Intellectual property and Asian values.

• Author: Yu, Peter K.
• Position: I. Introduction through II. The Asian Values Debate, p.329-370 - International Intellectual Property Scholars Series

1. INTRODUCTION 330 II. THE ASIAN VALUES DEBATE 336 A. Human Rights 336 B. Intellectual Property 339 1. Cultural Developments 340 2. Economic Developments 351 3. Geopolitical Rivalries 365 III. CHINDIASEAN 370 IV. AGENDA 378 A. Traditional Issues 379 1. Enforcement 379 2. Traditional Knowledge and Cultural Expressions 380 3. Geographical Indications 382 4. Access to Essential Medicines 383 5. Internet and Other New Technologies 385 B. New Issues 388 1. Climate Change 388 2. Alternative Innovation Models 389 3. Special and Differential Treatment 392 4. Uneven Economic and Technological Developments 395 5. Abuse of Rights and Restraint on Trade 396 C. Summary 397 V. CONCLUSION 398 I. INTRODUCTION

   In the past few years, many scholars and commentators have explored why the West has been more economically developed and technologically advanced than other parts of the world. In his new book, Civilization: The West and the Rest, renowned historian Niall Ferguson identified six "killer applications" that have helped the West achieve its rise to global dominance. (1) In a cautiously titled book, Why the West Rules--for Now, archaeologist-historian Ian Morris also questioned why the West has dominated the globe for the past two centuries and whether such dominance would continue amid the rise of China, India, and other emerging powers. (2) Using a different entry point, Newsweek International editor Fareed Zakaria explored the "rise of the rest," discussing how global powers could shape up in what he called the "Post-American World." (3) Although all of these books carry a mostly positive message, they were all written against a background of growing worries that the West will eventually lose its competitive edge.

   Indeed, the release of these books has coincided with the growing attention commentators are now paying to the rise of Asia. While some wonder whether the twenty-first century will be the Asia Century, (4) others have examined the growing role of the so-called BRICs countries, (5) which initially included Brazil, China, India, and Russia but have now been generalized to cover other emerging middle-income countries, such as South Africa. (6) A growing number of books have also looked at the role of China and India in Africa and Latin America. (7)

   Some even contrast the oft-criticized "Washington Consensus" (8) with the "Beijing Consensus," a term coined by former Time foreign editor Joshua Ramo. (9) In March 2011, the Associated Press launched the global economic tracker, examining developments in emerging developing countries. (10) As the press reasoned, these developments are likely to have important global implications ranging from increased prices for raw materials to an accelerated pace of global economic recovery. (11)

   The last time policymakers and commentators paid such an enormous amount of attention to Asia was two decades ago, amid the rise of Japan and other newly industrialized countries. The elevated status of these countries, in turn, led some Asian leaders to declare the need to recognize, promote, and protect the so-called "Asian values," which they claimed had provided a formula for economic success, (12) or the so-called "East Asian miracle." (13) Although today's discourse seems to be going in the same direction as that of two decades ago, it is actually quite different. The present discourse is not simply about the economic rise of Asia. Rather, it touches on how China, India, and other countries in the region have greatly improved their competitiveness and technological capabilities. To some extent, these countries are now threatening to compete with the West on its home turf while playing its own game.

   Indeed, a growing volume of literature has now focused on the role of the BRICS countries in the international intellectual property system (14)--an area that was once dominated by Western developed countries. Such literature complements nicely the ever-growing volume of books and articles on intellectual property law developments in China and India. (15) In a recent article, leading international intellectual property scholar Jerome Reichman questioned whether developing countries should follow the developed countries' lead in adopting their intellectual property system or whether they should lead in the knowledge economy by building their own comparative advantages. (16) As he declared:

   To the extent that intellectual property laws do play an ancillary but important role, there are, roughly speaking, two different approaches on the table. one is to play it safe by sticking to time-tested IP solutions implemented in OECD [Organisation for Economic Co-operation and Development] countries, with perhaps a relatively greater emphasis on the flexibilities still permitted under TRIPS (and not overridden by relevant FTAs). The other approach is to embark on a more experimental path ... that advanced technology countries currently find so daunting. (17) One set of questions commentators have yet to explore concerns whether Asian countries will take unified positions on international intellectual property law and policy. Can we identify any underlying "Asian values," approaches, or practices in the area? Are the developments in Asia homogenous enough to foster common positions within the region? Does it matter whether any of the Asian countries can attain hegemonic status on the continent? If Asia indeed will assume a more dominant global role in the future, as commentators have claimed, which countries will be involved, how will they be involved, and what issues will be found on their policy agendas?

   These questions are important for at least two reasons. First, given the growing attention scholars have paid to Asia and the so-called BRICS countries, a systematic analysis of the role these countries will play in future international intellectual property negotiations is likely to provide a better understanding of the international intellectual property system. Second, intellectual property industries have repeatedly criticized China and Southeast Asian countries for their widespread piracy and counterfeiting problems. (18) A better grasp of Asian developments will certainly help anticipate those challenges confronting the international intellectual property system.

   Part I of this Article examines intellectual property developments in relation to the decades-old "Asian values" debate. Although the debate began in the human rights context, this Part uses the debate as a starting point to evaluate whether Asian cultures, practices, and conditions can help provide the needed rallying force to help Asia establish unified positions on intellectual property law and policy. This Part further examines the region's diversity in economic and technological developments and the continuous rivalry among the different regional powers. This Part concludes that one can neither locate any distinct values, approaches, or practices on intellectual property law and policy nor identify any established pan-Asian positions in the area.

   Part II explores the role Asian countries will play if these emerging countries exert more influence on the development of the international intellectual property system. Drawing on the earlier discussion concerning how Japan and, to some extent, South Korea are unlikely to team up with other Asian countries to develop a united front for the Asian developing world, this Part contends that Asian countries as a group may not be able to establish a position comparable to that of the European Union or the African Group. Nevertheless, this Part argues that, if China, India, and members of the ASEAN (Association of Southeast Asian Nations) (19) agree to team up to form a "Chindiasean" alliance, the resulting alliance will be a formidable force in future international intellectual property negotiations.

   Part III concludes with a discussion of ten key items that will find their way to Chindiasean's common policy agenda if such an alliance is ultimately established. Because of the alliance's potential role in shaping global intellectual property norms, Chindiasean is as much a "normative community" as it is a political alliance. (20) The first five items in the agenda concern traditional issues advanced by less developed countries. The remaining items represent new issues on which the international community has yet to achieve a consensus or formulate a position. Taking a first look at this common policy agenda in the intellectual property literature, this Part seeks to provide insights into issues that will emerge in future international intellectual property negotiations.

2. THE ASIAN VALUES DEBATE

   1. Human Rights

      The Asian values debate, which began in the human rights area, has been quite controversial. Although it is hard to pinpoint which values are included in these so-called Asian values, commentators have generally defined such values to include "authoritarianism, cooperation, harmony, and order." (21) By embracing cultural relativism, critics argue, the Asian values debate "undermine[s] ... the universality of the human rights regime as an empirical matter and present[s] a challenge to the normative claim that human rights should be interpreted and implemented in a similar manner everywhere." (22) The debate has also raised challenging questions about whether Asian countries, including those that have hitherto had a disappointing human rights record, could use Asian values as a "cultural excuse" for transgressions in the area. (23)

      Championed by Malaysian and Singaporean leaders, (24) the "Asian values" debate reached its climax when Asian countries adopted the Bangkok Declaration at the Asian preparatory conference before the World Conference on Human Rights in Vienna in 1993. (25) Although this state-coordinated declaration did not articulate the oft-discussed Asian values, it states explicitly that, "while human rights are universal in nature, they must be considered in...