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American Business Law Journal Volume 43, Issue 2, 317363, Summer 2006

Defending Intellectual Property Rights in the BRIC EconomiesRobert C. Birdn

I. INTRODUCTIONProtecting intellectual property rights in Brazil, Russia, India, and China, collectively known as the BRIC economies, has become an important policy focus of the U.S. government. These important emerging economies have not yet fully developed intellectual property protection and enforcement mechanisms. In all four countries, intellectual property infringement ranges from rampant to merely widespread. Nonetheless, U.S. rms cannot afford to ignore the market opportunities in these rapidly growing nations. This presents an obvious quandaryFhow can U.S. companies remain competitive in the BRIC economies while still protecting their intellectual property rights? This article will investigate possible answers to this question. This question holds particular importance in light of a 2003 study titled Dreaming with BRICs: The Path to 2050, published by Goldman Sachs.1 This paper examined growth projections of the BRIC economies from the present date to 2050 relative to long-term projections of the G6

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Assistant Professor, University of Connecticut. I would like to thank Subhash Jain and the University of Connecticuts Center for International Business Education and Research for funding to support the completion of this article. My thanks are given for the comments and support of the attendees of the BRIC Conference held at the University of Connecticut in April 2005. I appreciate comments and support from Dan Cahoy and Leigh Anenson. I gratefully acknowledge research assistance from Christophe Pane and Anne Taylor. An earlier version of this article is forthcoming in a chapter of a book edited by Subhash Jain. All errors and omissions are my own.

Dominic Wilson & Roopa Purushothaman, Dreaming with BRICs: The Path to 2050 (Goldman Sachs, Global Economics Paper No. 99, 2003), available at http://www.gs.com/insight/research/ reports/99.pdf. r Academy of Legal Studies in Business 2006

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countries.2 The authors applied demographic trends to projections of capital accumulation and productivity growth to make their predictions. The results were startling. In less than forty years, the BRIC economies collectively will be larger than the G6.3 Indias economy is projected to be larger than all nations except the United States and China in as little as thirty years.4 China may overtake Germany in economic size within four years, Japan within ten years, and the United States within thirty-ve years.5 India is expected to grow at the rate of ve percent per year for the next thirty years.6 By 2050, only the United States and Japan may be left of the current six largest economies in the world.7 It is reasonable to conclude that over the next forty years the BRIC economies will increasingly inuence the worlds political, economic, and military balance of power. Also, the rise of BRIC power will have significant implications for the international business legal environment. Yet few legal scholarly articles discuss the BRIC economies collectively as an emerging economic force.8 This article focuses on one important legal aspect of BRICs economic growthFthe international protection of intellectual property rights.9 The lack of intellectual property rights protection ranks2 Id. at 3. The G6 was the G8s immediate predecessor. Members of the G6 are generally viewed as the United States, Japan, Germany, France, Italy, and the United Kingdom. For more information on the G8, which includes the G6 plus Canada and Russia, see Prole: G8, http://news.bbc.co.uk/1/hi/world/americas/country_proles/3777557.stm; G8 Information Centre, http://www.g7.utoronto.ca/. 3 4 5 6 7 8

Wilson & Purushothaman, supra note 1, at 4. Id. Id. Id. Id. at 4.

Exceptions to this rule are, for example, Michael Littlewood, Tax Competition: Harmful to Whom?, 26 MICH. J. INTL L. 411, 478 n.278 (2004) and Srividhya Ragavan, The Jekyll and Hyde Story of International Trade: The Supreme Court in Phrma v. Walsh and the TRIPS Agreement, 38 U. RICH. L. REV. 777, 824 n.279 (2004). This article examines intellectual property protections in all four BRIC countries, but places extra emphasis on the Chinese economy. The Chinese economy absorbs the most investment from the United States, is studied the most out of the four economies, and has received the greatest attention from the United States regarding intellectual property rights enforcement. As the Chinese economy appears to be the most advanced of the four, discussions of intellectual property in China will be relevant to the other BRICs as Brazil, Russia, and India follow Chinas economic path.9

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for many rms as the single most significant threat to their international competitiveness.10 This article is divided into ve parts. Part II examines the efforts of the United States to establish intellectual property as a trade issue, develop an international intellectual property regime, and enforce rights of U.S. rms abroad. It also examines the use of the TRIPS enforcement regime and Special Section 301 by the United States to pressure the BRIC countries to adopt higher standards of intellectual property protections. Part III further explores the effectiveness of coercion in protecting U.S. intellectual property rights abroad. This part discusses U.S. reliance on sanction-based measures and the long-term effect of these measures on protecting intellectual property rights. Two coercion-response models are examined: the China Cycle of Coercion and the India Cycle of Coercion. The rst model reects a retaliation-response and the the second model reects a delayed-response reaction to U.S. coercion. This part concludes that while coercion is sometimes necessary, it is not an ideal strategy to sustain the long-term protection of intellectual property rights. Part IV of this article examines the efcacy of unilateral initiatives as a component of a national intellectual property protection strategy. Unilateral initiatives are dened as measures presented to a recipient without an immediate expectation of reciprocation. This part shows that unilateral initiatives are an effective part of any negotiating strategy to improve intellectual property rights internationally. This article concludes that unilateral initiatives have been given insufcient attention in intellectual property rights strategies and should become a part of any measure to protect such rights in the BRIC economies.

II. THE RISE OF THE INTERNATIONAL INTELLECTUAL PROPERTY REGIME AND THE U.S. STRATEGY OF COERCIONDuring the eighteenth and nineteenth centuries inventors desiring patents would be required to simultaneously submit patent applications in all the

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Ilkka A. Ronkainen & Jose-Luis Guerrero-Cusumano, Correlates of Intellectual Property Violation, 9 MULTINATL BUS. REV. 59, 59 (2001).

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countries where the inventor wanted patent protection.11 Failure to do so resulted in nullifying patent protection for all except one of the nations to which the patent was submitted on the grounds that the rst application destroyed the novelty of subsequent applications.12 The lack of global protection became so acute that inventors refused to attend an international exhibition of inventions in Vienna in 1873 for fear of losing their patent rights.13 The lack of international protection of intellectual property rights remained the norm until the passage of the 1883 Paris Convention for the Protection of Industrial Property14 and the 1886 Berne Convention for the Protection of Literary and Artistic Works.15 Among other things, these conventions established the principle of national treatment.16 The national treatment principle requires nations to grant foreign patent holders the same rights given its own citizens. These agreements also required signatories to impose minimum standards of intellectual property protection. Revised and amended extensively over time, these conventions remain the foundation of international intellectual property law.17 Unfortunately, the Paris and Berne Conventions have failed to adequately limit the global piracy of intellectual property. Nations retain broad discretion in granting intellectual property protections despite being

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Gerald J. Mossinghoff, National Obligations Under Intellectual Property Treaties: The Beginning of a True International Regime, 9 FED. CIR. B.J. 591, 593 (2000). Id.

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Id. at 59495 (citing Warren S . Wolfeld, Note, International Patent Cooperation: The Next Step, 16 CORNELL INTL L. REV. 229 (1983)).14

Paris Convention for the Protection of Industrial Property, July 14. 1967, 21 U.S.T. 1583, T.I.A.S. No. 6295, 828 U.N.T.S. 305 [hereinafter Paris Convention]. Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal, Salvador, Servia, Spain, and Switzerland were the original signatories to the Paris Convention. Gregory W. Hotaling, Ideal Standard v. IHT: In the European Union, Must A Company Surrender its National Trademark Rights When it Assigns its Trademark?, 19 FORDHAM INTL L.J. 1178, 1240 n.365 (1996). Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised at Paris July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 [hereinafter Berne Convention].

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Frank Emmert, Intellectual Property in the Uruguay RoundFNegotiating Strategies of the Western Industrialized Countries, 11 MICH. J. INTL L. 1317, 1337 (1990). Id. See also Jason Taketa, Note, The Future of Business Method Software Patents in the Intellectual Property System, 75 S. CAL. L. REV. 943, 958 (2002).

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signatories to these conventions.18 Entire elds of patentable technology, such as pharmaceuticals, biotechnology, and agricultural chemicals, have been excluded from protection.19 Copyrightable documents such as educational materials have also been excluded.20 The duration of patent protection, at times, was so limited as to be only minimally effective in protecting such rights.21 Some countries limited patentability to the process alone and not the end product.22 The result was an international legal environment that failed to protect the most basic of intellectual property rights. Limited intellectual property rights protection and the lack of any real harmonization led to complaints about the effectiveness of the Paris and Berne Conventions.23 The failures of global intellectual property protection rose to prominence in the United States during the 1980s, when executives became concerned with the decline of American competitiveness in manufacturing.24 The rise of technologically focused industries also gave intellectual property enhanced importance.25 The time had come for American businesses to use their economic and political power to encourage other nations to respect intellectual property rights. American businesses began in earnest to reshape the modern global intellectual property regime during the early phases of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), negotiated between 1986 and 1994. The proposed agenda for this round of negotiations was similar to topics discussed in the past: the improvement of trade in the textiles and apparel, services, agriculture, foreign direct

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Emmert, supra note 16, at 1340. See also Andrew T. Guzman, International Trust and the WTO: The Lesson From Intellectual Property, 43 VA. J. INTL L. 933, 948 (2003). Emmert, supra note 16, at 1340. Id. Id. Id. Guzman, supra note 18, at 94849.

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Peter M. Gerhart, Reections: Beyond Compliance TheoryFTRIPS as a Substantive Issue, 32 CASE W. RES. J. INTL L. 357, 367 (2000). Id.; Kenneth W. Dam, The Growing Importance of International Protection of Intellectual Property, 21 THE INTL LAWYER 627, 629 (1987). See generally Ralph Oman, Intellectual PropertyFOur Once and Future Strength, 27 GEO. WASH. J. INTL L. & ECON. 301 (199394).25

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investment, and government procurement.26 Both developed and developing countries had much to gain from the negotiations. Developing countries wanted to liberalize trade in textiles and apparel products.27 Developed countries hoped to liberalize service and foreign direct investment requirements.28 Despite attempts by American businesses, intellectual property rights, although a significant global issue by the mid-1980s, was not part of the GATT agenda. The United States sought support from their European and Japanese allies to make intellectual property a trade issue.29 The inadequacy of intellectual property protection in the areas of patents, copyrights, and trademarks facilitated the emergence of common interests among disparate companies and organizations.30 The Pharmaceutical Manufacturers Association (PMA) promoted intellectual property protection as a trade issue in its testimony before Congress.31 The International Intellectual Property Alliance (IIPA), an organization dedicated to policing national copyright protection efforts, also played a major role in changing the GATT agenda.32 Large multinational corporations formed a cross-industry organization called the Intellectual Property Committee (IPC), representing companies like Merck, Johnson & Johnson, IBM, Hewlett Packard, General Motors, General Electric, Monsanto Chemical, and Warner Communications.33 All of these groups sought to place intellectual property rights at the top of the international trade agenda.

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Mossinghoff, supra note 11, at 598. Id. Id.

Susan K. Sell, Multinational Corporations as Agents of Change: The Globalization of Intellectual Property Rights, in PRIVATE AUTHORITY AND INTERNATIONAL AFFAIRS 169, 18384 (A.C. Cutler et al. eds., 1999). Mohamed Omar Gad, Impact of Multinational Enterprises on Multilateral Rulemaking: The Pharmaceutical Industry and the TRIPS Uruguay Round Negotiations, 9 L. & BUS. REV. AM. 667, 674 (2003).31 32 33 30

Id. at 675. Id. at 674 n.32.

Michael Perelman, In Patents we Trust, htttp://www.ipfrontline.com/depts/article.asp?id= 6687&deptid=6. Perelman quotes Edmund J. Pratt, Chairman Emeritus of Pzer, as stating that: In 1983, Pzer joined with other corporations such as Merck, Johnson & Johnson, Bristol-Myers, IBM, Hewlett Packard, General Motors, General Electric, Rockwell Interna-


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In 1987, a vice president of IBM argued to Congress [that] intellectual property has become a trade problem . . . because . . . [like] other trade issues . . . nations often put domestic priorities rst and only later understand that [such actions] . . . seriously erode their own international trade interests.34 The IPC noted that inadequate international protection of intellectual property has become a major cause of distortions in the international trading system . . . and that it is both appropriate and necessary for intellectual property issues to be dealt with under international trade rules . . .35 These groups targeted developing countries for special scrutiny.36 Developing countries, led by BRIC nations of India and Brazil, resisted American efforts to link trade and intellectual property rights under GATT in order to improve intellectual property protections.37 They argued that discussion of intellectual property rights exceeded GATTs original mandate.38 They further responded that developing nations were able to achieve their current development levels in part because they were not restricted by intellectual property rules.39 If developing countries accepted strong intellectual property restrictions, they argued, there would be less of an opportunity to catch up to more advanced nations and the gap

tional, Du Pont, Monsanto, and Warner Communications to form the Intellectual Property Committee to advocate intellectual property protection. The committee helped convince U.S. ofcials that we should take a tough stance on intellectual property issues, and that led to trade-related intellectual property rights being included on the GATT agenda when negotiations began in Punta del Este, Uruguay, in 1986. Id.34 35 36

Dam, supra note 25, at 630. Gad, supra note 30, at 676.

For example, the President of the PMA testied before Congress that, [a]ll [developing countries] have significant deciencies in intellectual property protection for pharmaceuticals, the correction of which would substantially improve the market share for U.S. pharmaceutical companies. Id. at 675. For a useful summary of the PMAs position during this era, see Gerald J. Mossinghoff, Research-Based Pharmaceutical Companies: The Need for Improved Patent Protection Worldwide, 2 J. L. & TECH. 307 (1987). Gerald Mossinghoff was the President of the PMA at the time of the publication of this article. Id. at n.aa1.37 38

Gerhart, supra note 24, at 369 n.30.

Elizabeth Chien-Hale, Asserting U.S. Intellectual Property Rights in China: Expansion of Extraterritorial Jurisdiction?, 44 J. COPYRIGHT SOCY U.S.A. 198, 226 (1997). Id.

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between rich and poor would continue to expand.40 The developing countries considered the World Intellectual Property Organization (WIPO) to be the appropriate forum.41 Developing countries, which make up more than half of the WIPO membership, could effectively block any changes to intellectual property standards.42 With a strong local manufacturing industry of generic drugs and other products, India initially refused to even discuss the possibility of including patent protection in any GATT agreement.43 By 1989, most of Indias allies had succumbed to U.S. threats of trade sanctions. India grudgingly accepted intellectual property rights improvement as a trade issue44 and allowed it to be placed on the GATT agenda.45 The subsequent negotiations led to the adoption in 1994 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).46 This agreement provided broader protections for intellectual property rights by granting most favored nation treatment for all signatories, establishing minimum terms of protection, imposing significant40 41

Id.

Lee Petherbridge, Intelligent TRIPS Implementation: A Strategy for Countries on the Cusp of Development, 25 U. PA. J. INTL ECON. L. 1133, 1135 n.11 (2004). Id.

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Debate on this issue continued until 1989, three years after the Uruguay GATT Round of negotiations began. C. ONeal Taylor, Linkage and Rule-Making: Observations on Trade and Investment and Trade and Labor, 19 U. PA. J. INTL ECON. L. 639, 668 n.114 (1998). George K. Foster, Opposing Forces in a Revolution in International Patent Protection: The U.S. and India in the Uruguay Round and its Aftermath, 3 UCLA J. INTL & FOREIGN AFF. 283, 315 (1998). Id.

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Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, LEGAL INSTRUMENTS FRESULTS OF THE URUGUAY ROUND vol. 31, 33 I.L.M. 81 (1994). [hereinafter TRIPS]. See also Donald P. Harris, TRIPS Rebound: An Historical Analysis of How the TRIPS Agreement can Ricochet Back Against the United States, 25 NW. J. INTL L. & BUS. 99 (2004) (discussing TRIPS). The TRIPS agreement, which implements sweeping protections to intellectual property rights on a global scale, has been hailed as the most important international law governing intellectual property rights. Susan K. Sell, What Role for Humanitarian Intellectual Property? The Globalization of Intellectual Property Rights, 6 MINN. J.L. SCI & TECH. 191, 191 (2004). See also XuanThao N. Nguyen, Nationalizing Trademarks: A New International Trademark Jurisprudence?, 39 WAKE FOREST L. REV. 729, 761 (2004) (similar); Martin J. Adelman & Sonia Baldia, Patentable Inventions: Prospects of Limits of the Patent Provision in the TRIPS Agreement: The Case of India, 29 VAND. J. TRANSNATL L. 507, 512 (1996) (The importance of TRIPS cannot be easily overemphasized.).


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local enforcement and dispute settlement requirements, and authorizing trade sanctions against noncompliant nations.47 This landmark agreement48 was due, at least partially, by the concerted effort of U.S.-based companies.49 At the same time, American multinational interests advocated for additional domestic legislation to coerce developing countries into adopting more intellectual property protections. U.S. law already had in place Section 30150 of the Trade Act of 197451 which contains significant measures to ensure trade compliance and fair competition. Section 301 power arose from Congressional dissatisfaction with the lack of protection U.S. trade was receiving under the then-current GATT regime.52 Section 301 grants the President broad authority to impose sanctions against a

47 For one of many useful articles summarizing TRIPS see Robert J. Gutowski, Comment, The Marriage of Intellectual Property and International Trade in the TRIPS Agreement: Strange Bedfellows or a Match Made in Heaven?, 47 BUFF. L. REV. 713 (1999). 48

One commentator states that TRIPS was without question the grandest event in commercial diplomatic history, Foster, supra note 44, at 283 (citing ERNEST H. PREEG, TRADERS IN A BRAVE NEW WORLD: THE URUGUAY ROUND AND THE FUTURE OF THE INTERNATIONAL TRADING SYSTEM xi (1995)).49

TRIPS would have been unthinkable without the concerted efforts of U.S.-based corporate executives. Sell, supra note 29, at 170. 19 U.S.C. 2411 (2005). The stated purposes of the 1974 Trade Act are:

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(1) to foster the economic growth of and full employment in the United States and to strengthen economic relations between the United States and foreign countries through open and nondiscriminatory world trade; (2) to harmonize, reduce, and eliminate barriers to trade on a basis which assures substantially equivalent competitive opportunities for the commerce of the United States; (3) to establish fairness and equity in international trading relations, including reform of the General Agreement on Tariffs and Trade; (4) to provide adequate procedures to safeguard American industry and labor against unfair or injurious import competition, and to assist industries, rm, workers, and communities to adjust to changes in international trade ows; (5) to open up market opportunities for United States commerce in nonmarket economies; and (6) to provide fair and reasonable access to products of less developed countries in the United States market. 19 U.S.C. 2102 (2005). Kim Newby, The Effectiveness of Special 301 in Creating Long Term Copyright Protection for U.S. Companies Overseas, 21 SYRACUSE J. INTL L. & COM. 29, 33 (1995). The congressional Senate Report reviewing the act stated:52

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priority foreign country53 that engages in unfair trade practices.54 Section 301(a) authorizes retaliation against a nation that has breached a trade agreement with the United States.55 Section 301(b) authorizes retaliation against a nation that has taken actions which burden[] or restrict[] United States commerce.56 In response to calls for additional measures, Congress amended Section 30157 by adding Super 301 and Special 301. Super 30158 requires the United States Trade Representative (USTR) to review U.S. trade priorities and to determine the foreign country practices that pose major barriers to U.S. exports.59 Special 301, by contrast, focuses

In addition, the Committee felt that there would be situations, such as in the case of unreasonable foreign import restrictions where the President ought to be able to act or threaten to act under section 301, whether or not such action would be entirely consistent with the General Agreement on Tariffs and Trade. Many GATT articles, such as Article I (MFN principle) Article III (taxes affecting imports), Article XII (balance of payments safeguards), or Article XXIV (regional trade associations) are either inappropriate in todays economic world or are being observed more often in the breach, to the detriment of the United States. Furthermore, the decision-making process under the General Agreement often frustrates the ability of the United States (as well as other contracting parties) to obtain the decisions needed to enable the United States to protect its rights and benets under the GATT. . . . The Committee is not urging that the United States undertake wanton or reckless retaliatory action under section 301 in total disdain of applicable international agreements. However, the Committee felt it was necessary to make it clear that the President could act to protect U.S. economic interests whether or not such action was consistent with the articles of an outmoded international agreement initiated by the Executive 25 years ago and never approved by the Congress. S. REP. NO. 1298, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7186, 7304.53 54

The process of identifying of a priority foreign country is codied at 19 U.S.C. 2242 (2005).

See Peter K. Yu, From Pirates to Partners: Protecting Intellectual Property in China in the TwentyFirst Century, 50 AM. U. L. REV. 131, 139 n.37 (2000).55 56 57 58

19 U.S.C. 2411(a)(1)(A) (2005). 19 U.S.C. 2411(a)(1)(B)(ii) (2005). Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. 21012495 (2005).

Section 301 has been characterized as probably the most criticized piece of U.S. foreign trade legislation since the Hawley-Smoot Tariff Act of 1930. Yu, supra note 54, at 139 n.39 (quoting Robert E. Hudec, Thinking About the New Section 301: Beyond Good and Evil, in AGGRESSIVE UNILATERALISM: AMERICAS 301 TRADE POLICY AND THE WORLD TRADING SYSTEM 49, 113 ( Jagdish Bhagwati & Hugh T. Patrick eds., 1990)).59

Yu, supra note 54, at 139.


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specifically on unfair intellectual property rights practices.60 Special 301 requires the USTR61 to identify nations that provide weak intellectual property protection or deny U.S. intellectual property goods fair or equitable market access.62 The United States has not hesitated to use its newly augmented trade enforcement powers against the BRIC countries. For example, in 1987 PMA led a petition with the USTR claiming Brazils denial of patent protection for pharmaceutical products and processes adversely affected its member companies by harming their patent rights, eroding their Brazilian investments, threatening their exports to Brazil, and eliminating opportunities for further investment and trade in the Brazilian economy.63 The PMA estimated past and potential losses for its members in the hundreds of millions of dollars.64 The petition served as a signal that nations that failed to provide adequate intellectual property protections to American exporters would face the new sanctions provided under Special 301.65 As a result, Brazil was one of the rst nations to suffer direct sanctions under

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Id. at 13940.

Newby, supra note 52, at 34. The OTCA removed retaliation and investigation powers from the President and placed them with the United States Trade Representative. Yu, supra note 54, at 140. The amended trade law also places strict time limits on how long before the USTR must act against a country that has been cited as an offender against U.S. trade interests. Jared R. Silverman, Multilateral Resolution Over Unilateral Retaliation: Adjudicating the use of Section 301 Before the WTO, 17 U. PA. J. INTL ECON. L. 233, 246 (1996) (citing 19 U.S.C. 241213 (1988)). Upon such identication, the USTR must initiate an investigation within thirty days and request a consultation regarding that nations improper practices. Yu, supra note 54, at 140. If the issue is not resolved to the USTRs satisfaction within six months for most issues, the USTR is authorized to suspend or withdraw trade benets and impose duties or other penalties. Id.63 64 65 62

Gad, supra note 30, at 682. Id.

PMA characterized Brazil as a leader of developing countries whose purpose was to dilute even the most basic minimum standards provided by the Paris Convention. Id. at 684. Gad quotes a statement by Gerald J. Mossinghoff, then President of the PMA, as stating: Brazil is a leader of the so-called G-77 countries effort to reduce the already minimum standards for patent protection in the Paris Convention. It has also opposed efforts to include intellectual property protection within the purview of the GATT as a trade-related issue. As a newly industrialized nation, it is time for Brazil, the eighth largest economy in the west, to start playing by the rules of the international trading system. Statement of Gerald J. Mossinghoff, President, PMA, in BrazilFPharaceutical Patents, USTR Public Docket No. 30161.

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Special 301. On October 20, 1988, President Reagan issued proclamation 5885, increasing U.S. import duties on certain Brazilian products by one hundred percent.66 The PMA commented that [w]e hope the imposition of this sanction, which is modest in comparison to the revenue losses sustained by our industry in Brazil, will impress upon Brazil the seriousness with which the United States views the unauthorized appropriation of its citizens intellectual property.67 The sanctions impacted $200 million in trade.68 One year later, the Brazilian government announced that it would seek improved patent protection legislation for pharmaceutical products and processes.69 Russia was also pressured by the United States to improve its intellectual property regime, albeit on a more limited scale. The USTR placed Russia on its Watch List in 1995 and then on its Priority Watch List in 1997,70 signifying its noncompliance with intellectual property standards.71 Earlier, the U.S. government encouraged the then Soviet Union to join the Berne Convention in exchange for preferential trade status.72 After the collapse of the Soviet Union, the Russian government assumed the responsibilities of the agreement. The United States pressured India to agree to the negotiation of the TRIPS agreement through its inuence over International Monetary Fund

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Increase in the Rates of Duty for Certain Articles from Brazil, Proclamation No. 5885, 53 Fed. Reg. 41,551 (Oct. 20, 1988). See also Myles Getlan, TRIPS and the Future of Section 301: A Comparative Study in Trade Dispute Resolution, 34 COLUM. J. TRANSATL L. 173, 185 (1995). Gad, supra note 30, at 678. Id. at 684.

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Determination to Terminate Increased Duties on Certain Articles from Brazil, 55 Fed. Reg. 27,324 ( July 2, 1990).

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See Lianlian Lin, Intellectual Property Protection in China, 27 ACAD. LEGAL STUD. BUS. NATL PROC. 203, 205 (1998) ([The] USTR prepares a list of countries, ranked from priority foreign country, a country with the most egregious IPR problems, to priority watch list, and to watch list, a country that still warrant [sic] monitoring.).71 Connie Neigel, Piracy in Russia and China: A Different U.S. Reaction, 63 LAW & CONTEMP. PROBS. 179, 188 (2000). See also Tim Kuik, Piracy in Russia: An Epidemic, 20 WHITTIER L. REV. 831 (1999). 72

Neigel, supra note 71, at 185. At the same time, the motion picture industry, lobbied the U.S. Congress to withhold ratication of the agreement until the Russians improved their copyright laws. Lana C. Fleishman, The Empire Strikes Back: The Inuence of the United States Motion Picture Industry on Russian Copyright Law, 26 CORNELL INTL L.J. 189, 21522 (1993).


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assistance to the 1989 Indian economic crisis.73 The United States exerted inuence because it had provided India with needed direct grants and was Indias largest trading partner.74 Based upon the cumulative effect of these economic factors, India abandoned its opposition to TRIPS in order to maintain badly needed U.S. funding and trade access.75 Finally, U.S. pressure on China almost resulted in a series of trade wars. During the 1990s the United States repeatedly threatened to impose sanctions against China for its failure to protect American intellectual property rights. China would agree to improve and enforce its intellectual property laws and the United States would agree to not impose sanctions.76 Although the United States and the interests that supported it lobbied aggressively to improve intellectual property protections, the result of these efforts, as the next section will show, were decidedly mixed in nature.

III. COERCION AS AN INEFFECTIVE STRATEGY IN PROMOTING INTELLECTUAL PROPERTY PROTECTION IN THE BRIC COUNTRIESCoercion, in the context of international relations, occurs when a stronger nation (S) forces a weaker nation (W) to perform actions that serve the dominant power.77 The typical coercion scenario involves S stating that it will punish W if it fails to take a certain action. S maximizes its payoff when W takes the demanded action. Given Ss statement, W also maximizes its payoff if it takes the demanded action and is not punished, assuming the cost of the punishment is greater than the benet of inaction. The optimal conditions for both W and S are when W complies with Ss demands and S does not punish the weaker state.78 This occurs not by raising the

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Foster, supra note 44, at 316. Id. at 317.

Id. at 31617. The Indian government relented even though it was subjected to relentless lobbying from Indian farmers and drug manufacturers to do otherwise. Id. at 30913.76 77

See text accompanying notes 14479.

Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. CHI. L. REV. 1113, 112324 (1999). This example assumes the cost of punishing the weaker state is negligible.78

Id. See also Edward T. Swaine, Rational Custom, 52 DUKE L.J. 559, 57678 (2002).

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equilibrium benet of W to follow S but by making the alternative of not performing Ss demanded action more costly.79 As Part II revealed, all four BRIC economies have endured American governmental pressure to improve their intellectual property regimes. Brazil faced overwhelming pharmaceutical industry pressure and governmental threats of sanctions from the U.S. to improve its patent protection for drug products and processes. Brazil gave up its resistance by discussing intellectual property rights at GATT, joined the TRIPS agreement, and now possesses a functioning patent approval system that is fairly consistent with the minimum standards of protection required by TRIPS.80 The Russian government was faced with the choice of improving its intellectual property laws or losing most favored nation trade status with the United States. In response, it joined the Berne Convention, enacted intellectual property laws protecting computer programs, databases, and integrated circuit topologies,81 and adopted a comprehensive copyright law.82 India faced the prospect of overwhelming trade penalties and aid losses if it did not reform its intellectual property policies. In spite of strong political pressure from farmers and domestic generic drug consumers,83 India acceded to TRIPS. India also passed legislation establishing a mailbox system to receive patent applications, protecting geographic indication trademarks, and strengthening copyright law.84 Finally, China resisted U.S. efforts to change its domestic piracy practices, even threatening retaliations. A trade war was averted when China agreed to U.S. demands and halted some of its domestic acts of piracy. Today, Chinese intellectual property law resembles developed nations legal codes. Since Chinas accession to TRIPS, it has extended patent protection from fteen to twenty years, protected geographic indication

79 80

Gerhart, supra note 24, at 369.

See generally Claudia Schulz, The TRIPS Agreement and Intellectual Property in Brazil, 98 AM. SOCY INTL PROC. 100 (2004).81 82 83 84

Neigel, supra note 71, at 186. Id. at 185. Foster, supra note 44, at 30910.

Embassy of India Policy Statements, Intellectual Property Rights in India, at http://www.indianembassy.org/policy/ipr/ipr_2000.htm.


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trademarks, and offered the right of judicial review to administrative decisions of the Trademark Review and Adjudication Board.85 These changes in BRIC governments intellectual property policies show that coercive action by the U.S. government has changed the legal landscape in these nations. All four BRIC countries have developed stronger intellectual property laws as a result of American coercion. Successful enforcement of these new laws, however, is a different matter altogether. The IIPA86 has given low marks to the enforcement of intellectual property protections by BRIC countries. For example, government action in Brazil is nonexistent against illegal copying of academic books and other

85

See generally Veronica Weinstein & Dennis Fernandez, Recent Developments in Chinas Intellectual Property Laws, 3 CHINESE J. INTL L. 227 (2004).

International Intellectual Property Alliance (IIPA) a coalition of private-sector interests formed to represent copyright-based industries in improving copyright protection on a global scale. See Description of the IIPA, www.iipa.com/aboutiipa.html. The IIPA also inuences the USTRs Section 301 reviews and, among other activities, participates in discussions with the World Intellectual Property Organization (WIPO) regarding intellectual property rights. Most importantly for purposes of this paper, the IIPA tracks intellectual property regimes and enforcement in over eighty countries around the world. The IIPAs annual country reports are useful in understanding the global enforcement of intellectual property rights. Although the IIPA focuses primarily on copyright piracy, their reports offer a uniquely detailed commentary that is instructive on the level of intellectual property protection in the BRIC economies. Trademark infringement, for example, is widespread in all four BRICs. One 1995 study examining the trademark protection losses in the footwear and apparel industry estimated the percentage of lost sales to trademark piracy was 26%, 28%, 28%, and 26% for Brazil, Russia, India, and China, respectively. See The Economic Impact of Trademark Infringement: Estimation of the Impact of Trademark Counterfeiting and Infringement on Worldwide Sales of Apparel and Footwear 1314, at http://http://www.inta.org/downloads/tap_economicim pact1998.pdf. In China, stage agencies report 51,851 prosecuted trademark cases in China in 2004, a 27% increase in such cases from the prior year. E.g., Trademark Infringement Cases on the Rise in 2004, 32 P.R.C. BUS. REV. 62, 62 (May/June 2005). Chinese agencies conscated and destroyed tons of illegally trademarked material and issued nes totaling $32.4 million. Id. Yet, the USTR has expressed concern that foreign trademark owners do not appear to be receiving national treatment with regard to their well-known marks. See USTR 2003 Special 301 Report 10, at http://www.ustr.gov/assets/Document_Library/Reports_Publications/2003/ 2003_Special_301_Report/asset_upload_le665_6124.pdf. Brazils National Institute of Industrial Property has increased its enforcement efforts to stop trademark piracy. Brazil: Licensing and Intellectual Property, EIV ViewsWire New York, Sep. 1, 2004 (calling trademark piracy in Brazil a problem and noting weaknesses in Brazilian trademark law). See generally James K. Glassman, Get Tough With Axis of Evil Job Stealers, Det. News, Apr. 12, 2005, at http:// lists.essential.org/pipermail/ip-health/2005-April/007764.html (referring to James Pinkertons classication of Brazil, India, and China as the IP Axis of Evil due to widespread violation of U.S. intellectual property rights).

86

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materials.87 Piracy of copyrighted recordings constitutes over half of all compact disc sales in Brazil.88 Seventy-four percent of all video games sold in Brazil are pirated.89 While civil actions are being pursued against some pirates,90 these actions are ineffective because Brazilian disputes take years to be adjudicated91 and light penalties fail to provide much deterrence.92 Brazilian copyright piracy caused $931.9 million in trade losses in 2004.93 Russian copyright piracy remains one of the most serious of any country in the world.94 Russia is now one of the largest producers and distributors of illegal optical media material.95 The majority of audio and compact disks sold in Russia are pirated copies.96 Crime syndicates thrive off of the sales of illegal products.97 Enforcement of Russian intellectual property laws is anemic at best.98 Russian authorities do not conduct surprise inspections, do not seize and conscate equipment, and rarely repeal issuances of inappropriate licenses.99 Jail sentences for piracy are rare.100 Russian copyright piracy exceeded $1.7 billion in 2004.101

87

International Intellectual Property Alliance, 2005 Special 301 Report: Brazil 51, 56 (2005) available at http://www.iipa.com/rbc/2005/2005SPEC301BRAZIL.pdf [hereinafter Brazil IIPA Report]. Id. at 54. Id. at 55.

88 89 90

Organized crime in Brazil participates heavily in and benets significantly from pirating activities. Id. at 5758. Id. at 55. Id. at 6162. Id. at 53.

91 92 93 94

International Intellectual Property Alliance, 2005 Special 301 Report: Russian Federation 13, 13 (2005) available at http://www.iipa.com/rbc/2005/2005SPEC301RUSSIA.pdf [hereinafter Russia IIPA Report]. Id. at 13. Id. at 21. Id. at 2021. Id. at 22. Id. at 17. Id. at 21. Id. at 13.

95 96 97 98 99

100 101


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India, like Russia and Brazil, suffers from both high piracy rates and a weak enforcement system.102 Legitimate recording industries report rapidly declining sales of products.103 Eighty-six percent of entertainment software sold is pirated.104 Illegal booksellers operate openly in market bazaars with no threat from law enforcement.105 While criminal cases have been commenced, they proceed at a glacial pace through Indian courts.106 The IIPA has not been able to discern more than 15 criminal convictions for copyright piracy in 15 years.107 When enforcement does occur, small nes and short jail terms are common.108 Almost $500 million in trade losses are attributed to copyright piracy in India in 2004.109 The sheer volume of copyright and trademark piracy in China is staggering. Piracy levels are at ninety percent across all copyright sectors.110 At least eighty-three manufacturing plants operate in China with 765 production lines that specialize in the manufacture of pirated goods.111 Although the Supreme Judicial Court of China has recently issued new interpretations of the Chinese Criminal law, it is questionable whether these new interpretations will make any practical difference in reducing piracy.112 Chinese copyright piracy amounts to a $2.5 billon industry in 2004.113

102 International Intellectual Property Alliance, 2005 Special 301 Report: Russia 121, 121(2005), available at http://www.iipa.com/rbc/2005/2005SPEC301India.pdf [hereinafter India IIPA Report]. 103 104 105 106 107 108 109 110

Id. at 126. Id. Id. at 123. Id. at 128. Id. at 127. Id. at 128. Id. at 123.

International Intellectual Property Alliance, 2005 Special 301 Report: China 183, 183, (2005), available at http://www.iipa.com/rbc/2005/2005SPEC301PRCrev.pdf [hereinafter China IIPA Report].111 112 113

Id. at 187. Id. at 204. Id. at 186.

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In sum, despite some good faith government enforcement efforts,114 piracy remains rampant and increasingly prevalent in all four BRIC countries. The next section will analyze the limitations of coercion as a tool for meaningful improvement in international intellectual property protection. A. The Limitations of Coercion in International Economic Relations American threats of trade sanctions against the BRIC countries resulted in significant changes to domestic and international laws. Coercion placed intellectual property on the GATT agenda in spite of erce resistance from developing countries. Threats of a trade war encouraged China to enact more stringent copyright laws and close pirating factories. Russia improved its copyright laws under threat from the United States to withhold ratication of a trade agreement granting Russia preferential trade status. Economic pressure forced India to accede to the intellectual property standards of TRIPS. American economic threats pressured Brazil to agree to protect U.S. pharmaceutical products and processes at the expense of local producers. Coercion, therefore, can accomplish change in global intellectual property standards. Coercion as a dominant long-term strategy, however, cannot eliminate intellectual property infringement. Illegal reproduction of protected goods and works in the BRIC economies remains commonplace. The expansion of broadband networks and access to technology by BRIC citizens will only increase the opportunity for pirated products to spread. The demand for illicitly manufactured pharmaceuticals and other patented products remains strong. Although some laws are in place, enforcement remains lax. Coercion as a dominant U.S. political strategy has failed to

According to the IIPA, Brazilian, Russian, Indian, and Chinese ofcials have all engaged in at least some efforts to curb piracy. For example, authorities in Brazil arrested notorious piracy leader Law Kim Chong and seized millions of blank optical media. Brazil IIPA Report, supra note 87, at 5758. Brazilian authorities alleged that Chong attempted to bribe the Chairman of Brazils Congressional Anti-Piracy Committee. Id. at 57. Brazilian and Indian authorities have raided large plants specializing in piracy of optical media. Russia IIPA Report, supra note 94, at 17; India IIPA Report, supra note 102, at 127. The Chinese government is making headway in reducing print journal piracy and bringing successful civil cases under recent Copyright Act amendments. China IIPA Report, supra note 110, at 193, 202. Russian authorities conducted a series of raids against optical disc plants and seized illegal materials. Russia IIPA Report, supra note 94, at 1718.

114


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significantly curb global intellectual property piracy.115 In fact, evidence demonstrates that unilateral economic sanctions by the United States regularly achieve their stated long-term policy objectives.116 One author who studied twenty international crises between 1905 and 1971 concluded that if our results suggest anything, it is that an assertive, bullying, strategy is both less effective and more risky than much of the folklore of power policies would have it.117 There are six reasons why coercive tactics against foreign states fail to achieve their long-term policy objectives and potentially harm U.S. interests. The rst and probably the most obvious reason that coercion fails is because it provokes retaliation by the targeted state.118 For example, when the United States threatened to impose sanctions against China because of its lack of protection for intellectual property, China responded by transferring an airplane purchase order worth $1.5 billion from a United States company to a European competitor.119 China and the United States have participated in a continuous cycle of threats of sanctions, followed by negotiations, and resolutions.120 China has proved that it is willing to threaten countersanctions when it feels its sovereignty or national dignity has been threatened by American demands for increased intellectual property enforcement.121 Second, economic sanctions that benet one U.S. industry can cause damage to another unrelated U.S. industry. For example, drug companies in the 1980s cited Brazil for its failure to provide intellectual property

115

E.g., Yu, supra note 54, at 172 (discussing China and concluding that [a]part from the lukewarm responses it was able to elicit, the coercive American foreign intellectual property policy failed to create any sustainable and continuous protection for American products.).

Justin D. Stalls, Economic Sanctions, 11 U. MIAMI INTL & COMP. L. REV. 115, 148 (2003) (citing various sources and concluding that, [n]early all scholarly analyses conclude that economic sanctions are generally unsuccessful.).117

116

Russell J. Leng & Hugh G. Wheeler, Inuence Strategies, Success, and War, 23 J. CONFLICT RESOL. 655, 681 (1979).118 Yu, supra note 54, at 16667 (citing ADAM SMITH, THE WEALTH OF NATIONS bk. I, ch. 8, at 434 (Edwin Cannan ed., 1937) (1776)). 119 120 121

Id. at 168. See text accompanying notes 14579. Yu, supra note 54, at 144.

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rights for patents in the pharmaceutical sector.122 After continued negotiations between Brazilian and U.S. representatives proved unfruitful, the United States imposed economic sanctions against numerous Brazilian products, including paper products, pharmaceuticals, chemicals, microwave ovens, television cameras, telephone answering machines, tape recorders, moccasins, pistols, and jewelry.123 Once the government announced the trade sanctions, General Electric protested the tariffs against imported electrical breakers, Xerox opposed the inclusion of copy paper, Dow Chemical objected to the tariffs on carbon tetrachloride, Ford Motor called for the removal of ampliers and windshield wipers, and Carrier sought the removal of air conditioners from the tariffs target list.124 Each of these companies claimed that the sanctions harmed their economic interests because they relied on the importation of the targeted products to satisfy consumer needs.125 Third, economic coercion isolates the coercive country from its trading partners.126 Trading partners who witness American coercion applied against another country will naturally reect on when such sanctions will be applied against them.127 As a result, noncoerced trading partners will be less likely to trust the United States to maintain harmonious

122 123 124

Getlan, supra note 66, at 185. Id. at 188.

Christopher Scott Harrison, Comment, Protection of Pharmaceuticals as a Foreign Policy: The Canada-U.S. Trade Agreement and Bill C-22 Versus the North American Free Trade Agreement, 26 N.C. J. INTL L. & COM. REG. 457, 484 n.144 (2001). See also Getlan, supra note 66, at 189 n.90; Administration Opens Hearings on Proposed Sanctions in Brazilian Pharmaceuticals Case, 5 INTL TRADE REP. (BNA) 1247, 1247 (1988).125 Harrison, supra note 124, at 484 n.144. See also Sanctions Hurt U.S. Hong Kong Firms More than China, Executives Say, 9 INTL TRADE REP. 56, 5657 (1992) (noting that manufacturers and importers of appliances, electronic goods, magnets, and antibiotics objected to the use of punitive tariffs as a means of punishing China because the decreases in sales as a result of higher prices would lead to the loss of 39,000 jobs.). 126 Peter K. Yu, Toward a Nonzero-Sum Approach to Resolving Global Intellectual Property Disputes: What we can Learn from Mediators, Business Strategists, and International Relations Theorists, 70 U. CIN. L. REV. 569, 579 (2002). 127 David Hartridge & Arvind Subramanian, Intellectual Property Rights: The Issues in GATT, 22 VAND. J. TRANSNATL L. 893, 909 (1989) (It is indeed hard to see why many states should accept new multilateral commitments in [the intellectual property] area if they remain vulnerable to unilateral actions.).


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relationships.128 Liberal use of coercive sanctions in the past will make forging trade agreements with future partners more difcult, thereby decreasing the competitiveness of U.S. rms relative to their foreign competition. Fourth, sanctions help mobilize resistance against and generate hostility toward the sanctioning state. For example, in 1996, Congress passed the controversial Cuban Liberty and Democratic Solidarity Act of 1996, popularly known as the Helms-Burton Act, which punished foreign nationals and foreign companies that do business with Cuba.129 While the Act was intended to destabilize the Cuban government, the act actually weakened internal opposition to Fidel Castros regime. According to a United Nations report, Helms-Burton strengthened support for Castro in Cuba because the Act gave the appearance that outsiders, rather than Cubans, would decide the nations future.130 The legislatures of the European Union, Mexico, and Canada passed retaliatory legislation banning companies operating in their countries from obeying the Helms-Burton Act.131 In 1992 the United States successfully pressured the International Whaling Commission to send back for further study a scientific report that recommended the reinstitution of limited commercial whaling based upon the presence of large and increasing whale stocks.132 The effect was to extend the moratorium on commercial whaling for another year.133 In response, commercial whaling nations aggressively reasserted their rightsDavid T. Shapiro, Note, Be Careful What You Wish for: U.S. Politics and the Future of the National Security Exception to the GATT, 31 GEO. WASH. J. INTL L. & ECON. 97, 114 (1997) (Unilateral sanctions also hurt U.S. interests by undermining the stability of the international trading system upon which businesses rely. Foreign countries or companies contemplating a longterm commercial relationship with a U.S. exporter must consider the possibility that U.S. foreign policy considerations may interfere.).129 130 128

22 U.S.C. 60216091 (2005). See also Shapiro, supra note 128, at 99.

Shapiro, supra note 128, at 114 (citing U.S. Anti-Cuba Law Seen Sapping Domestic Political Opposition, AGENCE FRANCE-PRESSE, Mar. 13, 1997, available at 1997 WL 2076602). Digna B. French, Economic Sanctions Imposed by the United States Against Cuba: The Thirty-Nine Year Old Embargo Culminating with the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 7 U. MIAMI INTL & COMP. L. REV. 1, 13 (1999). ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERREGULATORY AGREEMENTS 10102 (1995).

131

132

NATIONAL133

Id. See generally Alma Soongi Beck, Comment, The Makahs Decision to Reinstate Whaling: When Conservationists Clash with Native Americans Over an Ancient Hunting Tradition, 11 J. ENVTL L. & LITIG. 59, 384 (1996).

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to whaling regardless of international protocols.134 Ireland withdrew its membership from the International Convention to Regulate Whaling.135 Norway resumed whaling in 1993.136 Russia and Japan indicated that they would consider reintroducing whaling practices in the future.137 Iceland called a meeting of pro-whaling states with the intention of forming an entirely new whaling regime.138 The possibility arose that widespread unregulated whaling might again be performed on the open seas, a practice that has not occurred since 1960.139 The coercive efforts of the United States resulted in the remobilization of an interest group dedicated to opposing U.S. intervention. U.S. sanctions fed the sense of grievance that has led the minority to take drastic action.140 A Norwegian foreign minister commented that [i]t would be intolerable if a small country were to be pressured into submission by big countries who only wish to pay environmental penance in currency of negligible value to them.141 Fifth, coercive trade sanctions can devastate the economies of developing countries. Developing countries resent sanctions or the threat of sanctions by the United States as a brand of economic colonialism. The use of coercive tactics by the United States serves to signal to newly developing democracies that coercive economic power is not only acceptable but a preferred method of international trade policy. Instead, the United States as a leading economic power should serve as a role model for emerging nations. Finally, and perhaps most importantly, coercive tactics fail to address the underlying causes of rampant intellectual property piracy in developing countries. Coercive sanctions do not address, but rather may exacerbate, the poverty and unemployment in developing countries that makes the production of pirated goods and the purchase of illegal patented drugs

134 135 136 137 138 139 140 141

CHAYES & CHAYES, supra note 132, at 102. Id. Id.; Beck, supra note 133, at 384. CHAYES & CHAYES, supra note 132, at 102. Id. Id. Id.

Id. (quoting J.J. Holst, foreign minister of Norway, Norwegian Information Service, Noriform Weekly Edition, no. 26 (Aug. 31, 1993)). See also Norway Stands Firm on Whaling Issue, Noriform Weekly Edition, available at http://www.norwaves.com/norwaves/Volume1_1993/v1nw16.html.


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so tempting.142 No matter how coercive sanctions may be, strong incentives still remain in place to sell and purchase pirated goods.143 B. Responses to U.S. Coercion: China and India Coercive efforts to change a foreign nations behavior can provoke a variety of reactions ranging from immediate compliance to a threat of a trade war. This section focuses on two of the four BRIC countries, China and India, and their respective responses to U.S. pressure to protect intellectual property rights. China and India reacted quite differently to threats of U.S. sanctions. However, both reactions resulted in little improvement of intellectual property rights for U.S. rms. These experiences can provide a baseline for altering U.S. strategy to improve protection of intellectual property rights abroad. 1. The Retaliation Cycle: The Chinese Reaction to U.S. Coercion One of the most prominent examples of the limitations of coercive trade policies involves Chinas relationship with the United States. In 1979, both countries agreed that each nation would treat the others patent and trademark protection the same.144 However, China implemented its new trademark and patent laws within the context of socialist principles of public ownership, the effect being that few private individuals managed to obtain work-related patents in their own names.145 Eventually, the United States lost patience and sought proactive responses to Chinas lack of enforcement. In 1988, the U.S. Congress augmented the Trade Act of 1974 by giving expanded powers to the USTR and imposing strict deadlines on investigation and action against foreign unfair trade practices.146 The

See, e.g., Winston P. Nagan, International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States, 14 FLA. J. INTL L. 155, 15859 (2002).143

142

Lin, supra note 70, at 209 (citing an author of China Business Review who states copying is not considered to be morally wrong in China because it has traditionally been a legitimate way to learn and share knowledge.).

144 Agreement on Trade Relations Between the United States of America and the Peoples Republic of China of 1979, July 7, 1979, P.R.C.-U.S., 31 U.S.T. 4652. 145 146

Yu, supra note 54, at 137. See supra note 62.

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USTR placed China on its Priority Watch List pursuant to these powers the following year.147 In response to the USTRs action, China enacted new intellectual property laws. Nonetheless, American businesses increasingly complained that their intellectual property rights remained unprotected and that piracy was widespread. In 1991, China was designated as a Priority Foreign Country and the USTR launched an investigation into Chinas intellectual property protection practices.148 As a result, the United States threatened to impose tariffs on Chinese textiles, shoes, electronics, and pharmaceuticals worth $1.5 billion.149 This time the Chinese chose to retaliate. China responded with tariffs worth a similar amount on American aircraft, cotton, corn, steel, and chemicals.150 After six rounds of negotiations,151 Chinese and American representatives managed to reach a compromise just before the sanctions would have been implemented.152 The parties signed a Memorandum of Understanding on January 17, 1992 (1992 MOU) and narrowly averted what would have been a costly trade war.153 As a result of the 1992 MOU China significantly improved its intellectual property laws. Pursuant to the terms of the MOU, China joined the Berne Convention in 1992 and the Geneva Convention in 1993.154 Pursuant to these conventions, China amended its copyright law and issued implementing regulations.155 The new laws protected software programs for fty years, removed formalities on copyright protection, and extended

147 148 149 150 151

Yu, supra note 54, at 14041. Id. at 14142. Id. at 142. Id.

Paul C.B. Liu, U.S. Industrys Inuence on Intellectual Property Negotiations and Special 301 Actionss, 13 UCLA PAC. BASIN L.J. 87, 112 (1994).152 153 154

Yu, supra note 54, at 142. Id.; Liu, supra note 151, at 112.

Warren Newberry, Note, Copyright Reform in China: A TRIPS Much Shorter and Less Strange than Imagined?, 35 CONN. L. REV. 1425, 1439 (2003) (citing Memorandum of Understanding Between the Government of the Peoples Republic of China (PRC) and the Government of the United States of America on the Protection of Intellectual Property, Jan. 17, 1992, P.R.C.-U.S., 34 I.L.M. 677 at art. 3(1) and 3(2)).155



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the protections to all works originating from a Berne Convention country.156 China also amended its 1984 Patent Law, implemented patent regulations, and agreed to the terms of the Patent Cooperation Treaty.157 In 1993, China upgraded its trademark law to include criminal penalties and adopted a new unfair competition law protecting trade secrets.158 China established specialized intellectual property courts to hear cases and its Supreme Court issued a circular instructing lower courts to address intellectual property cases expeditiously.159 By any measure of the time, the 1992 MOU was as an enormous success for the United States. Within the three-year period from the adoption of the 1992 MOU China improved its intellectual property protections on all fronts. It soon became clear, however, that China was not effectively enforcing the new laws.160 American businesses complained again about the lack of intellectual property protection.161 In fact, China allowed the rapid growth of the exportation of pirated products.162 The USTR again placed China on its Priority Foreign Country list and launched an investigation.163 On June 30, 1994, the USTR designated China as a priority foreign country pursuant to its Special 301 powers.164 The Clinton Administration threatened to impose tariffs against $1 billion worth of Chinese imports.165 China quickly retaliated by threatening tariffs against various American-made products and suspended joint venture negotiations with U.S. automobile companies.166 Again at the eleventh hour, U.S. and Chinese negotiators reached a compromise.156 157 158 159 160

Id. at 143. Id. at 142. Id. at 143; Newberry, supra note 154, at 1440. Lin, supra note 70, at 205.

Charles Tiefer, Sino 301: How Congress Can Effectively Review Relations with China After WTO Accession, 34 CORNELL INTL L.J. 55, 64 (2001).161

Yu, supra note 54, at 143 (citing Patrick H. Hu, Mickey Mouse in China: Legal and Cultural Implications in Protecting U.S. Copyrights, 14 B.U. INTL L.J. 81, 93 (1996)).

162 Gregory S. Feder, Enforcement of Intellectual Property Rights in China: You Can Lead a Horse to Water, But You Cant Make it Drink, 37 VA. J. INTL L. 223, 24142 (1996). 163 164 165 166

Yu, supra note 54, at 144. Lin, supra note 70, at 205. Yu, supra note 54, at 144. Id.

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The new agreement established an enhanced copyright verication system, intensied border protection, and imposed training and education requirements for enforcement authorities.167 In exchange, the United States promised to terminate its section 301 investigation of China, to remove its Priority Foreign Country designation, and to rescind the order imposing retaliatory tariffs.168 An accompanying action plan offered detailed instructions on executing the letters commands.169 Within the rst few months, China conducted massive raids against intellectual property infringers throughout China.170 Deputy U.S. Trade Representative Charlene Barshefsky called the implementation of the agreement very promising.171 However, by the end of 1995, it became clear that the agreement was not producing the intended results.172 Representatives of software, motion picture, and record companies again argued that China had done little to curb the massive production and export of pirated products.173 On April 30, 1996, China was again designated a Priority Foreign Country.174 Both countries threatened sanctions.175 A compromise on June 17, 1996 resulted in the United States dropping China from its Special 301 list in exchange for Chinas promises of improved enforcement of intellectual property rights.176

167 168

Peter K. Yu, The Copyright Divide, 25 CARDOZO L. REV. 331, 35960 (2003).

Yu, supra note 54, at 146. Commentators praised the agreement, one lauding it as the single most comprehensive and detailed [intellectual property] enforcement agreement the United States had ever concluded. Id. at 148 (quoting Helen Cooper & Kathy Chen, China Averts Trade War with the U.S., Promising a Campaign Against PiracyFAccord also Opens Market to U.S. Movies, Music and Computer Software, WALL ST. J., Feb. 27, 1995, at A3).169 170 171 172 173

Id. at 14647. Feder, supra note 162, at 245. Id. at 245 n.138. Yu, supra note 54, at 148.

Anne Phelan, China Urged to Meet IPR Obligations, 17 E. ASIAN EXEC. REP. 5, 5 (1995). For example, when Microsoft created a Chinese version of Windows 95 with a planned retail price of $45, the product was already available in open markets one week before its release. Id. at 14849.174 175


The Clinton administration announced planned sanctions against $2 billion in trade goods. Id. at 14849. Within thirty minutes of the announcement, China responded with its own retaliatory sanctions on American products of equal value. Id. at 149.176

Lin, supra note 70, at 206.


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From the above history of U.S.China relations, a cycle of behavior becomes evident. The cycle begins with complaints by private American interests, resulting in threats by the U.S. government, followed by counterthreats by the Chinese government, eventual compromise and agreement, and ending with the subsequent lack of full implementation of the agreement resulting in the commencement of a new cycle of behavior.177 The cycle is summarized in Exhibit 1. This cycle, nonproductive as it may appear, has actually produced some positive, mostly short-term, results. China has improved its legal framework and has shut down some producers of pirated music.178 Chinese piracy, however, still remains rampant.179 In sum, the China Cycle of Coercion has not produced the wanted long-term objectives of U.S. policy. 2. The Delay Cycle: The Indian Reaction to U.S. Coercion India has responded differently than China to U.S. pressure. Instead of threatening American interests, India simply progresses toward compliance at the slowest pace possible that avoids sanctions. For example, during the GATT Uruguay Round, India was a leading opponent of making intellectual property a trade issue and was opposed to the development of the TRIPS regime.180 As TRIPS became a reality, India pursued the goals of meeting the TRIPS requirements at a glacial pace.181 Article 70.8(a)

177 178 179 180

This cycle has been adapted from Yu, supra note 54, at 13435. Yu, supra note 54, at 153. See supra text accompanying notes 11013.

Elaine B. Gin, International Copyright Law: Beyond the WIPO and TRIPS Debate, 86 J. PAT. & TRADEMARK OFF. SOCY 763, 781 (2004) (Particularly the Group of Ten (G-10) developing countries (Argentina, Brazil, Cuba, Egypt, India, Nicaragua, Nigeria, Peru, Tanzania, and Yugoslavia) vehemently opposed placing IP on the agenda of the Uruguay Rounds.).181 Even after 1995 Indian representatives still resisted the implementation of TRIPS. In November 1996, Indian lawmakers organized a conference to discuss intellectual property rights enforcement under TRIPS. N. Vasuki Rao, Anti-piracy Conference Turns, Instead, Anti-U.S., J. COMMERCE, Nov. 15, 1996, at 5A. The conference, organized by Indian anti-TRIPS lawmakers, quickly devolved into a bashing of the United States and an organizing of efforts to resist U.S. action on intellectual property. Id. When one Indian representative suggested that countries refuse to implement the TRIPS agreement until the United States repeals the Omnibus Trade and Competitiveness Act of 1998, it received significant support. Id.

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1. American executives complain about IP infringement and demand U.S. government coercive sanctions


5. Piracy levels temporarily decline, then rise again as both U.S. and target government attention focuses elsewhere

2. United States government threatens trade sanctions

4. U.S.and target nation reach compromise, often at the last minute

3. Target country retaliates with counter sanctions

Exhibit 1: The China Cycle of Coercion


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of TRIPS182 required that India amend its patent law to allow its patent ofce to accept submissions for pharmaceutical and agricultural chemical product inventions183 as required by TRIPS. Unfortunately due to a procedural mishandling of the TRIPS enabling legislation by the Indian Parliament, the amendment was not adopted at the time the patent ofce began receiving pharmaceutical and agricultural product patent applications from foreign interests.184 The United States grew impatient with Indian delays in enacting the required enabling legislation and placed India on its list of priority watch countries, opened an investigation into Indias failure to protect pharmaceutical and agricultural chemical product patents as required by TRIPS, and sought consultation with the WTO.185 The U.S. requested that the dispute settlement body determine whether India had failed to satisfy its obligations under TRIPS.186 The WTO Dispute Settlement Body concluded that India was in a state of noncompliance by not amending its patent legislation.187 India appealed, and the Appellate Body upheld the Boards ndings and conclusions.188 The decision was formally adopted by the WTO Dispute Settlement Body in January 1998 with a March 2, 1998 deadline for India to amend its patent legislation.182 See Report of the Panel, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Sep. 5, 1997, WT/DS50/R (1997), at para. 2.3 [hereinafter Panel Report]. 183 David K. Tomar, Note, A Look Into the WTO Pharmaceutical Patent Dispute between the United States and India, 17 WIS. INTL L.J. 579, 585 (1999). 184 On December 31, 1994, the President of India promulgated a patents ordinance that amended Indias Patents Act of 1970. However, Indian ordinances have the force of law provided that both houses approve of the ordinance within six weeks after the beginning of a new house of parliament. Srividhya Ragavan, Cant We All Get Along? The Case for a Workable Patent Model, 35 ARIZ. ST. L.J. 117, 143 (2003). The president was able to promulgate these changes because Article 123 of the Indian Constitution enables the president to legislate when one or both houses in parliament are not in session and the president is satised that circumstances exist which render it necessary for him to take immediate action. The previous year the Indian parliament had debated making the amendments that TRIPS required but adjourned without reaching the conclusion. Tomar, supra note 183, at 585. This is probably what led the Indian president to act according to his emergency powers. Id. 185 186 187 188

Id. Ragavan, supra note 184, at 144. Id. at 145. See also Panel Report, supra note 182, at z 8.1.

See Report of the Appellate Body, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Dec. 19, 1997, WT/DS50/AB/R (1997).

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The March 1998 deadline passed without compliance.189 The United States agreed to extend this deadline three times in order to work out a compromise on how to implement Indian patent legislation.190 In April 1998, the two parties informed the dispute settlement body that they had nally agreed upon a timetable for compliance giving India until April 19, 1999 to implement legislation.191 A temporary emergency measure was passed by the Indian Parliament in March 1999 in an attempt to comply with TRIPS.192 Meanwhile, the backlog of unprocessed patent applications exceeded 30,000.193 On February 21, 2000, U.S. pharmaceutical representatives requested that the USTR place India on the Priority Foreign Country list because of Indias refusal to adopt adequate and effective protection for pharmaceutical products and . . . their denial of equitable market access to U.S. rms.194 India, again under pressure from the United States, introduced the Patents Amendment Bill 1999 in the upper house on December 20, 1999 to have Indian patent law comply with TRIPS.195 The bill did not pass but it was referred to a committee for further review.196 In 2002, a revised bill was drafted to incorporate developing-country-favorable safeguards, which allows nations to initiate compulsory licensing of patented drugs in a national emergency.197 This revised bill, however, did not incorporate the products patent regime that Article 27 of TRIPS required.198

189 190 191 192

Tomar, supra note 183, at 589. Id. Id.

Ronald J.T. Corbett, Protecting and Enforcing Intellectual Property Rights in Developing Countries, 35 INTL LAW. 1083, 1097 (2001). Id.

193 194

Press Release, PhRMA, PhRMA Calls for Vigillance [sic] on Intellectual Property Protection; Recommends Argentina, Egypt and India as Priority Foreign Countries, at http://www.pharma.org/ mediaroom/press/releases///21.02.2000.20.cfm (Feb. 21, 2000).195 196 197 198

Ragavan, supra note 184, at 146. Id. at 148. Id. at 148 & n.312.

Id. at 148. Article 27 of TRIPS requires signatories to offer patent protection for any invention without discrimination as to the eld of technology. Bryan Mecurio, The Impact of the Australia-United States Free Trade Agreement on the Provision of Health Services in Australia, 26


347

On March 23, 2005, India nally passed into law.199 the required product patents regime for pharmaceutical, agricultural, and software products.200 Yet even the adoption of the law failed to resolve all the outstanding issues regarding TRIPS implementation. The law failed to resolve critical issues of data exclusivity for product patents and compulsory licensing of pharmaceuticals.201 Indias sluggish efforts to improve intellectual property rights have successfully allowed India to stave off full implementation of TRIPS and its stringent intellectual property standards. The India Cycle of Coercion (see Exhbit 2) is characterized by prolonged, graduated responses to U.S. coercive tactics. When India nally does respond, it usually completes the bare minimum necessary to avoid economic sanctions. The result is a frustratingly slow effort, at least from the perspective of the United States, in the improvement of intellectual property protections. Why does India react so differently than China to U.S. coercion? The answer lies at least in part with the unique nature of Indias economy and history. Twenty-ve years ago, Indian and Chinese citizens possessed similar per capita incomes.202 Today, Chinese incomes are nearly double that of their Indian counterparts.203 While China has embraced globalization and international trade, Indian economic reforms have been slower to take hold. A 1999 study compared Chinese and Indian practices toward trade in various areas such as agriculture, information technology, and

WHITTIER L. REV. 1051, 1094 (2005); Harris, supra note 46, at 106. For example, developing countries cannot treat patents protecting food, agriculture, medicines, and software differently than other patentable inventions. Id. This includes whether the patents are for products or processes. Id.199 Phrma Welcomes Passage of Patent Bill in India, (Mar. 23, 2005), available at http://www. phrma.org/news_room/press_releases/phrma_welcomes_passage_of_patent_bill_in_india/.

Patents Bill: Govt takes Left on board, Business Standard, Mar. 19, 2005, at 1 (available at 2005 WLNR 4249411).201 Patently Unclear: A Crucial New Intellectual Property Regime Disappoints, THE ECONOMIST, Jan. 22, 2005, 63.

200

A.V. Rajwade, India and China: A Comparison, Jan. 18, 2005, at http://www.rediff.com/money/ 2005/jan/18guest.htm. See generally Subramanian Swamy, The Economic Distance Between India and China, 195573, 70 CHINA Q. 371 (1977).203

202

Id.

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1. American executives complain about IP infringement and demand U.S. government coercive sanctions


5. Target country improves regime the minimum amount necessary to stave off U.S. punitive measures

2. United States government threatens trade sanctions

4. United States demands increased results; moves to impose sanctions

3. Target country moves as slow as possible toward complying with U.S. demands

Exhibit 2: The India Cycle of Coercion


349

services.204 The study found China possessing equal or superior open market regulations to India in all eight categories studied.205 Whereas Chinese infrastructure improvements backed by foreign agreements move speedily along once government approval has been given, litigation and political debate have significantly slowed equivalent improvements in India.206 India may lose foreign direct investment as a result.207 India lacks a Chinese equivalent of a Hong Kong that can efciently nance commercial activity throughout the country.208 As a result, India lacks the bargaining power that China possesses to negotiate from a position of strength with the United States.209 The delay cycle of coercion, however, has worked with a degree of success for India. India even today has still not fully complied with TRIPS and U.S. governmental and private interests continue to apply pressure in order to achieve additional progress in this area. The Indian response tactics to U.S. coercion provides a model for other developing countries, such as Brazil and Russia, that do not possess sufcient strength to respond directly to U.S. threats with countersanctions. The lesson from the India Cycle of Coercion is not that U.S. coercion is not strong enough, but rather that coercion alone cannot produce a successful long-term result of protecting intellectual property rights internationally.

204 Daniel H. Rosen, China and the World Trade Organization: An Economic Balance Sheet, Institute for International Economics Policy Brief 99-6, available at http://www.iie.com/publications/pb/ pb.cfm?ResearchID=93. 205 206

Id.

Danielle Mazzini, Stable International Contracts in Emerging Markets: An Endangered Species?, 15 B.U. INTL L.J. 343, 359 (1997). See also Jayanthi Iyengar, India v. China: Its all in the Mind, ASIA TIMES Nov. 19, 2002, available at http://www.atimes.com/atimes/Asian_Economy/ DK19Dk01.html. Mazzini, supra note 206, at 359 (Many investors compare China and India when determining where to invest . . . [and] China may have the edge.); Iyengar, supra note 206, at 2 (As of today, China is undoubtedly an attractive investment destination, with consumer demand growing at rates far exceeding expectations. This is unlike India, which has proved expert estimates wrong[.]). Jesse Parker, The Lotus Files: The Emergence of Technology Entrepreneurship in China and India, 26 FLETCHER F. WORLD AFF. 119, 132 (2002).209 E.g., Iyengar, supra note 206, at 1 ([China] already gures on the list of the US for exclusive trading partners, rubbing shoulders with Canada, Mexico and Japan. The admission threshold for this exclusive club is US$120 billion in two-way trade.). Indias trade with the United States nowhere reaches this amount. Rosen, supra note 204, at 5. 208 207

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IV. INTERNATIONAL BARGAINING UNILATERAL INITIATIVES

AND THE

USE

OF

As shown in Part III above, a common response to a nations undesirable behavior is to impose sanctions until the target nation ceases that behavior. It showed that sanctions generally have limited or short-term success in the context of intellectual property rights. This part will discuss the use of unilateral initiatives as a strategy to establish long-term change in intellectual property protection in the BRIC countries. This part denes unilateral initiatives and explains the difference between a unilateral initiative strategy and a reciprocal strategy of bargaining. It will then offer real-world examples of private enterprises using unilateral initiatives to successfully navigate difcult foreign markets while still protecting their intellectual property. This part concludes that unilateral initiatives can play a significant role in protecting intellectual property rights in the BRIC countries. A. The Unilateral Initiative as a Bargaining Tool A unilateral initiative is dened as a voluntary, conciliatory action presented by one party to the benet of the other.210 A unilateral initiative is neither conditioned upon past compliant conduct or immediate expectation of future compliance.211 Unilateral initiatives are not merely gifts, but constitute any action that is taken without immediate expectation of response from the receiving party. Unilateral initiatives are usually considered to be positive, but do not necessarily have to present positive benets to the receiving party. Unilateral initiatives may also be used positively to benet the receiving party and negatively to impose punishment, sanctions, or economic harm. This article concentrates on the use of unilateral initiatives that promote positive change for both the initiator and the recipient. The modern theory of unilateral initiatives originates from Charles Osgoods 1962 book titled The Alternative to War or Surrender.212 Osgood

E.g., Michael D. Large, The Effectiveness of Gifts as Unilateral Initiatives in Bargaining, 42 SOC. PERSP. 525, 526 (1999) (dening unilateral initiatives as a series of non-contingent conciliatory gestures from one party to another.).211 212

210

Id. See CHARLES OSGOOD, THE ALTERNATIVETO

WAR

OR

SURRENDER (1962).


351

sought to describe an effective method for reducing tensions between the Soviet Union and the United States.213 He devised a theory called GRIT, Graduated and Reciprocated Initiatives in Tension Reduction. The GRIT theory held that if graduated and reciprocal negative action can increase tension between the parties, then graduated and reciprocal positive action can reduce tension and build trust necessary for conciliatory action.214 Unilateral initiatives differ from the commonly practiced reciprocal strategy and this distinction is worth noting. Reciprocity in the context of bargaining involves a matching strategy in prisoners dilemmastyle games whereby a bargaining party chooses the same action taken by its opponent in the immediately preceding trial.215 A cyclical tit for tat strategy of reciprocal matching enables parties to cooperate for mutual gain without risking exploitation by the opposing party.216 The goal is to establish a pattern of reciprocation based upon prior conduct. Pure reciprocity,217 however, is not without risks. Pure reciprocation depends upon the mutual participation of both parties, but nothing more. Parties can simply conduct implicitly or explicitly agreed-upon positive exchanges at specied times. What holds the parties together in such exchange conditions is merely the expectation that the act by one party will result in a reciprocal response by the other. As a result, reciprocation strategies without more are vulnerable to collapse. The motives and intentions of both parties may be ambiguous. An act considered by the initiator to be a sufciently reciprocal act might be interpreted by the receiver as insufciently reciprocal or a negative response. Parties might

213 214

Id.

Id. at 8598. See also Svenn Lindskold & Michael G. Collins, Inducing Cooperation by Groups and Individuals, 22 J. CONFLICT RESOL. 679, 689 (1978).215

Elizabeth Heger Boyle & Edward J. Lawler, Resolving Conict through Explicit Bargaining, 69 SOCIAL FORCES 1183, 1185 (1991).

See generally Nehemia Friedland, Attribution of Control as a Determinant of Cooperation in Exchange Interactions, 20 J. APPLIED SOC. PSYCHOL. 303 (1990).217 I dene a purely reciprocal relationship as one that is based solely on the mutual exchange of agreed-upon benet over time that is dependent upon issuance of payment and response. No contract exists between the parties. Rather, it is a relationship that continues solely because of the persistence of the repeated exchange.

216

352


also exploit reciprocal patterns for short-term nancial benets or submit to political pressure from competing interests.218 When one party defects, even temporarily, from reciprocation or another party views a partys behavior as insufciently reciprocal, rapidly escalating negative action is likely. A nation that perceives itself insufciently recompensed for its prior generosity could simply respond with a negative sanction to punish the supposed wrongdoer. That would promote an immediate negative response or counter-sanction. A positive reciprocation norm could easily devolve into a negative one. Nations previously responding in kind to assist one another could devolve into a cycle of retribution. The likelihood of devolution into a cycle of retribution is facilitated by the fact that punishing a foreign nation is politically easier to accomplish than rewarding a friendly one. Local interests injured by cooperative behavior, such as subsidized local producers injured by free trade agreements, may seize on the perceived insufciently reciprocal act as justication for a change of policy. Further, sanctions are easier to implement. A simple law imposing tariffs on imports is easier to draft and implement than a foreign assistance program. Finally, a national response to insufcient reciprocation might even trigger vengeful acts. Whereas retribution implies a proportional response to a misdeed,219 revenge seeks not only to compensate for the harm but also to punish the wrongdoer.220 The result may be a negative reciprocity behavior that is exponentially more harmful than the benets achievable through positive reciprocity. The devolution into retribution results in the nations being locked in to a pattern of mutual resistance and hostility.221 When a lock-in occurs, restarting a mutually benecial reciprocal relationship becomes nearly impossible. Reciprocal bargaining relationships lack an essential component to a successful relationshipFtrust. Trust is the expectation that another person will cooperate in a situation with multiple options.222 Trust is also a state ofS.S. Komorita et al., Reciprocity and Cooperation in Social Dilemmas, 35 J. CONFLICT RESOL. 494, 496 (1991).219 220 221 222 218

Id. at 787. Id. Boyle & Lawler, supra note 215, at 1185.

Edward J.

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