Russia & legal harmonization: an historical inquiry into IP reform as global convergence and resistance. (intellectual property)

• Published date: 22 September 2011
• Author: Mamlyuk, Boris N.
• Date: 22 September 2011

ABSTRACT

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with an examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence, and tension between state ideology, positive law, and "law in action." The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has emerged as one of the largest hurdles for Russia's prolonged accession to the World Trade Organization (WTO), these historical precedents may help explain Russia's apparent theoretical and political disconnect from the WTO. If Russian policymakers and many Western analysts agree that Russia has complied with all necessary structural adjustment reforms for WTO accession (including reforming its IP legislation), then deeper points of contention between Russia and the West must be identified. One point of departure, the Article posits, is Russia's lingering inability to convey adherence to general international law.

Thus, this Article re-conceptualizes the link between domestic and international legal orders by connecting the IP debate to broader debates over the nature of international law in the Soviet and post-Soviet space. Specifically, Part I examines how Soviet theorists attempted to reconcile IP regulation with Marxist ideology and socialist international law. Part II surveys the main IP law reform projects in post-Soviet Russia from 1992 to 2006, with particular emphasis on harmonization with global legal standards. The second part also provides a brief comparative analysis of Russia's latest IP law (effective 2008) and copyright protections in U.S. law as well as the 1971 Berne Convention. The Article concludes with an overview of doctrinal debates within Russia over harmonization, WTO accession, and international law. These debates shed light on the development of local resistance to further legal harmonization efforts, an issue of immediate relevance not just for policymakers working with Russia, but for broader law and development debates.

TABLE OF CONTENTS
                INTRODUCTION
                I. EARLY SOVIET IP PROTECTION: THEORY AND PRACTICE
                 A. Why Turn So Far to History
                 B. Lenin as IP Regulator-in-Chief
                 1. The Dilemma of Attracting Foreign Trade
                 (Pragmatism & International Law)
                 2. The Dilemma of Reconciling Communism, NEP & IP
                 C. Late Soviet IP Protection: An Overview
                 II. RUSSIAN IP LAW (1992-2006): TRANSITION
                 A. Change, Transplants, and Harmonization
                 B. Policy-Driven Harmonization (2000-Present)
                 1. WTO, TRIPS & the American Lobby
                 2. Russian Civil Code (Part IV) and Legal Licenses
                 3. Russian Legal Licenses v. U.S. "Fair Use" & Berne
                 Convention
                 C. Policy Trade-Offs, Resistance, Values, and Interests
                CONCLUSION
                

INTRODUCTION

Twenty years after the fall of the Berlin Wall, has Russia finally ended its transition and completed its restoration/reintegration into the international legal order? If so, has Russia developed a novel theory of international law or has it fully subscribed to the liberal international legal model? In his 2003 introduction to the second edition of G.I. Tunkin's Theory of International Law, William E. Butler, the eminent legal scholar of Soviet/Russian law, noted that "It]here is no 'substitute' or 'replacement' theory, as yet, to supersede the insights into international behaviour identified by Academician G.I. Tunkin." (1) Taking as granted that Russia has not fully adopted a liberal theory of state and law along Western lines, as most observers had hoped, it is worthwhile to reexamine the countless continuities and discontinuities between the Soviet and post-Soviet Russian experience with international law and institutions. Considering Russia's increasingly aggressive foreign policy posture and growing uncertainty over the viability of domestic reforms, (2) it is vitally important to take stock of these difficult--and largely unquantifiable--aspects of Russian reforms, from the enduring legacy of great power/socialist/bureaucratic thinking still prevalent among Russia's policy and academic elites, to more concrete issues like Russia's attempt to project respect for property rights to potential investors.

The present Article explores these historical breaks and continuities in the context of Russia's intellectual property reforms. (3) The analysis follows two parts. Part I offers a brief legal history of Soviet regulation of intellectual property ("IP") rights, starting in the early 1920s when the Soviet state was first engineering its socialist legal system in an apparent attempt to break away from the global "bourgeois" legal order. The first Part also provides an overview of the "mature" or classic Soviet IP regime. Part II presents a synopsis of IP law reform projects in post-Soviet Russia and Russia's attempts to harmonize its IP legislation with international norms throughout the 1990s. Part II also compares Russia's subsequent IP law reforms to U.S. copyright law, particularly in reference to legal licenses or "fair use," through a traditional functionalist comparative law methodology. (4) The Article concludes with a broader discussion on the effectiveness of Russia's attempts to harmonize its domestic IP system with international norms, including a study of resistance. This in turn allows an evaluation of alternative policy options or alternative normative approaches to law reform and law and development projects not just in Russia, but in other transitioning states.

I. EARLY SOVIET IP PROTECTION: THEORY AND PRACTICE

A. Why Turn So Far to History?

Most historical studies looking at IP reform in post-Soviet Russia start with the classic or late Soviet period (1960-1989) as a point of departure. (5) This is a useful starting place. However, the early Soviet period--the interwar years of 1919-1939--offers a remarkably sophisticated complementary analytical frame for considering the inner tensions and incongruities of Soviet legal theory and practice. How the Soviet Union came to recognize IP rights despite openly professing to oppose "private property" (and any laws that upheld the right of ownership to the means of production) may shed further light on the ambiguous intellectual structures of Soviet law, and by legacy, the post-Soviet legal system.

B. Lenin as IP Regulator-in-Chief?

A core tenet of Marxism and Leninism was the abolition of private property over the means of production and a critique of property forms generally. (6) As such, it may come as a surprise that the early Soviet state protected IP rights. Yet the early Soviet state was an ardent defender of individual and commercial right holders' claims both foreign and domestic, and not merely under the New Economic Policy which briefly liberalized the Soviet economy from 1922 to 1929. Lenin himself issued no less than a half dozen decrees on copyright and authors' rights protections between 1917 and 1922. What explains this apparent paradox? Did not the very notion of owning an idea or a work of art contradict the socialist conception of mass production and commonality of title? The answer to this question goes to the heart of the early Soviet theory of state and law and invokes fundamental theoretical debates that rocked the Soviet legal establishment throughout the interwar period. A quick survey of these debates is useful to contextualize the discussion that follows.

One reason for the eruption of fierce debates regarding the nature and function of law following the Bolshevik Revolution was that Marx did not expressly formulate the contours of post-revolutionary law and the state. (7) Had Marx theorized law as he had intended, it is likely that the Bolsheviks' piety to his teachings would have reduced the ensuing legal drama to a well-managed bureaucratic transition. (8) Absent that, it was left to the Bolsheviks to navigate the problems of managing a failed state through a series of foreign and domestic challenges while attempting to create consistent theoretical justification for their actions.

The most influential application of Marxist theory to the problem of political reorganization following the proletarian revolution was by Lenin himself in his State and Revolution. (9) Here, Lenin restated the main theses of Marx and Engels on the state, including the theory of class rule, formulated the theory of a Marxist state ruled by the proletarian class, and defended his conception against "opportunists, including the German Social-Democrats and English Fabians from the Second International. Lenin outlined the class nature of governments, the origins and role of the state, and bourgeois' use of class antagonism in maintaining the state. (10) He further critiqued what he described as a petit-bourgeois illusion of gradual transformation of capitalism into socialism without revolution.

According to Lenin, following a socialist revolution, the dictatorship of the proletariat would develop into a strong, centralized democratic base of Soviets (or workers' councils). The central communist party would play a guiding role in the construction of this socialist state by ensuring discipline, organization, and redistribution of material resources. Most importantly, Lenin developed and theorized Marx/Engel's writings on the dual phases of communism, the immediate socialist state following a socialist revolution, and a higher phase of communism which would finally see the withering away of the state. Contrary to Bukharin, (11) Lenin claimed that the transition to communism could only come after strengthening the state administrative organs and consolidating power in the hands of the Soviets and the party. Furthermore, this consolidation of power would coincide with the development of other proletarian movements across the world. Thus, Lenin theorized the importance and, indeed, inevitability of the...