (mission: making EU citizens "healthier, safer and more confident," (http://europa.eu.int/comm/dgs/health consumer/index en.htm)). The EU's 2004 budget for consumer policy and consumer health protection is 22 042 503 Euros, General Budget of the European Union for the Financial Year 2004, p. 14, (http://europa.eu.int/comm/budget/pdf/budget/syntchif2004/en.pdf). 170 The U.S. legal system incorporates civil and criminal penalties as well as private actions for damages, including punitive damages. Kaplan Glenn & Smith Chris Barry, "Patching the Holes in the Consumer Product Safety Net: Using State Unfair Practices Laws to Make Handguns and Other Consumer Goods Safer," Yale J. on Reg. 17 (2000), pp. 259-260 ("The common law tort system, which allows private parties to bring civil actions against the manufacturers or sellers of defective or unsafe goods, serves as a

  • backdrop to federal regulation and an additional layer of protection against unsafe products.") The EU also has strong product safety enforcement. See Howells Geraint G. & Mildred Mark, "Is European Products Liability More Protective than the Restatement (Third) of Torts: Products Liability?," Tenn. L. Rev. 65 (1998), p. 986 ("... all member states of the European Community (EC) have implemented the EC Product Liability Directive of 1985, which requires member states to introduce strict products liability legislation.") 171 Mehri Cyrus, Note, "Prior Informed Consent: An Emerging Compromise for Hazardous Exports," Cornell Int'l L.J. 21 (1988), p. 365 ("As these examples illustrate, many Third World nations, including relatively developed ones, are unable to protect their citizens from dangerous pesticides and consumer products.") It is important to note that trademark owners may not be the producers of the work for liability purposes. However, domestic laws in developing countries could require that a trademark owner who agrees to place his mark on a product is assuming a level of responsibility for the welfare of the consuming public who buys the product. Johnston Lisa H., "Drifting toward Trademark Rights in Gross," Trademark Rep. 85 (1995), p. 21 ("trademark rights stimulate competition to produce quality goods...") (citing McCarthy on Trademarks, supra note 164, §2.01 [2]); Fletcher Patricia Kimball, Comment, "Joint Registration of Trademarks and the Economic Value of a Trademark System," U. Miami L. Rev. 36 (1982), p. 297 (summarizing reasons why trademarks promote competition).

  • 174 For commentary on trademark protection and developing countries, see generally, Ball William H. Jr., "Attitudes of Developing Countries to Trademarks," Trademark Rep. 74 (1984), p. 160; Cornish W.R. & Phillips Jennifer, "The Economic Function of Trademarks: An Analysis with Special Reference to Developing Countries," LLC. 13 (1982), p. 41; Gabay Monique, "The Role of Trademarks in Consumer Protection and Development in Developing Countries," Indus. Prop. 3 (1981), p. 102. See Aoki, supra note 165. 176 Economists have long expressed concern that trademarks unnaturally create demand and consolidate market power. See e.g., Robinson Joan, The Economics of Imperfect Competition (1933), p. 89; Tuerck G. (ed.), Issues in Advertising: The Economics of Persuasion (1978), pp. 161-191.

  • 177 Geographical indications are "indications which identify a good as originating in the territory of a Member [nation], or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin." TRIPS Agreement, Art. 22(1). See Kremers Nancy, "Speaking with a Forked Tongue in the Global Debate on Traditional Knowledge and Genetic Resources: Are U.S. Intellectual Property Law and Policy Really Aimed at Meaningful Protection for Native American Cultures?," Fordham Intell. Prop. Media & Ent. L.J. (2004), p. 133 ("Many developing countries feel that this higher level of protection for wines and spirits should apply to all agricultural goods."); Homere Jean Raymond, "Intellectual Property Rights Can Help Stimulate the Economic Development of Least Developed Countries," Colum.-VLA J. L. & Arts 27 (2004), pp. 296-297, noting that "Developing countries and LDCs can use geographical indications to preserve the traditional goodwill and reputation of members of an established group in lieu of focusing on rewarding innovation per se. Consequently, geographical indications and trademarks or sui generis analogies to them could serve as tools capable of curbing biopiracy, while protecting traditional knowledge for the economic benefit of local and indigenous communities in developing countries and LDCs. The resulting economic benefits from the use of geographical indications would then include an increase in revenues from domestic and export markets for distinctive goods originating from developing countries and LDCs." 178 Gervais Daniel, "Traditional Knowledge & Intellectual Property: A TRIPS-Compatible Approach," Mich. St. L. Rev. (2005), p. 137; Helfer, supra note 5. 179 Maher Michael, Comment, "On Vino Veritas? Clarifying the Use of Geographic References on American Wine Labels," Cal. L. Rev. 89 (2001), p. 1889: "The fundamental purposes of ATF's effort, and all regulatory efforts worldwide, to protect geographical indications, are nearly identical to the purposes for protecting trademarks. Like geographical indications, trademarks are marketing tools whose use is regulated to protect consumers from fraud and to protect the economic interests of producers. Geographical indications, however, differ from trademarks in at least one key respect: geographical indications, by definition, serve to distinguish producers in one region from those in another region; trademarks, on the other hand, serve to distinguish one producer from another, regardless of location." (footnotes omitted).

  • 180 Pardey et aL, supra notes 115, 116. '8' Farber Daniel A. & McDonnell Brett H., "Why (And How) Fairness Matters at the Ip/Antitrust Interface," Minn. L. Rev. 87 (2003), p. 1831 (noting possible harm of "overly strong intellectual property rights" that may lead to "overinvestment and innovation that occurs sub-optimally early."); Okediji Ruth L., "Trading Posts in Cyberspace: Information Markets and the Construction of Proprietary Rights," B.C. L. Rev. 44 (2003), p. 567 (noting unpredictability of IP regulation). 182 Pardey, supra note 115 [IFPRI Research], p. 5 ("failure to invest in the adaptive capacity needed to evaluate, access, and regulate the technologies being developed in the North is currently a far greater constraint [on access to agricultural biotechnologies] than IPRs." '83 See, e.g., Helfer, "Human Rights and Intellectual Property" supra note 89; Nagan Winston P., "International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States," Fla. J. Int'l L. 14 (2002), p. 155; Ullrich Hanns, "Expansionist Intellectual Property Protection and Reductionist Competition Rules: A TRIPS Perspective," J. Int'l Econ. L. 7 (2004), p. 401.

  • 184 Okediji, supra note 92 (discussing judicially created copyright misuse doctrine). See generally Frischmann Brett & Moylan Dan, "The Evolving Common Law Doctrine of Copyright Misuse: A Unified Theory and Its Application to Software," Berkeley Tech. L.J. 15 (2000), p. 865. 186 Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (2003), (http://www.ftc.gov/os/2003/10/innovationrpt.pdf). 187 E.g., administrative instructions to customs officials and police officers; equipping judges with training about rights and access as twin goals of the intellectual property system; developing unfair competition rules that could be used to monitor abuses of proprietary rights. Davis, supra note 114, p. 20 (observing this outcome as one danger of reliance on foreign laws and institutions.) See Okediji, supra note 36 (observing that most developing countries lack mechanisms such as implementing legislation that could serve to translate international intellectual property standards into more meaningful domestic principles).

  • �9o See Okediji, supra note 92 (advocating such redirection).

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