Intellectual property and Asian values.

AuthorYu, Peter K.
PositionInternational Intellectual Property Scholars Series - III. Chindiasean through V. Conclusion, with footnotes, p.370-399

    Although Part I has shown that distinct values, approaches, or practices unlikely exist in the area of intellectual property protection and enforcement, questions remain regarding whether Asian countries will eventually develop unified positions on intellectual property law and policy. While the existence of Asian values, approaches, or practices may help develop such positions, such development does not depend on the existence of those values, approaches, or practices. The question, therefore, is not whether those values, approaches, or practices exist, but whether intellectual property values, approaches, or practices can be Asianized. (169)

    To date, countries in different parts of the world have taken coherent positions as a regional group. The textbook examples are the African Group and the European Union. Thus far, the wide-ranging regional diversity has made it difficult for Asian countries to foster common positions. For example, Japan was instrumental in establishing the TRIPS Agreement and remains a key player in the push for plurilateral or multilateral efforts in the international intellectual property arena. It also advanced the proposal for ACTA and now serves as the agreement's depositary. (170) Meanwhile, Singapore and South Korea have entered into free trade agreements with the United States. (171) Because these high-income countries will benefit from stronger intellectual property protection and enforcement, they, with the exception of the ASEAN-affiliated Singapore, are unlikely to team up with their poorer neighbors to develop pan-Asian positions on intellectual property law and policy.

    Nevertheless, the middle- and low-income Asian countries still have strong incentives to team up with each other to strengthen their own positions. As I mentioned earlier, the establishment of South-South alliances can be highly beneficial. These alliances, for example, "will allow less-developed countries to shape a pro-development agenda, articulate more coherent positions, or even enable these countries to establish a united negotiating front. The[y] ... will also help these countries establish a powerful voice in the international debates on public health, intellectual property, and international trade." (172)

    Once Japan and South Korea are taken out, the most powerful alliance will arise when China, India, and the ASEAN members team up to foster common positions for the Asian developing world. Such an alliance can be described either as the China-India-ASEAN triangle or, in shorter form, Chindiasean. (173) Chindiasean is unique, as it unites two leading middle-income developing countries with an Asia-based regional group. (Although Singapore is a developed economy that may not benefit from positions taken by this regional alliance, its founding membership and growing leadership in ASEAN and such noneconomic considerations as security are likely to ensure Singapore to remain part of the alliance. (174))

    From the standpoint of international intellectual property politics, the existence of both China and India, the two so-called BRICS countries, are important. Since the 1960s, Brazil and India have served as the twin leaders of the developing world in international intellectual property negotiations. (175) Although China until recently has not become active in the international community, it has since picked up tremendous momentum. The existence of China and India in Chindiasean, therefore, allows the alliance to be prominently featured in future international intellectual property negotiations. In fact, given the immense power of both China and India, which can only grow, any Asian alliance that excludes them is unlikely to succeed. (176)

    Moreover, ASEAN can benefit from access to the Chinese and Indian markets as well as the influx of foreign direct investment from these two countries. Although ASEAN was constituted as a group, its constituent countries compete more against than complement each other. As Assafa Endeshaw noted recently:

    Besides the economic structures of Indonesia, Malaysia, Philippines and Thailand are "more competitive than complementary ... ASEAN economies are more complementary to the industrial countries (as well as to the Asian [newly industrialized economies]) than to each other. And each ASEAN country wants to protect its domestic industries from competition from neighbors". The overall consequence is that ASEAN countries, except Singapore, are "not markets for each other's primary products. And they cannot supply each other's needs for technology and capital goods".... The disparity in levels of industrialization and the competitive standing of ASEAN economies inevitably translates into reluctance "to share markets" but an urge to protect "domestic industries from regional cooperation". The less developed of them tend to be more inward-looking and preoccupied with the basic development problems of unemployment, poverty and income inequality. They fear that premature competition for their industries will result in benefits biased in favour of the more developed members; the industrial competence of the latter will enable them to pre-empt the high value added industries and process if industrial location is left to market forces under free trade. (177) The existence of ASEAN in Chindiasean is equally important. As mentioned in Part I.C, China and India are likely to be top competitors in Asia in the future. In fact, tension may rise when the Indian economy begins to catch up with that of China. (178) As a result, ASEAN will play its much-needed role in serving as a mediator between the two countries, taking advantage of its wide experience in building consensus. (179) The inclusion of ASEAN will also build on its wide experience in intellectual property cooperation developed through the 1995 ASEAN Framework Agreement on Intellectual Property Cooperation. (180)

    Moreover, as China and India continue to grow, their positions may be closer to those of developed countries than their less developed counterparts. Some commentators have already wondered whether the emerging BRICS countries can continue to serve as leaders of the less developed world as they once did. (181) The addition of ASEAN in Chindiasean, therefore, is highly important, as the positions taken by ASEAN are likely to be more moderate than those of the two BRICS countries. Such moderation also resonates well with the large poor populations within China and India, thus allowing the Chinese and Indian governments to work closely with their ASEAN neighbors. (182)

    To be certain, questions remain regarding whether ASEAN countries can become equal partners with China and India. Most of the ASEAN members are economically weak. Those that are strong on a per capita basis, like Singapore, have a small economy. Indeed, one of the main concerns for any partnerships between a BRICS country and other less developed countries is the bargaining disparity between and among the parties. (183) If the arrangement is unfair, the ultimate alliance is unlikely to be more attractive than what the weaker countries already get under the existing multilateral system.

    Nevertheless, by combining its ten members and having an economy comparable to that of China and India, (184) ASEAN may be able to provide the much-needed political and economic clout to balance either China or India. The regional group also provides a multitude of votes that are important to both countries in a "one country, one vote" system under the United Nations--for example, in WIPO and UNESCO. (185)

    To China and India, the support of ASEAN members may become even more important, as the coalition with ASEAN members would strengthen their clout in negotiations with the United States and the European Union. (186) The combination of China, India, and ASEAN may also provide an effective countervailing force against the continued push for stronger global intellectual property standards by the trilateral partnership of the European Union, Japan, and the United States. (187) Even if it fails to resist this push, Chindiasean can strategically exploit the growing rifts among the three countries, (188) thus enlarging the policy space of the less developed world. As John Odell noted, a sophisticated negotiation strategy includes not only tactics for building coalitions, but also tactics "for splitting rival coalitions ... and for defending against efforts by outsiders to break one's own." (189)

    Within Asia, an alliance with the ASEAN members would further strengthen their positions vis-a-vis Japan, a still dominant economic power in the region. (190) For India, such an alliance would steer the discussion away from ASEAN+3 or East Asian Community. (191) For China, such an alliance would be at least as attractive as ASEAN+3, although the resulting alliance would go in a rather different direction. Teaming up with Japan and Korea is quite different from having an alliance with India and ASEAN.

    Not with standing these many benefits, there remain some unavoidable challenges. For example, there exist "IP-irrelevant factors" (192) that would make it difficult for these countries to cooperate with each other, such as xenophobia, nationalism, racism, mistrust, and resentment. (193) As I noted earlier, "[n]o matter how much more globalized and interdependent the world has become, some countries will always remain reluctant to cooperate with others, either because of historical conflicts, border disputes, economic rivalries, cultural differences, or spillover issues from other areas." (194) Indeed, the historical record of cooperation among less developed countries has been far from promising. (195)

    Moreover, ASEAN members continue to compete with China and India. As Lee Kuan Yew, Singapore's founding leader, observed in 2004, "[w]hat will pull [ASEAN] together is the need to be sufficiently competitive against two huge countries now in the World Trade Organisation and...

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