Intellectual property enforcement in Asia: A reality check

International Journal of Law and Information Technology

Volumn 13, Issue 3, 2005, Pages 378-412

  Endeshaw, Assafa ^a  

^a UNIVERSITY OF WOLVERHAMPTON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 28444471213     PISSN: 09670769     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijlit/eai018     Document Type: Review

References (161)

1. Reader in Information Law, School of Legal Studies, University of Wolverhampton, Molineux Street-Wolverhampton WV1 ISB United KingdomFax No: (44) 1902 322696 E-Mail: A.Endeshaw@wlv.ac.uk. The paper was originally presented at the conference, 'Recent Developments in and Enforcement of Asian IP Law', organised by the Fordham University School of Law and IP Academy Singapore at the Fordham University School of Law, New York, 14 April 2004.
2. A characterization by the Indian Minister for Investment, Information Technology and Communications at a speech he made at the 'NAM Business Forum' during the Non-Alignment Movement (NAM) meeting in Kuala Lumpur last year. See, 'Help Remedy Imbalances at WTO, NAM Business Forum Told', Malaysia General News, Petaling Jaya [Malaysia], February 23, 2003. Available online from Lexis-Nexis
3. Federal Information and News Dispatch, Inc., State Department, 'Zoellick Reiterates Trade Negotiating Authority Push; Cites multilateral, regional, bilateral goals in 2002', March 19, 2002. More recently, the Assistant Secretary of Commerce William Lash warned the Philippines that it 'would not be able to attract more investments and become more globally competitive if it fails to crack down on counterfeiters, particularly those selling and exporting pirated disc and VCDs.' See, 'US loses millions to piracy in Philippines', Agence France Presse, 2 February 2004. Available online from Factiva.
4. Sari P. Setiogi, 'Government has finalised regulation on optical disks', The Jakarta Post, 6 February 2004, at 13. Available online from Factiva
5. Janet Reno, the former Attorney General of the US, commented on the rise of 'economic espionage' targeting 'U.S. firms, with high-tech companies the most frequent targets' before adding: 'For developing nations, the stakes are higher still. Countries that fail to protect intellectual property will witness the exodus of their best talent, a loss ofjobs and tax revenues, a nutrient environment for official corruption and an increase in crimes financed by intellectual property theft.' See Janet Reno, 'The Threat of Digital Theft: Intellectual property theft is faster, costlier and more dangerous than ever', December 25, 2000; available at http://www.usdoj.gov/criminal/cybercrime/AGdigitaltheft.htm.
6. The chairman of the Indonesian Intellectual Property Society similarly asserted that the loss of profits by Indonesian companies translated into lost investment, jobs and taxes. See, Novan Iman Santosa, 'Antipiracy campaign launched', The Jakarta Post, 9 March 2003. Available online from Factiva.
7. See Reno, note 5, above,
8. ibid.
9. The Economist Intelligence Unit puts it thus: 'Overall, China's technology base remains limited and the capital infrastructure needed to produce advanced, high-tech goods largely absent. And while more and more high-tech goods are made in China, almost all the value is being captured by foreign companies ... While foreigners own virtually all the intellectual property and most of the high-tech manufacturing capacity in China, piracy will remain an issue.' See, The Economist Intelligence Unit - Ebusiness forum, 'The Economist: The allure of low technology in China', Number 324, 16 January 2004. Available online from Factiva.
10. A seven-judge panel of the Norwegian appeals court unanimously agreed with a lower court's ruling that a certain Jon Johansen who had devised a program that could crack the encryption for DVDs and then posted it on the Internet for others to use had not violated that country's copyright laws. Circum-venting copyright protection devices for personal use is apparently acceptable to Norway. Tbe prosecutors dropped their plan for further appeal to Norway's supreme court. See, 'Anti-piracy forces lose appeal', The San Diego Union-Tribune, 23 December 2003, at 1,7, C-3. Available online from Factiva.
11. 'Taiwan should stay on U.S. IPR List: Expert', The China Post, 7 February 2004 (reporting on the speech of Eric Smith, President of the International Intellectual Property Alliance (IIPA), testifying before the US-China Economic and Security Review Commission). (Available online from Factiva). Smith iterated that 'ultimately, effective protection of intellectual property is a 'political will issue. If you want to do it, it's not that hard'.
12. Ibid.
13. C. Antons, 'Legal Culture and History of Law in Asia', in Intellectual Property Law in Asia, London: Kluwer Law International, 2003, by Christopher Heath (ed.), at 13-35.
14. Arthur Wineburg, 'Jurisprudence in Asia: Enforcing Intellectual Property Rights', 5 University of Baltimore Intellectual Property Law Journal 25, Fall, 1996 / Spring, 1997. Available online from Lexis-Nexis.
15. Sari P. Setiogi, 'Government has finalised regulation on optical disks', The Jakarta Post, 6 February 2004, at 13. Available online from Factiva
16. Braema Mathi, 'Singaporeans do not fight shy of pirated CDs', The Straits Times [Singapore], 22 October 1999, at 38.
17. Ibid.
18. Ibid.
19. Ilhyung Lee, 'Culturally-Based Copyright Systems?: The U.S. And Korea In Conflict', Wash. U. L. Q. 1103, Winter 2001. Available online from Lexis-Nexis.
20. Kyu Ho Youm, 'Copyright Law in the Republic of Korea', 17 UCLA Pacific Basin Law Journal 276, Fall, 1999 / Spring, 2000. Available online from Lexis-Nexis.
21. Chung Hwan Choi, 'Protection of Artists' Rights Under the Korean Copyright Law', 12 Pacific Rim Law & Policy Journal 179, January 2003. Available online from Lexis-Nexis.
22. Roughly speaking, 'multi-national companies' (MNCs) are those companies registered and operating in as many countries as they can. They have such huge resources at their command that they spread their networks of manufacturing and/or services across the world. In recent decades, some of the bigger MNCs have been referred to as 'global companies' because, with the onset of the information and communications technologies (ICT), their operations run on a 24/7 basis and virtually never stop.
23. Refereed to in Jane Innes and Tim Turpin, Intellectual property legislation and innovation in Asia-Pacific economies: Case studies of intellectual property law in Australia, China, Indonesia, Korea, the Philippines and Thailand, Ormond, Vic.: Hybrid, 1999, at 8.
24. Available at http://www.uis.unesco.org.
25. Compare the number of patents of Asian Non-ICs in Table 2, above, with that of the major MNCs in 2000: IBM, 2922; NEC 2034, Canon 1897, Samsung Electronics, 1442, Lucent 1415.
26. See, Barbara Darrow, 'IBM Leads Patent Pack - Again', TechWeb News, 10 January 2001. Available at http://www.techweb.com/wire/story/ TWB20010110S0008.
27. Tessa R. Salazar, 'Filipino Inventors Lack Gov't Support', Philippine Daily Inquirer, November 15, 2003. Available online from Factiva.
28. Ibid.
29. Ibid
30. Annie Freeda Cruez, 'Creating wealth out of intellectual property', New Straits Times, 8 January 2004, at 13 (reporting the views of two business leaders during a press interview). Available online from Factiva.
31. Ibid.
32. See, e.g., Edith T. Penrose, The Economics of the International Patent System Baltimore: John Hopkins, 1951;
33. Helge E. Grundmann, 'Foreign Patent Monopolies in Developing Countries: An Empirical Analysis', 12 J. Dev. Stud. 186 (1976);
34. A. Samuel Oddi, 'The International Patent System and Third World Development: Reality or Myth?', 1987 Duke L.J. 831 (1987);
35. P.S. Sangal & Kishore Singh eds., Indian Patent System and Paris Convention: Legal Perspectives., Delhi: Ashoka Printers, 1987;
36. A. Endeshaw, Intellectual Property Policy for Non-Industrial Countries, Dartmouth, 1996.
37. Robert M. Sherwood Intellectual property and economic development, Boulder: Westview Press, 1990, at 159-178 (an entire chapter on 'The Myth of Weak Protection').
38. See, generally, Paul C.B. Liu, 'U.S. Industry's Influence on Intellectual Property Negotiations and Special 301 Actions', 13 UCLA Pacific Basin Law Journal 87, Fall, 1994.
39. Thus the European Commission recently conducted a survey (of its delegations abroad, rights holders and businesses) on enforcement issues 'with the objective of assessing in a detailed manner the current situation in third countries and identifying the most problematic intellectual property areas and countries.' See, [European Commission] 'Survey on enforcement of intellectual property rights in third countries, July 2003'; available at http://europa.eu.int/comm/trade/ issues/sectoral/intell_property/survey_en.htm.
40. It is interesting that the survey was described as 'a diagnostic allowing DG Trade, and the Commission services to act more efficiently and to develop a dear strategy to tackle the growing problems caused by violations of IPR and by the deficient enforcement of such rights in third countries.' Ibid. In other words, the EC was not planning to dish out instructions to other nations or threaten to take action.
41. See generally, F.K. Beier and G. Schricker (eds.), GATT or WIPO? New Ways in the International Protection of Industrial Property, VCH Verlag, Weinheim, 1989.
42. [Ministry of Economy, Trade and Industry, Japan] The Report of the Task Force on Industrial Competitiveness and Intellectual Property Policy, June 5, 2002, (available at http://www.jpo.go.jp) states that 'Japan has been approaching countries and regions where counterfeit infringement is grave by asking them to improve the situation. Japan has helped developing countries to enrich their intellectual property systems by such means as cooperation in training for intellectual property-related human resources...'
43. Ibid., at 5-6.
44. As regards China, the Report specified that the Japanese government took 'actions toward the Chinese government such as presenting specific cases of damages and requesting crackdowns as well as requesting the strengthening of export regulations based on Japanese experience.' Ibid., at 36.
45. Japanese industry groups such as automobile manufacturers have sent delegations to China to present their grievances to the government and request their counterparts to crackdown on infringements. Ibid.
46. In publicising the 2003 Report. Japan's Ministry of Economy, Trade and Industry pointed out 'the biggest problem that Asian countries have in common to be that of intellectual property right infringement from the production and distribution of pirated copies, counterfeits and other illicit goods.' See, Ministry of Economy, Trade and Industry, 2003 Report on the WTO Consistency of Trade Policies by Major Trading Partners, 28 March, 2003; available at http://www.meti.go.jp/english/ report/.
47. After naming China, Taiwan and Korea as 'the three largest offenders', it added, 'the region does not have sufficiently effective enforcement procedures for exercising rights and eliminating infringement, though countries are in the process of enhancing their legal systems for the protection of intellectual property.' Ibid.
48. See, [USTR], 2003 National Trade Estimate Report on Foreign Trade Barriers, available at http://www.ustr.gov/reports/nte/2003/index.htm.
49. Ibid.
50. Ibid.
51. Ibid.
52. Ibid.
53. Ibid.
54. Ibid.
55. Ibid.
56. Ibid.
57. Ibid.
58. See 'Taiwan expresses regret over being placed on US counterfeiting list', Agence France Presse, 2 May 2003. Available online from Factiva.
59. See, [USTR], 2003 National Trade Estimate Report on Foreign Trade Barriers;
60. note 34, above,
61. ibid
62. Ibid.
63. Ibid.
64. Ibid.
65. Ibid.
66. It has been reported that 'The US is perennially the largest foreign investor in Thailand, with US foreign direct investment in Thailand totaling over $.7 billion in 2001.' See, 'US and Thailand Sign Bilateral TIFA', Thai Press Reports, 31 October 2002. Available online from Factiva.
67. According to one (not necessarily objective) commentator, 'since the anti-terrorism war was launched, people in the Middle East have become increasingly disgusted with US products. Before the United States started war against Iraq, US exports to the Middle East region dropped by 25 per cent-40 per cent. McDonald's declared that it would close 175 branches in 10 Muslim countries, Coca Cola's sales volume also began to go down'. See, 'Price paid for victory of "hard strength", People's Daily Online, 13 February 2004. Available online from Factiva.
68. For instance, at the end of workshop organised at one Nigerian university, a declaration was issued: 'In order to reduce the strength with which the USA uses to coerce us we call on all Nigerian Muslims to boycott USA and Israeli goods and services as much as possible.' A list of US brands then followed. See, Workshop on Middle East Crisis and the American Global Agenda Organised by the Abubakar Sadiq Research Centre Held at Bayero University, Kano on 13/07/2002; available at http://www.gamji.com/NEWS1501.htm.
69. President Bush called it 'the first of its kind between the United States and an Asian Pacific country.' See, The White House, Office of the Press Secretary 'President Signed US-Singapore Free Trade Agreement' 6 May 2003. Available at http://www.whitehouse.gov/news/releases/2003/05/ 20030506-11.html.
70. In an interview with the local press, a vice-president of the US Borland Software Corporation commented on the Singapore-US FTA, 'We heard Singapore was going the path of the FTA with US, with the most stringent IP protection of any Asian country. That was attractive to us ... It will be the gold standard. There will be a domino effect in raising IP standards and opening up foreign markets.' See, 'Increased intellectual property protection a draw for business', Straits Times [Singapore], 5 December 2003. (Available online from Factiva.) He added, 'Even as software companies lose billions each year to piracy, FTAs are a good platform for them to play a part in changing IP laws in other countries.'
71. Ibid.
72. The Singapore Prime Minister thus stated in his speech at the signing of the agreement in Washington: 'The US-Singapore FTA can be a model for other FTAs under President Bush's Enterprise for ASEAN Initiative, or EAI.' See, note 53, above,
73. ibid
74. Phusadee Arunmas, 'Intellectual Property - US - More stringent action on piracy or no FTA talks', Bangkok Post, 21 January 2004 at 3. Available online from Factiva.
75. Ibid.
76. Ibid.
77. One commentator points out that the non-recognition of patents for drugs by India has been 'the most significant price-restraining factor' and that prices have remained low. See, S. Venu, 'The IPR effect on drug prices', Business Line (The Hindu), 28 October 2002. (Available online from Factiva.) The writer projects, by reference to studies, 'as Indian patents are introduced in the coming decade, prices are likely to be substantially higher on newly patented drugs than they would otherwise have been.'
78. Ibid.
79. One commentator wrote, 'I'm not ashamed to say that I used to rely on pirated software when I was in school, since that was the only way to get it ... I needed the tools for my assignments and may allowance definitely wasn't enough to pay for original software ... my pockets weren't deep enough to act 'ethically". See, Eileen YU, 'Opinion: Overpriced software makes users unwilling 'thieves", Computer Times that someone would choose to pay [the market price of the original] so the money would got to a developer that sits in a remote laboratory in a remote part of Silicon Valley.'
80. Ibid.
81. The writer concluded that 'the most effective way to battle piracy is to bring down the prices further.' Ibid.
82. 'Commerce Ministry wants price of CDs cut', Business Daily [Thailand], 6, May 2003. Available online from Factiva.
83. Braema Mathi, note 13, above,
84. ibid.
85. Brendan Pereira, 'Piracy Woes: Malaysia's entertainment industry is calling for tougher action against copyright infringement', The Straits Times [Singapore], March 2003, at A7.
86. Ibid.
87. Ibid.
88. Sheridan Mahavera. 'Muhyiddin criticises industry players', New Straits Times (Malaysia), 7 July 2003, at 4 (reporting on the statement of the Domestic Trade and Consumer Affairs Minister regarding the proposed price control and the failure of the industry to heed the government's voluntary price reduction to stave off piracy). Available online from Factiva.
89. The minister argued thus: 'This is a problem of the industry's mindset. That is why the Government has to step in this way. They underestimated the problem of piracy and they don't understand the Malaysian mentality.' Ibid
90. Reme Ahmad, 'KL spurns US warning on CD price-fixing', The Straits Times [Singapore], 9 July 2003. Available online from Factiva
91. 'Government Fixes Rm 14 as New VCD Price', Bernama Daily Malaysian National News, 17 September 2003. Available online from Factiva.
92. Matthew Broersma, 'Microsoft offers cut-rate Windows', C/Net. News.com, 9 February 2004.
93. Ibid.
94. Foo Eu Jin, 'Open source way to combat piracy', New Straits Times-Management Times [Malaysia], December 15, 2003. Available online from LexisNexis Academic.
95. Eddie Lee, 'Taking the Mickey out of innovation', Straits Times 20 January 2004. Available online from Factiva.
96. Ibid.
97. 'Hong Kong a world leader in illegal downloading - survey', Agence France Presse, 15 January 2004. Available online from Factiva.
98. 'India: Licensing and intellectual property' Economist Intelligence Unit - ViewsWire, Number 301, 6 January 2004. Available online from Factiva.
99. Ibid.
100. Ibid
101. 'Foreign firms admit they use pirated software' Straits Times [Singapore], 26 September 2001. Available online from Factiva.
102. Shawn W. Crispin, 'Innovation', Far Eastern Economic Review, 8 January 2004, at 30.
103. Ibid.
104. Ibid.
105. Ien Cheng, 'Blockbuster drops expansion plan in China', Financial Times, 30 January 2004. Available online from Factiva.
106. 'Time Warner, Wanda Group to open 30 cinemas in China over next 3-4 yrs - Xinhua', AFX Asia, 19 January 2004. Available online from Factiva.
107. Ibid.
108. 'KL plans tougher laws on copyright', The Straits Times [Singapore], March 19, 1999, at 35.
109. Ibid.
110. 'M'sia. Stands to Gain US$200 Mln if Piracy is Reduced' (Malaysian National News Agency) Malaysia Economic News, Kuala Lumpur, Dec 1, 2003. Available online from Factiva.
111. Ibid.
112. 'Police target night market in pirated goods raid', The Straits Times [Singapore], July 8, 2002, at H5.
113. Chong Chee Kin, 'S'pore's anti-piracy efforts win global recognition', The Straits Times [Singapore], July 14, 2000, at 4 (quoting a TDB official reacting to the news of WTO's acceptance of the compliance of Singapore's IP regime to TRIPs).
114. Leslie Koh, 'New stat [statutory] board to help market inventions', The Straits Times [Singapore], April 3, 2001, at H5.
115. Ibid.
116. 'Drive to make firms IP-savvy and mint money' The Straits Times [Singapore], November 9, 2002, at H9.
117. Amit Roy Choudhury, 'S'pore stands to gain US$1b by reining in piracy', The Business Times [Singapore], 20 May 2003 (reporting on a study of the International Data Corporation (IDC) for the Business Software Alliance (BSA) and the benefits to Singapore in terms of new jobs created and revenues). Available online from Factiva.
118. Zeng Qingkai, 'IPR Protection Noted at Fair', China Daily, 10 September 2002 (reporting on a seminar in Xiamen during the Sixth China International Fair for Investment and Trade). Available online from Factiva.
119. Ibid.
120. Ibid.
121. Ibid.
122. 'Hong Kong Stars march against piracy', The Straits Times [Singapore], March 18, 1999, at 1.
123. Ibid.
124. Lawrence Chung, 'Gunning for the music pirates', The Straits Times [Singapore], April 5, 2002 at A1.
125. Ibid.
126. Lim Seng Jin, 'Anti-piracy drive targets buyers', The Straits Times [Singapore], December 9, 1998, at 3.
127. TCS in Talks With US Auto Major on R and D (both companies to jointly conduct R and D and to share intellectual property rights of R and D outcome)', Business Standard [India] 19 January 2004, at 1 (reporting on negotiations between Tata Consultancy Services (TCS) and unnamed US automakers). Available online from Factiva.
128. Ibid.
129. 'India: The Big Idea Hub of Patents (large amount of intellectual property is being created for US companies in India)' Times of India (New Delhi). 4 January 2004, at 1. Available online from Factiva.
130. 'HelloSoft To Ramp Up India Headcount, Build Intellectual Property In 3G', Financial Express, 29 December 2003. Available online from Lexis-Nexis.
131. Amit Chanda, 'Copyright Cases Involving American Commercial Icons Highlight Chinese Intellectual Property Issues', WWRC Daily Analysis, 9 January 2004. Available online from Factiva.
132. Ibid.
133. See, http://www.info.gov.hk/ipd/eng/information/studyaids/ pub_ed_in_hk_c.htm
134. Hong Kong General Chamber of Commerce, 'Press Release: Chamber Develops Code of Ethics on IPR Protection', 21 June 2000; available at http://www.chamber.org.hk/info/press_release/2000/000621.asp
135. Somporn Thapanachai, 'Intellectual Property - Famous Thai names need protection', Bangkok Post, 20 December 2001, at 1. Available online from Factiva.
136. Ibid.
137. Ibid.
138. 'Thais fight to keep tuk-tuk trademark', The Straits Times [Singapore], January 4, 2002 at A6.
139. Ibid.
140. 'Government urges Thai firms to register trade marks', Business Day [Thailand], 7 January 2002. Available online from Factiva.
141. 'Thai government to safeguard 'tuk-tuk' name worldwide' Associated Press Newswires [Bangkok, Thailand], 13 February 2002. Available online from Factiva
142. Ibid.
143. Edward Tang, 'Trademark violation - Thais now on receiving end', The Straits Times [Singapore] 20 July 2002, at 6.
144. Brendan Pereira, 'Piracy Woes: Malaysia's entertainment industry is calling for tougher action against copyright infringement', The Straits Times [Singapore], March 2003, at A7.
145. 'Authors team up to collect copyright dues' The Straits Times [Singapore] January 28, 2000, at 71.
146. Kelvin Wong, 'Officers go lightly on 'Tiffany' sellers', South China Morning Post, 19 November 2003. Available online from Factiva.
147. Arun Sudhaman, 'Brand IDs under attack in China', Media, 12 December 2003. Available online from Factiva.
148. Ibid.
149. Ibid.
150. Ibid.
151. Ibid.
152. See, http://www.ecap-project.org/ecap/site/en/
153. Comprehensive Strategy on IPR Protection in APEC', submitted by Japan at the XVII Intellectual Property Experts' Group Meeting, Vancouver, Canada 8-9 July 2003, 2003/IPEG/024.
154. 'Philippine House Ratifies Anti-Piracy Bill', Asia Pulse, 29 January 2004. Available online from Factiva.
155. Flor Wang, 'Taiwan Efforts 'noticeable' in cracking down on IPR violations', Central News Agency (Taipei), 13 January 2004.. Available online from Factiva.
156. Ibid.
157. 'US urged to recognise Taiwan's efforts in IPR protection', Asia Pulse [Geneva], 15 January 2004. Available online from Factiva.
158. Ibid.
159. 'Seoul suspects US motives for retaliatory step', Korea Times, 10 January 2004. Available online from Factiva.
160. Ibid.
161. Ibid.