Harmonization: A Future Trend or a Satisfying Mirage - SSRN papers

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For it is a land of illusion, a place in the mind, a shimmering mirage of riches and ..... equivalent of globalization -- IPR harmonization-- is a positive future trend in.
“GLOBALIZATION”: A FUTURE TREND OR A SATISFYING MIRAGE? By Doris Estelle Long1 49 J.Copyright Society 313 (2001)

For it is a land of illusion, a place in the mind, a shimmering mirage of riches and mystery and death. Richard E. Lingenfelter2 Introduction “Globalization”3 has become a catch phrase of the first decade of the 21st Century. Whether praised as the basis for future economic growth,4 or condemned as the reason 1

Professor of Law, The John Marshall Law School. The author would like to thank Dean Robert Gilbert Johnston and Associate Dean John Corkery for the research grant that supported the development of this Article. She would also like to thank Elizabeth Diaz and Juergen Mueller for their invaluable research assistance. The genesis of this Article was a speech presented at the Interdisciplinary Conference on the Impact of Technological Change on the Creation, Dissemination and Protection of Intellectual Property, held at The Ohio State University Law School on March 8, 2001. I would like to thank all of the participants whose comments were invaluable in helping me to clarify my thoughts and (hopefully) strengthen this Article. In particular I would like to thank Sheldon Halpern for the invitation to participate in the Symposium and Bernard Sorkin, Jon Baumgarten and Bruce Couchman for their detailed comments regarding portions of an earlier draft. 2 Richard E. Lingenfelter, DEATH VALLEY AND THE AMARGOSA (University of California 1986)(quoted in James B. Simpson, Simpson’s Contemporary Quotations, www.bartleby.com/63/6/3506.html). 3 There are numerous definitions for “globalization,” depending on the perspective of the viewer and the subject matter to be addressed. See, e.g., James Mittleman, THE GLOBALIZATION SYNDROME: TRANSFORMATION AND RESISTANCE 5-7 (Princeton University Press 2000)(containing diverse definitions of globalization from primarily economic and world systems scholars); Thomas Freidman, LEXUS AND THE OLIVE TREE 7 (1999) (defining globalization as “involving the inexorable integration of markets, nation …faster than ever before”); David Held et al, GLOBAL TRANSFORMATIONS: POLITICS, ECONOMICS AND CULTURE 2 (Blackwell Publishers Ltd. 2000)(defining globalization as “the widening, deepening and speeding up of worldwide interconnectedness…”) Malcolm Waters, GLOBALIZATION 3 (1995)(defining globalization as “a social process in which the constraints of geography on social and cultural arrangements recede and in which people become increasingly aware that they are receding.”); Paul Hirst 1(describing the globalization era as one “in which the greater part of social life is determined by global processes, in which national cultures, national economies and national borders are dissolving”). Despite the varying definitions, they of them share a common focus on increased transborder activities and integratory activities at the economic and/or political and/or social level. Regardless of the precise phrases used, these definitions generally focus on two aspects of present day globalization that are critical to the subject matter of this article. The first is the international, integratory nature of globalization --- the force that reduces national barriers to production, trade, capital, etc. and increases international interdependences in whatever arena is being examined. Thus, at one level globalization is “the process of reducing barriers between countries and encouraging closer economic, political and social interaction.” William Tabb, Progressive Globalism: Challenging the Audacity of Capital, Monthly Review 50, no. 9 (February 1999)(quoted in Mittelman, supra, at 5). The second aspect of, at least present-day, globalization is the rapid pace at which such interconnectedness occurs, generally as a result of technological advances. See, e.g., James Mittelman, supra at 6 (containing various definitions of globalization which focus on the

Electronic copy available at: http://ssrn.com/abstract=2223295

rapidity of the globalization process and the role of technology); David Held, supra at 2 – 31 (exploring the various definitions and concepts of globalization in the 20 th Century which similarly focus on integration and technology). I am using the term “globalization” in its broadest sense to refer to an integratory process in which economic inputs, including, inter alia, capital, labor, production and distribution, are interrelated across borders to create global opportunities for commerce and industry. The integratory process of globalization cuts across borders to achieve a degree of interdependence and/or inter-relatedness that increases transnational flows of goods, services, information … and problems. See generally, Samuel Huntington, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF THE WORLD ORDER (Simon and Shuster 1996)(cultural studies); James Mittelman, supra (economics); Benjamin Barber, JIHAD V. MCWORLD: HOW GLOBALISM AND TRIBALISM ARE RESHAPING THE WORLD (1996)(cultural studies); Thomas Freidman, supra (economics); Robert Kaplan, THE COMING ANARCHY: SHARING THE DREAMS OF THE POST COLD WAR (2000)(cultural studies); Paul Hirst and Grahame Thompson, GLOBALIZATION IN QUESTION (2d ed. 1999)(economics); David Held, supra (primarily economics); William Greider, ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM (1997)(economics); Doris Estelle Long, "Democratizing” Globalization: Practicing the Policies of Cultural Inclusion, --Cardozo Intern’l and Comparative L.J. –(2001)(exploring various definitions and trends of economic globalization). For purposes of analyzing the trends and processes of globalization, I have focused primarily upon the works and theories of global economists, such as David Held, Thomas Friedman and James Mittelman, and of global culturalists or geopoliticians such as Samuel Huntington, Robert Kaplan and Benjamin Barber. In this Article, I have generally not differentiated between trends identified by either “school” of thought. To the contrary, the conclusions that each has reached regarding such critical issues as national sovereignty, regionalism and the impact of “indigenization,” are roughly equivalent, even if the reasons for such conclusions, and the ultimate impact of these issues on future events differs. Although I have relied on the cultural analyses of Huntington and Kaplan (among others) in my development of a predictive paradigm for analyzing harmonization trends, I have not adopted or relied on the global chaos theories of these scholars. Despite recent terrorist attacks in New York City and Washington, D.C. that appear to give greater credence to the existence of Freidman’s “Super Empowered Angry Man” who “are not trying to change the world … they just want to destroy as much as they can.” Thomas Freidman, supra, at 326, I still question the inevitability of such chaos. Accord Yahya Sadowski, THE MYTH OF GLOBAL CHAOS (Brookings Institution Press 2000)(challenging the assumptions that underlie Huntington’s theory of global chaos). These theories are, however, helpful in underscoring the potential problems created if the purveyors of globalization fail to consider the human impact of their actions and serve as a warning if similar problems in IPR harmonization processes are not addressed. For purposes of this Article I have roughly divided globalization into economic and cultural/geopolitical theories. Others have divided globalization theorists into other categories based upon the scholar’s view of the ultimate impact of globalization on the subject matter at issue. David Held and his coauthors in an outstanding general treatise regarding globalization, GLOBAL TRANSFORMATIONS: POLITICS, ECONOMICS AND CULTURE, have divided globalization theorists into three “schools of thought”: hyperglobalists, skeptics, and transformationists. David Held, supra at 2 -10. Hyperglobalists are those who treat globalization as a primarily economic development and focus on the “denationalization” caused by such developments. Id. at 3-4. Skeptics, by contrast, consider current globalization to be merely a continuation of earlier internationalization of trade between predominantly national economies. In fact, skeptics like Paul Hirst and Grahame Thompson believe that, as opposed to globalization, current economic activity is in fact undergoing regionalization and that the period of greatest true “globalization” ended with the beginning of World War I and the end of the Gold Standard. Id. at 5 – 7. See also Paul Hirst, supra (challenging the assumptions of greater openness in today’s global economy, including assumptions of greater internationalization of the global marketplace and greater access to capital for developing countries as a result of massive shifts of foreign direct investment).

2 Electronic copy available at: http://ssrn.com/abstract=2223295

for lower environmental protection standards internationally,5 it has become almost an unchallengeable mantra that globalization is an inexorable force whose operational imperatives must be acceded to if a country wants to maintain any hope of developing its industrial and commercial base.6 The signs of globalization are everywhere. From the increasing role of international organizations in the “daily affairs” of nation-states7 to the growing number of bilateral treaties, accords, protocols and understandings that seek to establish a common standard of protection for everything from human rights,8 to environmental standards,9 to intellectual property protection,10 “globalization” seems a foregone conclusion. The process of harmonization11 of international intellectual property recognition and protection standards appears to be equally inexorable, equally unforgiving, and Trasnsformationists share with hyperglobalists the view that present day globalization to is historically unprecedented, but focus on the impact of such globalization in establishing a new world order, where nation states and borders have become irrelevant. Globalization is seen as a “re-engineering the power, functions and authorities of national governments.” Id. at 8. Much of the analysis which was used in this Article falls within the schools of thought of hyperglobalism and tranformationism, although the conclusions of my analysis, particularly with regard to harmonization fall more closely within the skeptics’ school of thought. 4 See, e.g., Thomas Friedman, supra note 2 at 7 (praising globalization as “the overarching international system shaping the domestic politics and foreign relations of virtually every country” and a “dynamic ongoing process”). 5 See, e.g., James Mittelman, supra note 2 at 179 – 202 (exploring the rise, goals and effects of “environmental resistance politics”). See also David Held, , supra note 2 at 376 – 412 (exploring the causes, trends and effects of globalization on the environment). 6 Perhaps the most famous advocate of this inevitability view of globalization is Thomas Friedman who described globalization as the “North Star” that is shaping the world. He stated: “I didn’t start globalization, I can’t stop if – except at a huge cost to human development – and I’m not going to waste time trying.” Thomas Friedman, supra note 2 at xviii. The “unchallengeable” nature of this mantra, however, may be changing in view of anti-globalization protests in Seattle, Barcelona and Genoa (among others). Whether the violence of Genoa in the summer of 2001 has affected globalization or simply affected the manner in which globalization meetings are held remains to be seen. 7 See text infra at III(discussing the erosion of sovereign power of nation states as a result of certain globalization trends). 8 See, e.g., International Covenant on Economic, Social and Cultural Rights, Article 15(1)(c), 993 U.N.T.S. 3 (December 16, 1996); International Convention on Civil and Political Rights, 999 U.N.T.S. 171, Article 19 (December 16, 1966); Universal Declaration of Human Rights, UN Doc. A/180, Article 27.2. (1948) (all of which contain a recognition of the international obligation to protect culture and/or works of cultural significance, such as art and literature). 9 See, e.g., Convention on Biodiversity, 31 I.L.M. 818 (1992)(establishing diverse protection standards for the biota); Kyoto Protocol to the United Nations Framework Convention on Climate Change (dealing with, inter alia, the international treatment of greenhouse gases). 10 See, e.g., Agreement on the Trade Related Aspects of Intellectual Property Rights, April 15, 1994, 33 I.L.M. 81 [hereinafter “TRIPS”]. For purposes of this article, "intellectual property" is defined to include the "traditional" (or “Western-created ”) forms of legal protection for works of creative or innovative endeavor. These forms, which have generally been protected under international treaty regimes, include copyright, patents, trademarks, trade secrets, and industrial designs and utility models. These categories of intellectual property have generally been protected internationally since at least the 1880's with the establishment of the Berne and Paris Conventions. 11 For purposes of this article I have used the term "harmonization" in the broader sense of an attempt to achieve agreement on multinational universal concepts for the recognition, protection and enforcement of

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equally one-sided in its demands. At least from the perspective of developing and least developed countries12 IPR harmonization efforts appear to be a continuation of a colonial past where legal and political institutions and culture were imposed by stronger “developed” nations.13 Previous use of developing countries as a source of raw materials and a market for developed countries’ goods,14 has given way to the use of these nations as a source for biota and traditional knowledge (the raw material of the Information Age)15 and a market for both consumer goods and I P protected technology.16 The mixed emotions that globalization has stirred have strong analogues in the area of intellectual property rights. In his seminal work THE GLOBALIZATION SYNDROME: intellectual property rights. Harmonization for this purpose includes both efforts to alter domestic laws to "approximate" agreed upon principles, see, e.g., First Council Directive to Approximate the Laws of Member States Relating to Trademarks, 89/104/EC (December 21, 1988), as well as efforts to establish universal standards (universalization). I should note that I am not convinced that universalization of all standards of IPR protection is either possible, as a practical matter, in a multicultural world, or even desirable. I do believe, however, that some level of universalization of fundamental concepts is desirable and even necessary if international trade in intellectual property-based products and services is to continue. 12 I am not completely satisfied with the use of the terms “developed,” “least developed” and “developing” country to categorize countries of varying levels of economic/industrial development. On their face the terms perpetrate a power hierarchy that seems rooted in imperialism and is offensive. Moreover, I fully recognize that the terms “developing and “least developed” convey a pejorative connotation, particularly in comparison with the “developed” world. Despite these problems I am not convinced that other alternatives, such as First and Third World or industrial and non-industrial are less problematic. Moreover, since these terms appear in TRIPS, they have a certain relevance to the present discussion that is lacking in other terms. See TRIPS Articles 65-67. “Developed” countries, such as the United States, Japan, Canada and most of the members of the European Union, are generally perceived as owning or controlling most of the world’s presently available technology that can be protected under intellectual property laws as traditionally applied. “Developing” countries, by contrast, are perceived as owning or controlling markedly less technology, and therefore benefiting less from strong IPR protection. It should be noted that for purposes of TRIPS compliance the categories are self-selecting. 13 See, e.g, Edward Said, CULTURE AND IMPERIALISM (Alfred A. Knopf 1993)(exploring the impact of colonial imperialism on modern relations). See also Marci Hamilton, The TRIPS Agreement: Imperialistic, Outdated, and Overprotective, 29 Vand. J. Transnat'l L. 613 (1996)(noting the imperialistic nature of developed countries imposition of western intellectual property systems on developing countries). 14 See, e.g, V.G. Kiernan, European Empires from Conquest to Collapse 1815 – 1960 (1981)(examining the course of European Imperialism, including economic and political effects and history); David Landes, THE UNBOUND PROMETHEUS: TECHNOLOGICAL CHANGE AND INDUSTRIAL DEVELOPMENT IN WESTERN EUROPE FROM 1750 TO THE PRESENT (Cambridge University Press 1969)(exploring the history of trade and technology during the 19th Century); Matthew Frye Jacobson, BARBARIAN VIRTUES: THE UNITED STATES ENCOUNTERS FOREIGN PEOPLES AT HOME AND ABROAD 1987-1917 (2000)(exploring the use of foreign countries as sources of raw materials and markets for consumer goods during the late 19th Century). 15 Some of the most heated debates between the developed and developing countries remain the use of traditional knowledge and the biota of the developing world. Debates in recent years over the patentability of neem seed as a fertilizer or tumeric for its healing purposes are only a few examples of what is seen by the developing world as an increasing use of its resources for the benefit of developed countries. These uses are strongly reminiscent of the role the developing world played during the colonial era the 19 th Century. . 16 See works cited in note 13 supra. The profitability of this market, however, is open to question given the large amount of piracy of intellectual property protected works in developing countries. See notes 103 107 infra and accompanying text.

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TRANSFORMATION AND RESISTANCE, James Mittelman described the syndrome of globalization as follows: As experienced from below, the dominant form of globalization means a historical transformation; in the economy, of livelihoods and modes of existence; in politics, a loss in the degree of control exercised locally-- for some, however, little to begin with -- such that the locus of power gradually shifts in varying proportions above and below the territorial state; and in culture, a devaluation of a collectivity’s achievements or perceptions of them. This structure, in turn, may engender either accommodation or resistance. …. Although politics and market relations have always been intimately related, globalization is emerging as a political response to the expansion of market power …. [It] is a domain of knowledge.”17 As this article will demonstrate the concerns about the processes of globalization – on both a macro and institutional level – ,so aptly expressed by Mittelman, are equally applicable to the development of harmonized intellectual property protection standards. Whether these trends are viewed from the standpoint of globalized trade,18 geopolitical relations,19 or even capital financial markets,20 their demonstrated similarities, I believe, serve as useful guideposts in analyzing past and future effectiveness of IPR harmonization efforts. The operational premise of this Article is that a comparison of economic globalization trends and philosophies may provide useful insights into the intellectual property harmonization process. Globalization may serve as a both a descriptive paradigm for IPR harmonization and a predictive tool for future problems and solutions. Given the trade related nature of intellectual property harmonization since TRIPS, at least on an international level,21 economic globalization processes appear to be the most closely related to IPR protection. Thus, this Article will begin in Part I with a brief historical analysis of economic globalization theory and trends, and will establish that economic harmonization is the closest analogue to international IPR harmonization trends because of the trade utilitarian nature of intellectual property after TRIPS. In Part II I examine the trends and issues apparent in present-day economic globalization, including the role of multinational corporations, and the impact of regionalism on the sovereign nature of nation states. Part III explores the backlash that arises from the perception of the homogenizing forces of global consumer culture that accompanies globalization and the alienation that develops in the face of the rapid urbanization demanded by the global economy. 17

James Mittelman, supra note 2 at 6. See, e.g., Thomas Friedman, supra note 2 (examining globalization primarily through the lens of economic globalization). 19 See, e.g., Samuel Huntington, supra note 2 (examining globalization primarily through the lens of geopolitical global relationships). 20 See, e.g., William Geider, supra note 2 (examining globalization primarily through the lens of l capital financial flows). 21 See notes 36 – 46 infra and accompanying text (discussing the impact of TRIPS in establishing the trade-related (utilitarian) nature of intellectual property rights). 18

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Since the goal of this analysis is to determine whether the intellectual property equivalent of globalization -- IPR harmonization-- is a positive future trend in international law or a harmful mirage on which too much time, money and effort is wasted, Parts IV and V relate the trends and problems of globalization to their IPR corollaries. I examine the apparent reinvigoration of IPR harmonization efforts after the initiation of the Uruguay Round and identify subsequent trends, including regionalism, the increasing empowerment of supranational agencies and the erosion of domestic control over local policy that results from these trends. I also examine the cultural backlash that has developed, represented by inter alia current debates over the role of intellectual property protection for traditional knowledge and other works of indigenous creativity and innovation and the cultural divide on the Internet. In Part VI I contend that a close examination of present harmonization efforts in areas such as IPR enforcement and moral rights demonstrates that much IPR harmonization is a mirage, which fails to establish effective standards. I conclude by suggesting that we must “democratize” the IPR harmonization process to promote cultural inclusiveness so that the standards achieved represent an actual international accord. Without such efforts, harmonization will remain a phantom ideal.

I.

Globalization in the Twenty-First Century

Despite current media hype, globalization is not a new development. To the contrary, economic globalization has existed in some form since the development of trans-regional commerce since Mesopotamia, and has arguably existed in its present form at least since the Industrial Revolution.22 Similarly the globalization of world politics, including development of international organizations to resolve transborder disputes and the growth of seemingly borderless multinational corporations, two of the more notable aspects of present day globalization, date from at least the latter stages of the 19th Century.23 Although interregional commerce dates back to the days of Antiquity, globalization in its present form encompasses more than transborder trading activity. To the contrary, the interconnectedness of today’s global economy is epitomized by a multiregional trading system in which acts in one country have a direct (and increasingly rapid) impact on the other members of the trading network. Such an integrated trading system features not only extensive intercontinental trading flows, but, even more significantly, also features well-established trading networks specifically designed to maintain such trade. This interconnectedness, however, is not a completely new development in the arena of international relations. To the contrary, the period from approximately 1870 to the beginning of the First World War, often referred to as the 22

See, e.g., David Held, supra note 2 at 152. See also Rosemay Bray McNatt, “Read All About It: The Global Economy” (describing slavery in the Americas as one of the results of earlier globalization efforts). 23 See, e.g., David Held, supra note 2 at 49 to 57 (examining the historical development of international actors in international trade and global affairs).

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“Gold Standard” era,24 was noteworthy for the level of international trade, which in certain respects was even more integrated than today.25 Similar to globalization in today’s era, expansion of international global trading networks was supported and fueled by technological advances. In the instance of the Gold Standard era, industrialization and the development of steam engines required both new sources of raw materials, and facilitated the development of more extensive trade routes.26 In addition, interdependent financial and securities markets developed during this period. Such interdependence was notable for both international investment in diverse foreign securities and the rapidity with which financial panics spread across borders.27 The similarity of many of the key attributes of this earlier phase of globalization to today’s version can best be described with reference to a description by John Maynard Keynes of the effects of globalization during the Gold Standard period: The inhabitant of London could order by telephone, sipping his morning tea in bed, the various products of the whole earth ... He could at the same moment and by the same means adventure his wealth in the natural resources and new enterprises of any quarter of the world, and share, without exertion or even trouble, in their prospective fruits and advantages…28 Despite the apparent similarities in the interconnectedness of markets, capital flows, and the availability of international goods to consumers, present day globalization is markedly different in the scope of countries engaged in such international trade flows and in the rapidity with which social and economic events in one country have an impact on other countries. The growth of the Internet and satellite communications and other technological advances in the communications and transportation arts, including digital distribution of copyrighted works, has increased both the impact of local events as well as the pressure to conform to the demands of globalization. In his definition of globalization in the popular work The Lexus and the Olive Tree, Thomas Friedman underscores the rapidity of present internationalization trends, defining globalization as: 24

This term refers to use of gold as the standard for the exchange rate for most of the major currencies. Established in 1878, the Gold Standard had the practical effect of facilitating the development an international securities market and facilitating international trade by establishing a readily convertible international “currency” for such trade. See generally David Held, supra note 2 at 195 -201. 25 According to Michael Bordo, before 1914 foreign assets counted for 20 percent of the collective gross domestic product of the world. See Alexander Stille, “Globalization Now, A Sequel of Sorts,” New York Times (August 13, 2001)(from www.nytimes.com, August 13, 2001). Such integration is yet to be achieved in the post-War global marketplace. See Paul Hirst, supra note 2 (noting the neither trade figures nor capital flows have reached 1914 highs). These figures, however, may not be directly comparable given current disputes over the basis on which Gold Standard export and import rates have been calculated. Disputes also exist over the comparability of capital flow figures given the impact of the Gold Standard system on fluctuations in interest rates on foreign investments. Id. at 28-29, 62-65. 26 See generally David Held, supra note 2 at 155 – 157. 27 Paul Hirst, supra note 2 at 37. 28 John Maynard Keynes, quoted in Alexander Stille, “Globalization Now, A Sequel of Sorts,” New York Times (August 13, 2001)(from www.nytimes.com, August 13, 2001).

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“[t]he inexorable integration of markets, nation-states and technologies to a degree never witnessed before-- in a way that is enabling individuals, corporations, and nation-states to reach around the world farther, faster, deeper and cheaper than ever before and in a way that is also producing a powerful backlash from those brutalized or left behind by this new system.” 29 This rapid integration has been accelerated even further by the pressures of the digital marketplace, represented by the Internet and the opportunities of e-commerce. On a macro scale, “globalization” is generally defined as a historical process effecting the economic, social and/or historical expansion of global linkages.30 It is “the widening, deepening and speeding up of worldwide interconnectedness in all aspects of contemporary social life, from the cultural to the criminal, the financial to the spiritual.”31 While globalization as a process can be studied from a variety of perspectives -- world system,32 global culture,33 global society34 and global capitalism35 --for purposes of examining the “trend” through an IPR perspective, economic and trade based definitions appear the most relevant in light of the close relationship between intellectual property and trade in the 21st Century.36 This focus on trade-based issues seems appropriate given the accession by over 135 nations to TRIPS, and its concomitant recognition that intellectual property serves as an item of trade. Intellectual property protected works have a long historical relationship with economic (trade) issues. One of the earliest reported trademarks was found on pottery in Mesopotamia -- an undoubted article of commerce.37 The Berne Convention itself arose from the concerns of Victor Hugo and others over the lack of sufficient international

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Thomas Friedman, supra note 2 at 7-8 (emphasis added). Friedman further equates globalization with “the spread of free market capitalism to virtually every country in the world.” Id. at 8. According to Friedman, the “driving idea” behind globalization is “free-market capitalism,” its “defining perspective” is “integration,” and its “defining document” is “the Deal.” Id. The equation of globalization with the inexorable spread of market capitalism is one of the most hotly debated premises of Friedman’s book. Whether such equation is appropriate, or desirable, is beyond the scope of this paper. What is significant, for purposes of evaluating the reality of globalization through the IP lens, is the focus on rapid market integration and the leveling effect of such integration on culture and communities. 30 See, e.g, Friedman, supra note 2; International Monetary Fund, “Globalization: Threat or Opportunity, www.imf.com. 31 David Held, supra note 2 at 2. 32 See, e.g., Samuel Huntington, supra note 2 and Benjamin Barber, supra note 2. 33 See, e.g., Samuel Huntington, supra note 2 and Robert Kaplan, supra note 2. 34 See, e.g., James Mittelman, supra note 2. 35 See, e.g., William Greider, supra note 2. This division of subject matters was suggested by Leslie Sklair, in her article “Competing Conceptions of Globalization.” Leslie Sklair, Competing Conceptions of Globalization, Journal of World Systems Research 143 (1999). For other subject matter divisions that have been used to describe various “schools” of globalization analysis, see note 2 supra. 36 See discussion infra at notes 38 – 48 (discussing trade related nature of intellectual property rights). 37 Franck Schechter, THE HISTORICAL FOUNDATIONS OF THE LAW RELATING TO TRADE MARKS (1925).

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protection for their creative endeavors.38 More recently, efforts to establish an international anti-counterfeiting code as part of the Tokyo Round under GATT underscored the adverse impact lack of IP protection could have on items of trade, such as video games and software.39 This historical relationship between intellectual property protection and trade became radically different with the negotiation of the TRIPS Agreement of the TRIPS agreement in the late 1980’s and early 1990’s. Unlike previous multinational intellectual property treaties, which had been negotiated under the auspices of the World Intellectual Property Organization and other non-trade related agencies, TRIPS was negotiated wholly under the auspices of GATT – a trade organization. Its provisions were the result of bargain linkage diplomacy whereby intellectual property protection was expressly linked to trade concessions in non-intellectual property related areas such as agriculture and textile standards.40 The trade related nature of intellectual property rights under TRIPS was expressed textually in numerous provisions. The preamble stressed that the reason behind the treaty was member countries’ "desire to reduce distortions and impediments to international trade.”41 Article 40 recognized that licensing practices may restrain competition thereby "having an adverse effect on competition in the relevant market."42 Even Article 31, dealing with conditions under which compulsory licensing of patents is permitted, addresses the concerns of adequacy in the domestic market of the licensed product.43 Whatever other impact TRIPS may have on international protection of intellectual property rights, it undeniably established that such protection is a trade matter. Whether or not intellectual property laws may be justified under theories of natural law,44 labor,45 38

In 1878 the French Government organized an international literary congress in Paris, convened under the Presidency of Victor Hugo. These efforts eventually evolved into the convening in 1883 of a conference in Berne, whose efforts resulted in the establishment of the Berne Convention in 1886. One of the key issues addressed was the protection of works by foreign authors against a booming piracy business. See generally Sam Ricketson, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS, 18861986, 46 (1987)(discussing the history of the Berne Convention including the early concern of authors over lack of international protection for their works). 39 See Doris Estelle Long, Copyright and Uruguay Round Agreements: A New Era of Protection or an Illusory Promise?, 22 AIPLA Q.J. 531 (1994)(discussing the negotiating history of certain provisions of the TRIPS agreement); Terence Stewart (editor) 3 THE GATT URUGUAY ROUND: A NEGOTIATING HISTORY (1986-1992)(1993)(same). 40 See Frederick Abbott, Protecting First World Assets in the Third World: Intellectual Property Negotiations in the GATT Multilateral Framework, 22 Vand. J. Transnat’l L. 689 (1989) (describing the range of concessions obtained in return for IPR protection under TRIPS, including reductions in agricultural subsidies, concessions on tropical product imports and quotas on textile products). 41 TRIPS, Preamble. 42 TRIPS, Article 40(2). 43 TRIPS, Article 31. 44 See, e.g., A. Samuel Oddi, TRIPS- Natural Rights and a "Polite Form of Economic Imperialism", 29 Vand. J. Transnat'l L. 415 (1996); Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession, 51 Ohio State L. J. 517 (1990); Adam D. Moore, A Lockean Theory of Intellectual Property, 21 Hamline L. R. 65 (1997). See generally Anthony D'Amato and Doris Estelle Long, INTERNATIONAL INTELLECTUAL PROPERTY LAW (Kluwer 1997) 45 See generally, D'Amato and Long, id, at Chapter 6 and works cited therein.

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or personality,46 TRIPS establishes only one international philosophy for their protection --- utilitarianism, or more precisely trade utilitarianism. This trade-based view of protection strongly supports the usefulness of economic globalization as a prism for predicting future harmonization trends. Given the general role of intellectual property as an element of international trade, and its potential impact upon the protection of cultural industries,48 the most useful basis for an analysis of IPR harmonization processes would appear to be the trends of problems caused by economic globalization. 47

Economic globalization and harmonization both possess an integratory and leveling aspect.49 Harmonization seeks to create a single, easily applied, predictable, international standard for protection and enforcement of intellectual property rights.50 This goal seems directly related to the market integration goals at the heart of economic globalization. Harmonization also raises the same concerns over de-culturalization, imperialism and power raised by its economic twin. 51 Perhaps even more significantly, harmonization has so close a relationship to the forces of economic globalization, it may in fact be merely a branch or form of harmonization itself. Harmonization, more particularly the development of harmonized standards for the recognition, protection and enforcement of intellectual property rights, undoubtedly serves the forces of global market integration. The consumer culture of globalization cannot survive unless the icons of that culture can be protected and exploited.52 The icons of the global consumer culture consist primarily of trademark protectable symbols, such as Coca-Cola, McDonald’s, Barbie, and CNN, or copyright protectable works, such as music, films and computer software.53 Consequently, it may well be that harmonization itself is only a subset of globalization. If so, then a study of the trends and theories of globalization will necessarily result in a clearer understanding of the trends and theories of IP harmonization. We do not need to answer the chicken and the egg question of whether harmonization is the cause or result of globalization. Whether harmonized standards are required for economic globalization (in the form of encouraging foreign direct investment) or are the result of such globalization, does not change the fact that the two are clearly related. Consequently, in order to answer the question of whether 46

Id. TRIPS represented the first time that the substantive aspects of intellectual property protection beyond border measures was treated as an item of trade under GATT – a pure trade organization. 48 These “cultural industries” may be loosely defined as those of book, music, television and film – or generally the industries traditionally protected under copyright, but whose content is generally considered reflective of local culture. Efforts designed to protect cultural integrity in free trade agreements, such as Article 2005 of the Canadian Free Trade Agreement, are generally directed to the copyright industries. 49 See discussion infra at Part III. 50 See note 10 supra (defining “harmonization” for purposes of this Article). 51 See discussion infra at Part III. 52 I take no position whether such consumer culture is worthy or valuable. The point is that any “culture,” however defined, needs its symbols and works protected. 53 See, e.g., Benjamin Barber, supra note 2 at 28. 47

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globalization or more precisely global harmonization of standards in the IP arena is a viable future trend or merely a mirage (and a potentially dangerous one at that), we need to consider both “economic globalization” as a trend as well as the actual results of IP harmonization.

II.

Globalization: Future Trend or the Product of Media Hype?

Globalization at the systemic level, particularly in the arenas of trade and economics, is a clearly definable international trend. Whether this trend is powerful, or permanent, enough to qualify as a future trend with a potentially significant impact on the global marketplace, however, is a vastly different question. Contrary to being a foregone conclusion or the irresistible force that people such as Thomas Friedman and John Mittelman believe it to be, economic globalization faces serious challenges which may make its impact evanescent at best. The reevaluation of the Thai baht in 1997 and the subsequent financial crisis that roiled Asia and eventually had ripple effects through-out the world amply demonstrated the globalization of the world’s financial capital markets.54 While globalization has had perhaps its greatest effect on these markets at the international level, evidence of the forces of globalization have not been limited to the capital market. To the contrary, the integration of market forces is apparent in most commercial segments of the global economy. “[C]omputer programmers in India now deliver their services in real time to their employers in Europe and the USA, while the cultivation of poppies in Burma can be linked to drug abuse in Berlin or Belfast…”55 A shortage in melons in California leads to an increase in exports of melons from Mexico with a subsequent labor migration from Guatemala to take advantage of the new labor demand. The end of dot.com mania in the United States leads to a weakening in the global technology market. Cars are assembled in Mexico from parts that are manufactured in Korea from raw materials which are mined in India. This integration of capital, labor and product markets which is one of the hallmarks of globalization has in turn created another of the noticeable trends in economic globalization – the rise of multinational corporations (“MNC’s”) in the latter half of the Twentieth Century, the so-called “McWorld corporations” of Benjamin Barber.56 These “corporations without nationality” operate outside the bounds of traditional business models, without addressees or the concomitant domestic cultural or political affiliations such addresses represent. If Robert Kaplan is correct, these stateless monoliths, “which are anchored neither to nations nor communities,” will yield power

54

See, e.g., Morris Goldstein, THE ASIAN FINANCIAL CRISIS: CAUSES, CURES, AND SYSTEMIC IMPLICATIONS (Institute for International Economics (1998). See also Paul Hirst, supra note 2 at 135 – 162 (discussing the Asian financial crisis and other financial crises whose impact was felt world-wide). 55 David Held, supra note 2 at 2. 56 Id.

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over virtually every aspect of life from universities and city planning in the pursuit of their corporate expansionist goals.57 Like certain phases of present day economic globalization, multinational corporations also had their birth in the industrial revolution. The international integration of manufacturing functions dates from the earliest days of the Industrial Revolution.58 Nevertheless, the nature of such multinationals has changed markedly from those early days. In the early days of the Industrial Revolution many “MNC’s” were trading companies where most foreign investment was limited to “trading companies.” International production companies did not arise in significant numbers until the end of the 19th Century. Even during the 19th Century international production integration was generally limited to exploiting a particular country’s advantages for production to fill local market needs.59 Such narrow integration goals has little in common with the internationally vertically integrated multinationals of the 21st Century. Some scholars have challenged the amount of sovereign erosion that has occurred as a result of the growth of MNC’s. First, given the advent of the information technology revolution, many business organizations are no longer arranged along the lines of the traditional MNC with a parent company controlling wholly owned foreign subsidiaries. To the contrary, many MNC’s grant greater autonomy to respond to local market conditions to their foreign affiliates.60 Moreover, with the growth of small and medium local enterprises (SME’s), many MNC’s now contract local services with such SME’s, thus further eroding the central control exercised by the parent company. 61 In addition, some globalization “skeptics” like Paul Hirst and Grahame Thompson question the extent to which MCN’s actually act in a global manner. Instead, they insist that such corporations remain closely tied to the national economies and governments of their home countries, following the interests and demands of such national economies and utilizing international affiliates only to the extent necessary to enhance their competitive position. 62 MNC’s are neither the multi-tentacled monolith’s of Kaplan’s Coming Anarchy, nor the nationalistic enterprises of Hirst’s global production networks. The reality lies somewhere in between. While MNC’s are not necessarily multi-tentacled in all instances, there is no question that the international activities of MNC’s during the 1990’s become more diverse. Over the past decade there has been a structural shift towards greater global competition, including greater international integration of production and manufacturing facilities. The maquiladoras that sprang up in the 1980’s in response to the North American Free Trade Agreement are only one small example of this trend toward the internationalization of production and distribution networks. Similarly, competitive needs of pharmaceutical and technology companies drive much of current 57

Robert Kaplan, The Coming Anarchy: Shattering the Dreams of the Post Cold War 83 – 89 (2000). See, e.g., Paul Hirst, supra note 2 at 20. 59 For a general discussion of the growth of MNC’s and their significance in the development of a global trading system, see David Held, supra note 2 at 239 – 247. 60 See David Held, supra note 2 at 255 - 274. 61 Id. 62 See Paul Hirst, supra note 2 at 88 to 96 (discussing diverse institutional structures of current MNC’s). 58

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university-level research in the sciences in developed countries like the United States.63 Current debates over access to stem cell lines and biogenetic research focus on the availability of adequate resource materials in light of the near monopoly of corporate ownership over such resources.64 The “national” nature of the corporations has not eliminated their interest in pursuing corporate profits, potentially at variance with public welfare initiatives.65 Even if the level of top-down control from the parent of an MNC to its foreign affiliates differs from company to company, transnational production as a whole has become both more prevalent and more institutionalized.66 While such multinational productions currently account for a minority of total global production, they have in turn contributed to another “trend” in current economic globalization – the erosion of the sovereignty of nation states. It is beyond the scope of this Article to discuss in detail regarding the various theories regarding the nation state and its diminishing rights as a sovereign entity. Whether the erosion of sovereign power is the result of a transfer to sub-state entities on the basis of regional, ethnic or other divisions,67 or as a result of a reconstitution of state entities into new “transgovernmental” orders,68 nation states no longer have the same power they exercised in the pre-globalized world. In addition to the erosion cuased by the growing transnational power of MNC’s, one of the most potent sources for the erosion of a nation state’s sovereign power is the systemic trend toward the establishment, and more importantly, empowerment of international organizations to resolve a variety of transborder and multi-border issues. These organizations, like many MNC’s, similarly operate without a domestic address or an organizational culture beyond that which they create for themselves.

63

See, e.g., Ronald Kotulak and Peter Gorney, Stem Cell Limits Bring New Fears, www.chicagotribune.com/news (September 7, 2001)(describing the increasing desire of universities to engage in private funded research); Eyal Press and Jennifer Washburn, The Kept University, THE ATLANTIC ONLINE, www.theatlantic.com/issues/2000/03/press.htm (March 2000)(discussing the increasing use of corporate sponsors to find academic research and the impact of such funding in developing an academicindustrial complex). 64 See, e.g., Id. (embryonic stem cells in the US are in private ownership); Tom Friend, Half of Stem Cell Money Could Go to Pay Royalties, www.usatoday.com/news/heathscience (August 13, 2001)(private companies provide embryonic stem cells to private funded researchers own patent applications and charge for access). Accord University Widens Suit Over Stem Cells, www.cnn.com/2001/HEALTH/09/26/stemcell.lawsuit.ap (discussing law suit between parties over access and control to stem cells and related technology). 65 Arguably free access of stem cell research would assure greater research potential, thereby meeting public welfare needs of obtaining medical cures based on scientific advances derived from such research. Yet simply donating such stem cell lines, without requiring some compensation whether pre or post research would be at direct variance with the corporate responsibility to shareholders to avoid any wasting of corporate assets. 66 See David Held, supra note 2 at 274. 67 See, e.g., Robert Kaplan, supra note 2 (suggesting that regional and ethnic groups are taking the place of state actors). 68 See, e.g., Anne Marie Slaughter, The Real New World Order, 76 Foreign Affairs 184 (1997).

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Multinational organizations have always existed to deal with transnational problems. In the arena of intellectual property protection in the modern world such multinational organizations have been in existence since at least as early as the 1880’s with the establishment of the Paris and Berne Unions in the 1880’s. Yet the trend of establishing multinational organizations to resolve transborder issues, and ceding to these organizations sovereign powers, appears to be increasing. More importantly, the power ceded to these organizations has grown to include matters typically controlled by sovereign nations, including domestic IPR enforcement priorities. In the Twentieth Century perhaps one of the most remarkable examples of such sovereign concessions may be the development of the European Union (“EU”).69 From its early development as a free trade union,70 the EU as a separate entity has gradually exercised an increasing influence over the sovereign affairs of its member nations. The European Union now sits at the table of multinational treaty negotiations. It files complaints before the WTO.71 It issues directives and regulations which have the impact of domestic legislation, thus, removing, individual country choice on an issue basis from its sovereign members.72 The extent of the presence of the European Union in the domestic affairs of the citizens of its member states has been so great that virtually no aspect of remains untouched. From the choice of currency to be used,73 to the food products that may be marketed,74 to the scope of protection for famous marks,75 the 69

The Union itself has gone through a variety of changes in name as its powers and focus have expanded. From the “Common Market” to the” European Economic Community” to the “European Community” to the present day “European Union.” For the sake of convenience, I have chosen to use the name of its most recent incarnation. This incarnation not only demonstrates the all encompassing role of the Union on the lives of the citizens of its member states, it is probably one of the most potent examples of a powerful stateless multinational organization in existence today. Moreover, the terminology “European Union” is more in keeping with the focus of this paper which is the impact of globalization on the modern world. Nothing could be more demonstrative of the pros and cons of globalization than a trade union which has become a quasi United States of Europe. For a good general information source on the history and role of the European Union in its various incarnations, see Robert MacLean (editor), LAW OF THE EUROPEAN UNION (Old Bailey Press 2000). 70 Id. See also Treaty Establishing the European Economic Community, 28 U.N.T.S. 11 (1958). 71 Among the complaints which the EU has filed was one against the United States, challenging The European Union recently challenged the Fairness in Music Licensing Act of 27 October 1998, Pub.L. 105298, 112 Stat. 2830, 105th Cong.,2nd Session (1998) of the United States, which extended the scope of uncompensated compulsory licenses for the public performance of music in certain shops and restaurants. The EU claimed that such uncompensated uses violated US obligations under TRIPS. The EU’s complaint was ultimately successful and the US has been ordered to modify its laws to eliminate the violation. See United States – Section 110(5) of the US Copyright Act, WT/DS160/12 (January 15, 2001). 72 Regulations in the EU create rights and responsibilities directly and uniformly applicable through-out the Union. They are incorporated automatically into the law of each Member state. By contrast, Directives require the member states to create legislation in accordance with such directives within a specified time period. See generally, Robert MacLean, supra note 69. 73 As of 2002 currency in most member nations of the European Union will be the “euro,” a uniform currency that will take the place of national currencies like the French franc and the Italian lira. 74 The EU has issued numerous regulations governing the production, sale and labeling of diverse food and agricultural products. See, e.g., Council Regulation on the Protection of Geographic Indications and Designations of Origin for Agricultural Products and Foodstuffs, 2081/92 (July 14, 1992). 75 See, e.g., First Council Directive to Approximate the Laws of the Member States Relating to Trademarks, 89/1041/EEC (December 21, 1988).

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European Union, as an entity, has become much more than a “simple” trade union. It has become a supranational arbiter of the affairs of its citizens. In the arena of intellectual property the European Union has developed directives on a wide variety of matters, including harmonization directives on trademarks,76 software,77 and biotechnology inventions.78 It has even established its own regional trademark (the Community Trademark).79 The European Union has served as a model for the development of other regional trade and customs unions, including Mercosur,80 ASEAN,81 CARICOM,82 the GCC,83 the Andean Community84 and COMESA.85 While none of these has yet achieved the degree of integration into the daily affairs of its member states to rival that of the European Union, each represents a level of intergovernmental cooperation and a surrender of sovereignty at least in matters effecting transborder trade. More significantly, the trend toward regionalism demonstrated by these largely regional organizations appears to have increased during the last decade of the Twentieth Century and shows no sign of abating.86

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Id. Directive on the Legal Protection of Computer Programs, 91/250/EEC (May 4, 1991). 78 Directive on the Legal Protection of Biotechnological Inventions, 98/44/EC (July 6, 1998). 79 See, e.g., Council Regulation on the Community Trademark, DC 40/94 (December 20, 1993). 80 Mercosur was established on March 26, 1991, and had as its central objective was the establishment of a customs union between the member states of Argentina, Brazil, Paraguay and Uruguay. In 1995 the member countries signed a protocol for the common treatment of trademarks and geographic indications, thus, moving, like the European Union into intellectual property protection issues in order to promote the free circulation of goods within a free trade zone. 81 The Association of South Eastern Nations is not a regional trade organization, but a loose association of diverse Asian countries, including Cambodia, Laos, Singapore, Thailand and Vietnam, established in 1967 for the purposes of establishing “cooperation in securing the peace, stability and development of the region. ASEAN has expressly rejected any effort to create an Asian “European Union” or supranational agency. It has established dialogue partner relationships with various developed countries from around the globe, including Mexico, Canada, the United States. See generally www.asean.or.id. 82 The Caribbean Community was established in 1973. Its members include most of the nations of the Caribbean region, including Antigua and Barbuda, the Bahamas, Dominica, Belize, Granada, Barbados, Grenada, Guyana, Haiti, Jamaica, Surinam and Trinidad and Tobago. They have established a common market and are participating in some multilateral treaty negotiations as a single entity. 83 The Gulf Cooperation Council was created in 1981 for the purpose of promoting cooperation and integration among six Arab countries: The United Arab Emirates, Bahrain, Saudi Arabia, Oman, Qatar, and Kuwait. They have begun work on developing mutual IPR principles of protection. 84 The Andean Community was created in 1969 and subsequently adopted Decision 85 which established a common regime for the treatment of trademarks and patents. Its members include Bolivia, Columbia, Venezuela, Ecuador and Peru. 85 The Common Market for Eastern and Southern Africa is composed of 21 African countries, extending from Egypt to Angola, Kenya, Namibia, Zimbabwe and Swaziland. It was established to create an African free trade zone and customs union. They have not established mutual IPR standards to date. 86 I recognize that this trend toward regionalism may be seen as a first step toward developing harmonized I P protection standards. It may also, however, serve to impede the development of such standards by creating regional standards that are not readily translatable to multi-regional application. It is this latter danger which regionalism poses in the analogous arena of IPR harmonization. 77

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According to information contained in the 1999 Report of the Committee on Regional Trade Agreements to the General Council of the World Trade Organization,87 the trend toward regionalism has gained momentum. As of 1999, more than 118 regional trade agreements have been notified to the GATT/WTO.88 Since 1995 alone 90 agreements covering trade in goods and services have been so notified. While some of the agreements notified to WTO have a relatively inactive status at present, others, such as Mercosur, CARICOM and the Andean Community have established roles as “supraregional” entities. For example, the guiding rules for the protection of intellectual property in the Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela) until recently was Decision 344 of the Cartagena Agreement.89 Decision 344 provided minimum substantive standards of protection for patents, industrial designs, utility models, industrial secrets, trademarks, trade names and appellations of origin. Despite its wide-ranging coverage of intellectual property issues, Decision 344 was considered TRIPS-deficient by the United States government for its failure to provide, inter alia, pipeline protection for pharmaceutical patents.90 Yet when Ecuador entered into a bilateral agreement with the United States to provide such protection, the Junta del Acuerdo de Cartagena initiated an action against Ecuador for non-compliance with the Andean regime. These actions ultimately proved effective when the Andean Court of Justice declared that patents granted in accordance with a pipeline procedure were void.91 Thus, bilateral relations were directly affected by the decision of a supraregional entity. One of the most recent examples of the trend toward regionalism is the recently instituted negotiations for a Free Trade Agreement of the Americas (“FTAA”), an anticipated Western Hemispheric version of the earlier established North American Free Trade Agreement.92 The FTAA was officially launched in December, 1994 at the Summit of the Americas when leaders from the 34 countries of the Western Hemisphere 87

Report of the Committee on Regional Agreements to the General Council of the World Trade Organization, WT/REG/8 (1999). 88 Report of the Committee on Regional Agreements to the General Council of the World Trade Organization, WT/REG/8 (1999). 89 The Andean Community issued Decision 486 to replace Decision 344 with an effective date of December 2000. This Decision eliminates the exclusion from patentability for pharmaceutical products appearing on WHO’s list of essential drugs in Article 6 of Decision 344. See Decision 486, Article 15 (containing exclusions from patentability which does not contain the previous WHO exception described below note 90). 90 Article 6(e) of Decision 344 excludes from patentability “inventions relating to pharmaceutical products appearing in the List of Essential Drugs of the World Health Organization. The United States considered this provision to violate Article 70, which required member countries to provide pipeline protection for such patents. TRIPS, Article 70. 91 Carlos M. Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options 116 (2000 Zed Books Ltd.). 92 NAFTA was established on December 17, 1992 and established a free trade zone between Mexico, Canada and the United States. The Agreement establishing NAFTA also contained extensive provisions regarding the protection of intellectual property rights. See North American Free Trade Agreement §§ 1701 et seq.

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resolved to "begin immediately to construct the [FTAA], in which barriers to trade and investment will be progressively eliminated”93 Eight working groups were established at the Denver Ministerial in 1995 to address such diverse issues as agriculture, environment, investments, dispute settlement. In 1996 under the Cartagena Declaration, a working group on intellectual property rights was added.94 It is too soon to tell whether any final Agreement will contain dispute resolution provisions similar to those established under the Marrakech Agreement. It is also too soon to tell whether the FTAA will lead to the establishment of a Western Hemispheric equivalent of the WTO, or, more likely, the Berne Union.95 Nevertheless, the trend toward multinational action at an institutional level to resolve a variety of trade related issues seems clear. Reflective of some globalization scholars’ emphasis on the rapidity of globalization at the market level,96 the growth of electronic commerce on a world-wide basis serves as further evidence of the power of the forces of globalization. Referred to by Freidman as the “symbol” of globalization “because [the World Wide Web] unites everyone,”97 developing countries such as Malaysia, India and South Korea have invested heavily in expanding domestic use of Internet capabilities for economic purposes.98 With the recent hiccup in the development of dotcom’s in the United States, and its ripple effect in other technology industries, the rapidity of the development of a fully technologically integrated capitalist market may be slowed. Yet the methods for exploiting the global market opportunities presented by a global, digital market remain a topic of intense scrutiny at both the institutional and domestic level. Studies on the potentialities and problems of e-commerce have been conducted by such diverse international organizations as WIPO, the WTO and the World Bank.99 International 93

They offered the following rationale for the undertaking: "Eliminating impediments to market access for goods and services among our countries will foster our economic growth. A growing world economy will also enhance our domestic prosperity. Free trade and increased economic integration are key factors for raising standards of living, improving the working conditions of people in the Americas and better protecting the environment." Miami Summit of the Americas, Declaration of Principles, www.flaaalca.org/ministerials/miami_e.asp (December 1994). 94 Joint Declaration, Summit of the America, Second Trade Ministerial Trade Meeting, Cartagena, Columbia (March 21, 1996). 95 The current draft agreement provides for such dispute settlement mechanism. It is too soon to predict the nature such mechanism may ultimately take. 96 See note 2 supra 97 Thomas Friedman supra note 2 at 8 (discussing the rapidity of global integration as one of the key elements of present-day globalization). 98 India has devoted substantial resources to develop a burgeoning domestic computer and Internet industry while Malaysia has similarly devoted its resources to creating a high technology Super Corridor. Both of these efforts are helping to develop viable domestic technology-based industries to take advantage of the Internet and other digital technologies. See, e.g., Techindia, Why outsource to India?, www.techindia.com (2001); What’s the MSC, www.mdc.com.my (2001). 99 See, e.g., WIPO, PRIMER ON ELECTRONIC COMMERCE AND INTELLECTUAL PROPERTY ISSUES, WIPO/OLOA/EC/Primer (May 2000)(exploring diverse international intellectual property issues raised by electronic commerce); International Finance Corporation, THE NET EFFECT, www.ifc.org (1999)(exploring the impact of, inter alia, electronic commerce on developing countries)(IFC is a member of the World Bank); The Geneva Ministerial Declaration on Global Electronic Commerce, WT/MIN (98)/Dec.12 (May 28, 1998)(establishing a comprehensive work program “to examine all trade-related issues concerning global electronic commerce).

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conferences were held last year by WIPO in such diverse developing countries as Thailand and Senegal, attended primarily by government representatives from developing and least developed countries.100 The governments of India and Korea have placed the development of Internet capabilities at the forefront of their industrial modernization drives,101 while Malaysia has received wide-spread support for its effort to create a Super Corridor of “smart cities” in the Kuala Lumpur area.102 Even the violation of intellectual property rights seems to be a global phenomenon, particularly in the copyright industries of book publishing, sound recordings, film and computer software. Statistics for piracy in these industries demonstrate that the problem has no borders. According to the Business Software Alliance, over $3.2 billion was lost globally due to computer software piracy alone during 2000.103 While the verifiable accuracy of these statistics may subject to debate,104 it seems clear that pirates are among the entrepreneurs who are using the twin benefits of technology and trade to increase market share. In the present global marketplace, pirated music CD’s created in China may be transshipped through the Ukraine and ultimately sold in a flea market in Argentina. While pirates originally had the reputation of being the ultimate SME, like small companies who through market acumen and economies of scale become the present multinational corporations, piracy has become a multinational business, with its own globalizing forces. Reports of the role of organized crime elements in the production and distribution of pirated CD’s are increasing. Thus, for example, police in Hong Kong have tracked shipments from Macao in submersible boats of pirated CD’s that were operated by organizations also engaged in arms and drug smuggling. These gangs defended their distribution routes through threats of violence and assassination.105 Moreover, digital distribution has been adopted by pirate organizations even more quickly than traditional industries. Such distribution networks include the distribution of both “hard” goods for sale on electronic auction sites, as well as the distribution of digital downloads to end users and digital “masters” to pirate factories.106 Thus, even pirates

100

I participated in these conferences as a speaker and can attest to the widespread interest of the participants in ecommerce and knowledge based economies. 101 See, e.g., Techindia, Why outsource to India?, www.techindia.com (2001); Donald MacIntyre, South Korea Wires Up, TIME B10 -12 (January 22, 2001). 102 See, e.g., What’s the MSC, www.mdc.com.my (2001). 103 International Planning and Research Corporation, 1999 GLOBAL SOFTWARE PIRACY REPORT (1999). 104 Realistically, it is difficult to determine how many illegal copies of a product are sold internationally since pirates are not generally known for their recordkeeping abilities. Such piracy figures become even more difficult to ascertain when illegal distribution over the Internet is taken into consideration. Finally, the accuracy of these figures is further subject to debate since each pirated copy theoretically does not necessarily represent a lost sale where significant price differentials exist between pirated and legitimate copies. Even if the precise scope of the problem may not be subject to accurate measurement, no one seriously disputes the global problem posed by such piracy. 105 Speech by Mike Kelly, September 19, 2000 at the Symposium for Asia Pacific Countries on the Protection of Intellectual Property in a Knowledge Based Economy, co-sponsored by WIPO and the US Patent and Trademark Office in Chiang Rai, Thailand. 106 Id.

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have begun to take advantage of the business opportunities offered by digital, electronic commerce.107 III.

The Contrary Forces of Culture

While the evidence of globalization, at least at the economic and systemic level are self-evident, there are contrary developments that call into the question the “staying power” of this trend. On the systemic level, the development of regional trade unions and other institutions may be seen as steps on the road to the development of harmonized standards that should theoretically facilitate further globalization. However, there is another prism through which such regionalism could be observed. It is the prism of the growing disintegration of the effectiveness of global institutional solutions in the face of the potential cultural leveling effects of globalization and the backlash created by these homogenizing forces. The spread of Barber’s “McWorld,”108 Hannerz’s “Coca-colanization”109 Grossberg’s “Neo-Fordism,”110 Friedman’s “Lexus” 111 (or whatever mass produced consumer good is currently seen as the symbol for the evils of the spread of a global consumer culture) is either accompanied by or causes a homogenization of culture.112 This homogenization of culture leads to the ennoblement of consumer icons. Culture becomes a commodity and apparel, ideology.113 Defenders of globalization such as Friedman consider such homogenization the natural price to pay for the benefits of entry into the global marketplace. Contrasting the Lexus, which for Friedman represents “the drive for sustenance, improvement, prosperity and modernization”114 with the Olive Tree, which represents the “the feelings of self-esteem and belonging that are essential for human survival,”115 Friedman is willing to sacrifice most of the Olive Trees for the Lexus. He defends this choice on the basis that globalization with its spread of 107

Speech by Robert Krueger, September 11, 2000, at the Symposium of the Americas: Protecting Intellectual Property in the Global Digital Age, sponsored by the US Patent and Trademark Office, Washington, D.C. 108 Benjamin Barber, supra note 2. 109 The term “Coca-colonization” appears in Ulf Hannerz, Cultural Complexity: Studies in the Social Organization of Meaning 217 (1992). “Coca-colonization” generally refers to the global homogenization which arises from the replacement of local products with mass produced goods, which usually originate in the industrialized countries of the West. See David Howes, Introduction: Commodities and Cultural Borders, Cross-Cultural Consumption: Global Markets, Local Realities 3 (David Howes ed., 1996). 110 “Neo-Fordism,” L. GROSSBERG, WE GOTTA GET OUT OF THIS PLACE: POPULAR CONSERVATISM AND POST MODERN CULTURE (1992). Neo-fordism refers to new mass production technologies and is a reference to the production line techniques first perfected by Henry Ford. 111 Thomas Friedman, supra note 2. 112 The degree of such “homogenization” is subject to intense debate. As noted below, whether such homogenization in fact occurs is less significant than the fact that it is perceived to be occurring. Such perception give rise to concerns to protect local culture against its diminution in the face of this foreign onslaught, and give rise, inter alia, to the demand for cultural industries exceptions represented by Article 2005 of the Canadian Free Trade Agreement (providing exceptions from free trade requirements for designated “cultural industries”). 113 Benjamin Barber supra note 2 at 17. 114 Thomas Friedman, supra note 2 at 27. 115 Id. at 27

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technology and market access is an ultimately empowering force which offers its own form of humanization. Yet even Friedman acknowledges that the rush to globalization necessarily unleashes its own backlash: “If [the] participation [in the global economy] comes at the price of a country’s’ identity, if individuals feel their olive tree roots crushed, or washed out, by this global system, those olive tree roots will rebel. They will rise up and strangle the process.”116 Such backlash does not require that globalization result in a homogenization of culture. Instead, it is based on a perception that such unwanted homogenization is occurring. I seriously doubt that globalization has lead or ever could lead per se to a completely globalized consumer culture given the regional variations that may occur.117 Nevertheless, there is no question that it has contributed to the growth of the perception of such a culture, particularly among young people and the upper classes. MTV, CNN and McDonald’s are known through-out the world. Despite regional variations, at its heart this culture represents a foreign source of homogenization that makes local cultural identities unwanted and undervalued. Such perceptions fuel the rise of cross-border identification groups, the “indigenization” of Samuel Huntington.118 The rise of cross border identification groups, based on ethnicity or culture, may pose a far greater threat to the role of the nation-state as a “player” in the world order than any economic globalizing forces. Huntington warns in “The Clash of Civilizations”: “Alignments defined by ideology and superpower relations are giving way to alignments defined by culture and civilization. Political boundaries increasingly are redrawn to coincide with cultural ones: ethnic, religious and civilizational. Cultural commodities re replacing Cold War blocs, and the fault lines between civilizations are becoming the central lines of conflict in global politics.” 119 Huntington and other like minded scholars who focus on the geopolitical aspects of globalization120 see the rise of regionalism as evidence of the confluence of culture and economics. Those organizations which share a common culture, such as the European Union and Mercosur, according to Huntington, are destined ultimately to be more 116

Id. at 35. See, e.g., Thomas Friedman, supra note 2 at 236 (discussing the role of “glocalization” which he defines as “the ability of a culture, when it encounters other strong cultures, to absorb influences that naturally fit into and can enrich that culture…”); Celia Lury, CONSUMER CULTURE (Rutgers University Press 1996)(discussing the impact of material culture on diverse countries, including the use of famous brands as agents of “civilization”); David Hawes (editor) CROSS CULTURAL CONSUMPTION: GLOBAL MARKETS, LOCAL REALITIES (Routledge 1996)(containing diverse articles discussing the localization of consumer culture and its impact on local cultures). 118 Samuel Huntington, supra note 2 at 91. 119 Id at 124. 120 See also Robert Kaplan, supra note 2. 117

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successfully integrated on an economic level than those such as ASEAN who lack such cultural (or “civilizational”) similarities.121 While cultural similarities may improve the possibility for reducing regional conflicts, acknowledged regional dissimilarities may ultimately create insurmountable barriers to the homogenization processes that form a significant part of economic globalization. For many developing countries, globalization has taken the form of rapid urbanization of the work force. Such urbanization leads to massive migrations into urban centers, and a consequent loss of identity and social cohesiveness. Such dislocations lead to a sense of alienation, and a growing consciousness of a collective “us” in the face of the ever imposing “them” of globalization. This creates a need for “new sources of identity, new forms of stable community, and new sets of moral precepts to provide [people] with a sense of meaning and purpose.”122 The development of such collective identities gives rise to powerful forces aimed directly at the force that first unleashed them – economic globalization. Robert Kaplan sees these “identity wars” as even more insidious to the state of world peace, warning: “Economic modernization is not necessarily a panacea, since it fuels individual and group ambitions while weakening traditional loyalties to the state.”123 Where colonial borders fail to recognize cultural and ethnic realities, political (and potentially economic) power centers, mankind’s predilection for faction, augmented by environmental and cultural differences”124 becomes the governing paradigm of international relations. It is too soon to determine if such cultural identity groups will ultimately lend themselves to Barber’s “Jihad”125 or Robert Kaplan’s “Coming Anarchy.”126 They, nevertheless, remain a growing and increasingly powerful force to counter-balance the globalizing forces of homogenization. These cultural (or more properly “collective”) identification groups, and the search by the disaffected for a return to values based in their culture, form a backdrop to some of the most heated international debates today in the IP arena. That debate is over the treatment of so-called “traditional knowledge”127 under international intellectual property regimes.128

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Samuel Huntington, supra note 2 at 131 – 135. Id. at 97. 123 Robert Kaplan, supra note 2 at 27. 124 Id. at 113. 125 Benjamin Barber, supra note 2. 126 Robert Kaplan, supra note 2. 127 I have chosen to use the term “traditional knowledge” in its broader context as including all “traditionbased” works, innovations and cultural expressions. In accordance with the definition which has been adopted by WIPO in its Draft Report Draft Report on Traditional Knowledge, to qualify as “tradition based” the work or innovation must have been generally “transmitted from generation to generation”; must generally be “regarded as pertaining to a particular people or its territory,” must have generally been developed in a “non-systematic way” and be “constantly evolving in response to a changing environment.” Report at 5. This term includes “folklore” as well as other expressions of cultural heritage. 128 It should be noted that the debate over the scope of protection to be afforded such works is not limited to the question of their protection under intellectual property doctrines. To the contrary, the question of such 122

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IV.

Traditional Knowledge and the Culture Wars

The issue of the extent to which non-traditional forms129 of intellectual creation or innovation should be protected under intellectual property regimes has received increasing attention in the latter decades of the Twentieth Century.130 In 1976 the Tunis Model Law on Copyright was developed (with the assistance of WIPO and UNESCO) to provide a model copyright law that developing countries could use to protect their own “works of the mind” while conforming to international standards contained in the Berne Convention and the Universal Copyright Convention.131 Section 6 provides that works of national folklore “are protected by all means without limitation in times.”132 The “authors” of such works enjoy the same rights under the code as other copyright owners, including the rights of economic exploitation133 and moral rights.134 Because such works do not traditionally have a single identifiable author capable of exploiting these rights, the Model Law gives ownership of such works to “competent authorities.”135 These authorities are appointed by the government.136 In a similar vein in 1985 the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions required protection for “expressions of folklore,” which were broadly defined as “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community … or by individuals reflecting the traditional artistic expectations of such a community.”137 The Model Provisions required permission from the “competent authority” or “community” for when protected expressions of folklore are used “with gainful intent” and “outside their traditional or customary context.”138 Unlike the Tunis Model Law, the Model Provisions did not refer to moral protection has been raised as an issue of human rights and the value of various sui generis regimes, outside the scope of IPR has been hotly debated. 129 The term “non-traditional” is used to distinguish those works of identifiable authorship or technological novelty that have generally been protected under copyright and patent laws, respectively, from those works of folklore and folk medicine that do not readily fit within the perameters of these doctrines, at least as practiced by Western countries. It is not intended to serve as a value judgement on such works and inventions. 130 Admittedly, the debate over the protection of indigenous creation and innovation is broader than the question of whether such rights are protectable under intellectual property regimes. In her Study on the Protection of the Cultural and Intellectual Property Rights of Indigenous Peoples, E/CN4/Sub.2/1993/July 1993, UN Special Raporteur Erica Irene Daes objected to any attempt to “try to subdivide the heritage of indigenous peoples into separate legal categories such as ‘cultural’ ‘artistic’ or ‘intellectual.’” She believes “all elements of heritage should be managed and protected as an integrated whole.” An exploration of these and related issues is beyond the scope of this Article. 131 Universal Copyright Convention, 25 U.S.T. 1341 (July 24, 1971). 132 Tunis Model Law at Section 6, reprinted in Doris Estelle Long and Anthony D’Amato, 2000 DOCUMENTS SUPPLEMENT TO A COURSEBOOK IN INTERNATIONAL INTELLECTUAL PROPERTY (West 2000). 133 Id. at Section 4. 134 Id. at Section 5. These moral rights include the rights of integrity and patrimony. 135 Id. at Section 6. 136 Id. at Section 18. 137 Reprinted at www.wipo.int/globalissues/tk. at Article 2. (hereinafter referred to as “Model Provisions”). 138 Id. at Section 3.

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rights. Instead it sought to treat the protection of folklore in an entirely sui generis manner. Despite these models and the problems of fitting “folklore” within traditional copyright models, many developing countries expressly provide for protection under copyright for “folklore” or “folk art,” including Tunisia, Bolivia, Chile, Iran, Senegal, Colombia, Burkina Faso, the Dominican Republic, Panama, China, Sri Lanka, Jamaica and Oman.139 The emphasis by developing countries on the protection of their cultural heritage has gained increased prominence in the final decades of the Twentieth Century. A draft law to protect indigenous knowledge was posted by INDECOPI, the Peruvian Patent and Unfair Competition Office, in 1998.140 South Africa has also created a draft Legal Protection and Promotion of South African Indigenous Knowledge Act.141 Guyana has developed regulations governing the Access to Genetic Resources.142 New Zealand has enacted an Indigenous Label of Authenticity Act in 1999.143 Australia has drafted an Aboriginal Folklore Act.144 These are only a few of the most recent examples of domestic efforts to protect traditional knowledge.145 Moreover, as a result of the ease of communication offered by the Internet, and a recognized identity of interest, many countries are forming informal coalitions in order to assure consideration of these issues in fora that have been primarily dedicated to traditional intellectual property issues, including WIPO. Coalitions of developing countries succeeded in 1998 in putting the study of cultural protection into the budget of WIPO. In the Program and Budget for 1998-1999, a program “to identify and explore the intellectual property needs and expectations of new beneficiaries, including the holders of indigenous knowledge and innovations, in order to promote the contribution of the intellectual property system to their social, cultural and economic development” was expressly approved.146 Under this program, nine fact finding missions were conducted by WIPO to identify the intellectual property needs and expectations of the holders of traditional knowledge. WIPO issued a draft 139

See generally Dr. Michaly Ficsor, Attemtps to Provide International Protection for Folklore by Intellectual Property Rights, UNESCO-WIPO WORLD FORUM ON THE PROTECTION OF FOLKLORE (1997)(discussing diverse national law treatment of folklore under copyright regimes). 140 www.indecopi.gob.pe. See also FEM Report to South America, INTELLECTUAL PROPERTY NEEDS AND EXPECTATION OF TRADITIONAL KNOWLEDGE HOLDERS, WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE (1998-1999) (WIPO 2001). 141 See Cobus Coetzee and Elton Jefhas, EXPLOITATION OF INDIGENOUS PLANT GENETIC RESOURCES – ILLICIT OR LEGAL? A SOUTH AFRICAN PERSPECTIVE, www.aaic.org/98progrm2.html. 142 FEM to South America, INTELLECTUAL PROPERTY NEEDS AND EXPECTATION OF TRADITIONAL KNOWLEDGE HOLDERS, WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE (1998-1999) (WIPO 2001). 143 FEM to the South Pacific, INTELLECTUAL PROPERTY NEEDS AND EXPECTATION OF TRADITIONAL KNOWLEDGE HOLDERS, WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE (1998-1999) (WIPO 2001). 144 Id. 145 See generally INTELLECTUAL PROPERTY NEEDS AND EXPECTATION OF TRADITIONAL KNOWLEDGE HOLDERS, WIPO REPORT ON FACT-FINDING MISSIONS ON INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE (1998-1999) (WIPO 2001). 146 WIPO Budget Main Program, www.wipo.int. (1999). See also WIPO Report, supra note 145 at 16.

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report on its findings in July 2000, and a final report in April 2001.147 These reports may well be the first step in what may ultimately be the development of a multinational treaty dealing with the protection of traditional knowledge and other forms of cultural heritage. Moreover, WIPO is not the only multinational organization dealing with the issue. UNESCO, the Organization of African Unity, the United Nations, through its Working Group on Indigenous Population, among others have all considered the issue of protection of cultural heritage, cultural patrimony and/or traditional knowledge in recent years. This focus on protection of cultural works has even risen to the level of a movement against what many consider the ultimate evidence of globalization in the intellectual property arena – the WTO and TRIPS. Twenty-nine countries are currently seeking accession to the WTO and have had working groups established for such purposes. Last year alone five countries successfully completed the accession process, including Albania, Jordan, Oman and Georgia. As part of the accession process, countries generally implement the substantive provisions of the TRIPS agreement prior to joining the WTO. Accession to the WTO, and the opportunities it presents for trade benefits, including most favored nation status, is considered by many as part of the cost of admission to the global marketplace. Yet despite what appear to be such “obvious” benefits, many developing countries are actively questioning the value of WTO membership. At a WIPO-sponsored conference last year, one of the topics of informal discussion among government representatives from several Asian Pacific countries was the value of TRIPS accession in view of its perceived failure to provide adequate protection for the cultural products of these countries – traditional knowledge and folklore.148 The Internet and the global market potentialities of electronic commerce show similar signs of opposition. At its most fundamental level, infrastructure requirements, including telecommunications, equipment and legal regimes preclude many countries from participating in this global market. Concern over the “digital divide,” that has been the subject of increasing international study, however, is not limited to economic or class divisions. Instead, such divide includes cultural and race issues as well149. Serious concern has also been raised by some countries as to the destabilizing and potential de-culturizing effect unfettered Internet access may have upon local political and ethnic cultures. Thus, for example, in December 2000, the Bundesgerichtshof held that German law against inciting racial hatred could be applied to Internet content originating in Australia. It upheld the conviction of Frederick Töben for spreading “Auschwitz lies” in violation of anti-Nazi laws. The conviction was based upon his running a Holocaust denial web site from Australia.150 Similarly, six directors of an 147

See WIPO Report, supra note 145. The Draft and Final Reports can be found at www.wipo.int/globalissues. 148 Diverse Conversations with Vicki Allums, Legal Advisor, Office of Legislative and International Affairs, US Patent and Trademark Office. 149 See, e.g., Beth Kolko, Lisa Nakamura and Gilbert Rodman (editors), Race in Cyberspace (Routledge 2000). See also NTIA Study: Falling Through the Net, www.ntia.gov. 150 Steve Kettman, German Hate Law: No Denying It, Wired News Online (December 15, 2000).

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Indian Internet portal called “Rediff.com” are currently on trial in Pune for “giving access to pornographic material” through the operation of a search engine without filters in place to block sex-related materials.151 Both decisions have been sharply criticized. Yet at their heart, each represents a clash in cultural values – the globalized goal of free access to information versus localized laws against racial hatred and pornography These “cultural” counter-trends to globalization raise serious questions as to the duration or ultimate effectiveness of globalization. They also lay at the heart of the question of the effectiveness of current harmonization efforts in the IP arena V.

The “Mirage” of Harmonization

Perhaps the adage that the view from a mountaintop depends on which direction you are facing is telling when it comes to an analysis of the phenomenon of globalization. But the mountaintop of globalization, seen through the telescope of intellectual property protection, does not appear to lead itself inevitably to an unobstructed view of global harmony, despite the efforts of many in the global community to achieve such a result. The emphasis on a uniform approach to protecting intellectual approach to protecting intellectual property for transnationally-marketed products is as old as the first international Author’s Union established by Victor Hugo to consider, inter alia, the problem of book piracy in the 19th Century.152 What has changed, however, is the pace at which such international harmonization efforts occur. Indeed, if the past 10 years is any indication, harmonization has become the new “flavor of the month” in the IP community. At the institutional level, the early promise of the Berne and Paris Unions as potential institutions for harmonization ultimately proved groundless. Both the Berne Convention for the Protection of Literary and Artistic Works (first adopted in 1886) and the Paris Convention for the Protection of Industrial Property (first adopted in 1883) served as the significant initial efforts at establishing minimum substantive standards for the international protection of copyrights, and trademarks and patents, respectively. Their combination of the requirements of national treatment, combined with substantive minimum standards, continues to serve as a guide for all subsequent multinational IP treaties. Yet the perceived politicization of WIPO as a forum for international change, the lack of mechanisms for enforcing compliance with treaty obligations, and the failure of international efforts to amend these provisions to meet the twin demands of market and technological changes since 1971 effectively marginalized these institutions as a force for harmonization.153

151

Manu Joseph, Porn a Thorn for Indian Portal, Wired News Online (December 4, 2000). See note 38 supra. 153 Although Diplomatic Conferences of Revision for the Paris Convention were held in 1980, 1981, 1982 and 1984, no significant revision was agreed upon. Thus, it appears that the last date of significant 152

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The vacuum left by the inability of multinational organizations to promote harmonized standards in multinational fora was filled during the 1970’s and 1980’s by regional efforts. For example, in 1988 the European Union established a Trademark Harmonization Directive which sought to “approximate” those member’s domestic laws “which most directly affect the functioning of the internal market.”154 These national laws included such diverse substantive matters as the definition of a protectable trademark, the rights granted to mark owners, and grounds for revocation and invalidity. In subsequent years, the pace and scope of the European Union’s IPR-based directives and regulations has increased dramatically. In 1991, the EU established a directive on Software Harmonization.155 In 1992 it established a directive on Lending and Rental Rights for copyright and neighboring rights.156 In 1996 it established a Database Directive157 and in 1998 it established a Biotechnological Inventions Directives.158 The EU’s activities have not been limited to harmonizing directives and standardizing regulations. To the contrary, in a major advance in the harmonization process, in 1984 the EU established its own Community Trademark (“CTM”). 159 This trademark, granted by a trademark office established and operated by the EU, gives its owner Community-wide rights in a registered mark. The CTM has proven so useful (or at least so popular) that the EU is currently working to establish a community-wide patent. The harmonizing role of the EU has not been limited to the practices and laws of its member countries. To the contrary, the United States itself has used some of the EU’s directives as a model for its own domestic legislation. The extension of the US term of copyright protection to a “life plus 70” term is largely in response to the prior term extension by the European Union.160 More recently, current US efforts to draft a sui generis database law were originally undertaken as a result of the prior EU Database Directive and its protection of collections of works, data and information as a result of the “substantial investment” of its makers.161 In fact, the first draft legislation to address the issue of sui generis protection for databases under US law,, the Collections of Information Antipiracy Act of 1997, tracked the approach of the EU Directive.162 alteration in standards under either the Berne or Paris Conventions before TRIPS was the modification of the Berne Convention in 1971. 154 See note 75 supra. 155 See note 77 supra. 156 Directive on Rental Right and Lending Right and on Certain Rights Related to Copyright in the Field of Intellectual Property, 92/100/EEC (November 19, 1992). 157 Directive on the Legal Protection of Databases, 96/9/EC (March 11, 1996). 158 See note 78 supra. Currently, the EU is studying such diverse topics as work for hire, e-commerce andc civil enforcement norms for IPR. 159 See note 79 supra. 160 See Copyright Term Extension Act of 1996, S. Rep. 104-315 (1996). 161 European Communities Directive on the Legal Protection of Databases, supra note 157 at Article 7. 162 H.R. 2652, 105th Cong. (1977) (introduced by Representative Howard Coble). It should be noted that the United States has also had an impact on developments in the European Union. Thus, for example, the grant of patents for computer software and for business methods has increased in the European Union in part in response to the broad scope of protection afforded such

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TRIPS and the Reinvigoration of Systemic Level Harmonization The establishment of the TRIPS Agreement in 1994 marked the beginning of what appears to be, if not a resurgence in, certainly a reinvigoration of, the IPR harmonization process. In fact this reinvigoration seems directly traceable to the initiation of negotiations under the Uruguay Round. Since 1986 with the issuance of the September Declaration, establishing intellectual property as an item of trade negotiations under GATT’s Uruguay Round, IP harmonization has grown exponentially. Most of the currently effective EU Directives were established after the initiation of the Uruguay Round, including all of the Directives discussed above. NAFTA was largely a pre-cursor to TRIPS, much as the FTAA may be a precursor to any reopening of the TRIPS Agreement in subsequent negotiating rounds under the WTO. There is no question that TRIPS is the premiere IPR harmonization document. Going beyond the earlier doctrines of national treatment and minimum substantive enforcement standards, TRIPS, in Articles 41 through 61, established minimum standards for the enforcement of intellectual property rights.163 Significantly, Article 41 required the “effective” enforcement of intellectual property rights and contained detailed requirements for civil and criminal procedures to assure such effective enforcement.164 Perhaps most importantly, treaty obligations, including this obligation of “effective” enforcement were enforceable under the dispute settlement mechanisms of the WTO. The pace of harmonization at an institutional level markedly increased after the establishment of TRIPS. Much as the downfall of the Soviet Union has been considered by many to be the start of the present phase of globalization,165 the negotiation of the TRIPS Agreement seems to be have reconfigured the international IP arena. Within two years of the conclusion of the Uruguay Round, a diplomatic conference held under the auspices of WIPO lead to the signing of the WIPO Copyright Treaty (WCT)166 and the WIPO Performances and Phonograms Treaty (WPPT).167 On their face, both of these can inventions under US patent law. Admittedly, such cross pollenization is caused largely by concerns over the economic impact that heightened protection may cause with regard to the exploitation value of such inventions. 163 TRIPS Articles 41-61 (establishing minimum enforcement standards for civil, border and criminal enforcement measures for the protection of intellectual property rights). 164 TRIPS, Article 41. 165 See Thomas Friedman, supra note 2 at iv; Samuel Huntington, supra note 2 at 13. Although Huntington’s “Clash of Civilizations” is more directly related to developing a predictive system of international relations at the geo-political level and he himself describes globalization theory as a theory of “sociology,” Huntington, supra at 67, his world view includes an analysis of future economic development at the global level and must at that level be considered a different “view” of economic globalization. Moreover, Huntington himself admits that “globalization theory produces a similar conclusion [regarding the role of identity in cultural clashes]: ‘in an increasingly globalized world – characterized by historically exceptional degrees of civilizational, societal and other modes of interdependence and widespread consciousness thereof – there is an exacerbation of civilizational, societal and ethnic self-consciousness.’” Id. at 68 (citation for source of quotes missing in the original). 166 WIPO Copyright Treaty, 36 I.L.M. 65 [hereinafter “WCT”]. 167 WIPO Performances and Phonograms Treaty, 36 I.L.M. 26 [hereinafter “WPPT”].

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be considered TRIPS add-on agreements. They were negotiated by many of the same parties that had concluded the TRIPS negotiations. They also added definitions to the Berne Convention that had already been established under TRIPS, including, for example the extension of the definition of a literary work under Article 2 of the Berne Convention to include computer programs, and the extension of a tri-partite test to all potential fair uses of a copyrighted work.168 Similar to TRIPS, the WCT and WPPT both included requirements of “effective” enforcement of their affirmative obligations.169 They also, however, filled some of the gaps that had not been addressed by TRIPS, including, significantly, the treatment of copyrighted works on the Internet. In 1998 the Trademark Law Treaty was finalized, harmonizing trademark registration requirements.170 In 2000 the Patent Law Treaty, harmonizing patent registration requirements, was finalized.171 In December 2000, a diplomatic conference was convened with the ultimately unsuccessful goal of establishing a multinational treaty concerning the protection of audio-visual works on the Internet.172 Currently, WIPO committees are working toward diplomatic conferences in the future on treaties involving such diverse issues as patent harmonization and (potentially) civil jurisdiction. Admittedly each of the multinational treaties discussed above were developed and negotiated over a period of years. Nevertheless, the sheer number of such new treaties, given the paucity of such agreements in the previous decades, provides some evidence of a change in the perceived desirability of engaging in such harmonizing activities. Harmonization efforts in the post-TRIPS era have not been limited to the negotiation of bilateral and multinational treaties. To the contrary, recently the process of harmonization has begun to by-pass formal processes. Instead, joint recommendations by standing committees have taken the place of negotiated treaties. Within the past two years, the WIPO Standing Committee on Trademarks has established Joint Recommendations on Famous Marks,173 on Trademark Licensing,174 and on the use of Trademarks on the Internet.175 The Joint Recommendations on well-known marks and trademark licenses were subsequently adopted by the General Assembly of the World Intellectual Property Organization (WIPO). The process of establishing such recommendations are generally more rapidly resolved, thus, accelerating the harmonization process.

168

Article 9 of the Berne Convention had previously only addressed fair use in terms of the right of reproduction. 169 WCT at Article 14; WPPT at Article 23. 170 Trademark Law Treaty, www.wipo.int/treaties/ip/trademark-law/treaty.htm (October 27, 1994). 171 Patent Law Treaty, www.wipo.int/treaties/ip/plt/treaty.htm (June 1, 2000). 172 See generally AV Diplomatic Conference Materials at www.wipo.int. 173 Joint Recommendations Concerning Provisions on the Protection of Well-Known Marks, www.wipo.int/sct (adopted by the General Assemblies in September 1999). 174 Joint Recommendations Concerning Trademark Licenses, www.wipo.int/sct (adopted by the General Assemblies in September 2000). 175 Draft Provisions Covering the Protection of Industrial Property Rights in Relationship to the Use of Signs on the Internet, SCT/5/2 (September 2000).

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Even organizations which have not previously been concerned or involved in the development of IP harmonization standards have begun to devote time on their agendas to such topics. In the past year alone the issue of IP protection has been discussed by such diverse organizations as APEC,176 UNECE,177 OECD178 and the Council of Europe. Draft treaties concerning criminal enforcement of copyrighted works in cyberspace and jurisdiction over transnational suits involving trademark and copyright enforcement are being negotiated in the Council of Europe and the Hague Conference on Private International Law, respectively. 179 Regional efforts have also accelerated. In addition to the earlier-described efforts of the European Union, the United States has begun to increase the number of free trade agreements it is presently negotiating, all of which are expected to contain significant intellectual property provisions. Last year the US government entered into a bilateral Free Trade Agreement with Jordan, and continued negotiations on the Free Trade Agreement of the Americas. This year, the USTR has already notified its intentions to enter into negotiations with the governments of Chile and Singapore for free trade agreements.180 The scope of topics covered by such harmonization efforts has similarly expanded. In addition to traditional concerns over registration requirements and substantive rights, an increasing number of treaties are dealing with such non-traditional areas of concern as licensing and enforcement. Since NAFTA first raised the issue, harmonization efforts in the area of enforcement have nearly taken on a life of their own. TRIPS, the WCT, and WPPT all contain requirements that parties provide “effective” enforcement of intellectual property rights.181 Moreover, as noted above, these “effective enforcement” measures are not limited to border actions – the “traditional” domain of transnational enforcement efforts. They include requirements for civil and criminal measures as well.182 VI.

The False Security of Harmonized Standards

Despite this global emphasis on harmonization, a close analysis of the actual results of these efforts proves that harmonization, like its twin, globalization, is not the 176

The Asia Pacific Economic Cooperation is composed of diverse member countries from the Asia-Pacific region as well as other developed and developing countries, including the united Sates, Russia, Mexico and Canada. 177 The United Nations Economic Commission for Europe is a regional commission of the United Nations which has increasingly focused on IPR protection issues, among others. 178 The Organ for Economic Cooperation and Development is an organ of the United Nations which has addressed diverse trade issues, including, IPR protection issues. 179 These two treaties are the Draft Cybercrime Convention, www.conventions.coe.int, and the Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, www.hcch.net, respectively. The Draft Cybercrime Convention was signed by the members in June 2001. See Council of Europe Signs Draft Cybercrime Treaty, www.thestandard.com (June 22, 2001). 180 See generally www.ustr.gov/regions/asia-pacific/regional.shtml (notice and report regarding Singapore Free Trade Agreement). 181 TRIPS at Article 41; WCT at Article 14; WPPT at Article 23. 182 See TRIPS, Articles 41 – 61 (discussed supra note 163).

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panacea for international intellectual property protection ills. If one of the goals of harmonization is to protect the icons of consumer culture, then effective globalization requires that the intellectual property owner be guaranteed a predictable level of protection. At a minimum, such protection should assure that the owner can expect the grant of certain rights, and the ability to protect those rights in a predictable manner against unauthorized uses. These guarantees become even more important in a global marketplace undergoing the rapid integration anticipated by Friedman and others as a result of economic globalization. Yet the leveling effect of globalization is not present in the IP arena despite a plethora of documents that appear to indicate the contrary. On the most fundamental level, if TRIPS truly represented the zenith of harmonization, its terms and conditions would not be the subject of so much debate. The meaning of such basic provisions as the definition of a patentable invention under Article 27 has become the topic of heated international dispute. Despite the relatively clear declaration the patent protection shall extend to “any inventions … in all fields of technology,”183 the scope of this extension remains contested. These disputes are not limited to the predictable areas of what tests are to be applied to determine “newness” or “inventive step,” although such discussions are taking place. Nor are they limited to debates over the application of these traditional patent standards to new fields of inventive endeavors. Debates over the propriety of extending patent protection to newly evolving technological developments, such as business methods on the Internet, is inevitable and in my view does not demonstrate a lack of effective harmonization. To the contrary, the present debates over the inclusion of pharmaceuticals, and agro-chemicals that are roiling the international community, in light of the clear declaration in Article 27 that all fields of technology should be covered, demonstrate a lack of agreement at the most fundamental levels. To dismiss these complaints, as many in the West have done, as merely the whining of poor losers ignores what is being said. If so many countries want to re-make the deal, can TRIPS really be considered an example of IP harmonization? Or is it closer to the gunboat diplomacy of the 19th Century when western countries sought to impose their civilization on the “barbaric peoples” of the world? Moreover, such definitional disagreements are not limited to perceived attempts by developing countries to avoid the “bad bargain” made during the Uruguay Round. The first dispute resolution procedure concerning TRIPS obligations to go to a panel admittedly concerned a US complaint against India for India’s failure to establish pipeline patents in accordance with the timetable required under Article 70.184 The second, however, concerned a US complaint against Canada for its failure to accord full term protection to patented inventions.185 Furthermore, an examination of the complaints filed with the WTO indicate that many complaints represent North-North debates, as opposed to North-South ones.186 183

TRIPS, Article 27 (requiring protection of patentable inventions “in all fields of technology”). India- Patent Protection for Pharmaceutical and Agricultural Chemical Products, WTDS 50, www.wto.org 185 Canada- Patent Protection Term, WTDS 107/1, www.wto.org. 186 Overview of the State of Play of WTO Disputes, www.Wto.org. (January 15, 2001). 184

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Perhaps the most damning evidence of the lack of effectiveness of these harmonization efforts is the nearly total failure of TRIPS to achieve the effective enforcement goals set forth in Article 41. Despite the fact that as of January 1, 2000, all developed and developing countries who are members of the WTO are required to meet this obligation, piracy levels remain high.187 In its annual report under Section 301 last year regarding the failure of various trading partners to afford sufficient protection to US intellectual property, the USTR placed 1 country on its Priority List (the worst offenders), 16 countries on its Priority Watch List and 39 countries on its Watch List. It further designated two countries for Section 306 monitoring and three countries for out of cycle review. 188 The majority of these countries are TRIPS signatories and were cited for their failure to abide by the minimum standards of protection required under TRIPS. Quite simply, harmonized enforcement does not exist, despite the growing infatuation of the international community with the inclusion of such requirements in regional and multinational agreements. One potential defense to the present lack of appreciable harmonized standards under TRIPS may be the relative newness of the requirements, and the need for a clearer definition of what such standards actually entail. Yet, unlike relatively new legal doctrines under US law, such as dilution189 and cybersquatting190 which might also require interpretation, the number of complaints filed before the WTO has been relatively small given the apparent lack of agreement on the meaning of its terms. Admittedly WTO does not serve the role of a court per se. Yet it is the only organ whose interpretation of TRIPS provisions can be considered in any way binding. Moreover, if newness were the only problem, then other harmonization measures should not suffer from such lack of effectiveness. The Trademark Harmonization Directive has been in existence since 1988. Article 5 of that Directive provides that the proprietor of a registered mark “shall be entitled to prevent all third parties not having his consent from using in the course of trade” identical signs or similar signs where “there exists a likelihood of confusion … which includes the likelihood of association.”191 On its face, the directive should assure that the domestic laws of each member country should provide predictable, equivalent protection. Yet an issue as fundamental to the protection of trademarks as whether protection extends to marks that cause confusion as to affiliation (as opposed to source) remains unclear.192

187

According to the most recent Section 301 report filed by the International Intellectual Property Alliance, piracy loses for the video, sound recording and software industries totaled between $20 to $22 billion dollars last year. See Section 301 Report, www.iipa.com(2000). 188 Section 301 Report, www.ustr.gov (2000). 189 See, e.g., 15 U.S.C. §1125(c)(providing protection of “famous and distinctive” marks against unauthorized uses that dilute the distinctive quality of the mark). 190 See, e.g., 15 U.S.C. §1125(d)(prohibiting the unauthorized registration and trafficking in domain names that infringe or dilute a distinctive mark “with a bad faith intent to profit” from such activities). 191 Trademark Harmonization Directive, supra note 75 at Article 5. 192 See, e.g., Wagamama v. City Centre Restaurants PLC (1995) FSR 713 (Chancery Division).

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Marks protected in one country, may be considered generic in another.193 Patents may be infringed in one country by a particular product, which is subsequently found to be non-infringing in another.194 The predictable leveling effect of harmonization is not apparent in its practice. Quite simply, the result of harmonization is a mirage which lulls IP owners into a false sense of security. For all of the “harmonization” efforts that have occurred during the later part of the Twentieth Century, we still lack truly universal concepts of protection on which an IP owner can rely. Just as economic globalization has faltered in the face of cultural and ethnic clashes, so too has its IPR counterpart. The previously described debate over the protection of traditional knowledge that has riven the international IP community in recent years is only one example of cultural and political clashes that threaten the forces of harmonization. At its heart, international disputes over the terms of compulsory licensing of patented inventions, the treatment of clinical data in obtaining market approval for pharmaceuticals, and the scope of fair use in connection with technologically useful works represent fundamental disagreements over the relationship between the rights of the intellectual property owner and the necessity of technology transfer to the developing world. With the strengthened protection granted IPR holders under TRIPS, “reverse engineering and other methods of imitative innovation – that industrialized countries extensively used during their own processes of industrialization” could be increasingly restricted. 195 To counter this trend, TRIP permits the compulsory licensing of patented inventions under Article 31.196 Cases of national emergency or extreme urgency, licenses for governmental non-commercial use and licenses to remedy anti-competitive practices are specifically mentioned in the Article as permissible grounds for compulsion.197 Article 8 of TRIPS further allows governments to control, to a certain extent, private licenses between parties by allowing the prevention of “abuse of the intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.” 198 These provisions may serve to lessen the potentially harmful effects of strengthened IPR protection on legitimate technology transfer efforts. Yet the effectiveness of such lessening remains to be seen in light of the continue debate over the scope of these provisions. The political, philosophical and cultural differences that have stalled globalization (evidenced by the aborted Millennium Round in Seattle) and that may eventually overwhelm it are equally as potent in the IP arena. It is undisputed that there a fundamental philosophical difference regarding the basis on which intellectual property

193

Aspirin is considered generic in the United States, but is protectable in Canada and Spain. See, e.g., Improver Corporation v .Remington Consumer Products Limited, [1990] FSR 181 (Chancery Division 1989). 195 See, e.g., Carlos Correa, supra note 91 at 19. 196 TRIPS, Article 31 (establishing detailed procedures and limitations on the compulsory licensing of patented inventions). 197 Id. 198 TRIPS, Article 8. 194

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protection should be granted. These philosophical differences may be glossed over in the feel-good glow of harmonization, but they have not diminished or been vanquished. The “Problem” of Moral Rights

In most civil law countries, authors of copyrighted works enjoy both economic and moral rights in their works. Economic rights are generally embodied in the exploitation rights of reproduction, adaptation, distribution, display and performance. Moral rights are personal rights, related to the protection of the integrity and patrimony of the work, including the author’s ability to protect his reputation. It is undisputed that economic rights may be transferred or assigned. Those legal systems based on British common law, including the United States, primarily consider moral rights to be as disposable as economic rights. Thus, in the United State under the Visual Artists Rights Act, the author of a work of visual art may waive the rights he is otherwise granted under the Act to object to any harmful mutilations of his work.199 By contrast, in France, the right to protect one’s work from harmful mutilations can never be transferred or waived by contract. This personal right survives any transfer of the economic rights in the work.200 These two views of moral (or personality) rights are in diametric opposition to one another. They are based in the cultural and philosophical differences regarding the seminal issue of why copyright should be granted. Those supporting the transferability or waiver of moral rights consider copyright to represent an economic bargain between author and society.201 Those countries which oppose the transferability of waiver of such rights consider copyright (or more appropriately called “author’s rights”) to represent the protection of the spark of personality that each work represents.202 Such sparks of personality survive any transfer of economic rights and are therefore entitled to protection regardless of the economic status of the work. Decades of harmonization have not resolved or diminished the dispute. To the contrary recent attempts to craft a multilateral treaty dealing with the protection of audio-visual works on the Internet foundered on the inability of the participants to reach agreement on the transferability of such works, without the constraining bonds of moral rights. The history of harmonization efforts in the arena of moral rights serves as a paradigm for the present mirage-like status of IP harmonization efforts. The protection of moral rights at the institutional level first occurred with the inclusion of Article 6bis in the Berne Convention.203 This article required the protection of the moral rights of 199

17 U.S.C.§ 106A. See generally Anthony D’Amato and Doris Estelle Long, INTERNATIONAL INTELLECTUAL PROPERTY ANTHOLOGY, Chapter 6 (Anderson Publishing 1996)(containing diverse articles discussing the philosophic differences between Continental and US treatment of moral rights). See also Raymond Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 AM. J. COMP. L. 465 (1968)(describing French law and philosophy behind moral rights protection). 201 See generally Anthony D’Amato and Doris Estelle Long, supra note 200. 202 Id. 203 Berne Convention, Article 6bis. 200

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patrimony and integrity “independent of the economic rights of the author.”204 It further required that such rights be non-transferable and non-waivable.205 The obligation to protect moral rights was one of the reasons for the delay in US accession to the Convention.206 With the accession of the United States to the Berne Convention in 1989, it appeared that the forces of harmonization had finally triumphed. The signing of the TRIPS Agreement, with its pointed exclusion of Article 6bis from incorporation,207 however, appeared to signal either a change in direction or a slight bump in the harmonization road. Subsequent IP treaties, however, appeared to indicate that the problem posed by moral rights in TRIPS had been resolved. The WPPT specifically imposed an obligation to extend moral rights protection to performers for their aural live or fixed performances. 208 Yet the apparent harmonization represented by this postTRIPS treaty, which has been ratified by the United States, may have been only a mirage. When the hidden issue of the transferability of rights to an audio-visual work, less than two years after the last diplomatic conference to consider the issue of moral rights, the “trend” had changed. Ultimately the First Diplomatic Conference on the Protection of Audio-Visual Performances was unable to resolve the transferability issue. Apparently the harmony evidenced by the WPPT was evanescent. Much as the resolution of standards under TRIPS appears to be. If harmonization is a mirage, what is the explanation for the apparent increase in harmonization attempts in the IP arena? I think the race to harmonization can be explained largely by the “Davos Culture” described by Huntington in his Clash of Civilizations.209 This “culture” shares a belief in: “individualism, market economics, and political democracy….[They] control virtually all international institutions, many of the world’s governments and the bulk of the world’s economic and military capabilities. The Davos Culture hence is tremendously important. Worldwide, however, ….it is probably shared by less than 50 million people or 1 percent of the world’s population.” 210 The same one percent of the world’s population that believe in market economics and see economic globalization as the inevitable result of the technological and global forces unleashed by the disintegration of the former Soviet Union no doubt also see harmonization as a necessary and inevitable adjunct to such globalization. Thus, those government representatives who are involved in the negotiation and ratification of such 204

Id. Id. 206 Jeffrey M. Dine, Authors’ Moral Rights in Non-European Nations: International Agreements, Ecnomics, Mannu Bhandari and the Dead Sea Scrolls, 16 Mich. J. Int’l L. 545 (1985)(discussing the Berne Convention Implementation Act and US resistance to Article 6bis). 207 TRIPS at Article 9. 208 WPPT at Article 5. 209 See Samuel Huntington, supra note 2 at 57. 210 Id. 205

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treaties may believe that harmonization is a desirable goal. However, when the time arrives for the agreed upon standards to be given effect the remaining 99% of the population fails to act. Conclusion: Whither Harmonization? If harmonization is a mirage, the question must be asked whether present attempts should be abandoned as a misguided waste of time. Are the forces of Jihad and the Olive Tree so powerful that harmonization becomes a waste of time? An examination of the trends and counter-trends encountered by economic globalization raise warning signs about the effective future of IP harmonization. But they also demonstrate that steps can be taken to “democratize” the harmonization process, to respond to the cultural identity wars in an inclusionary manner to assure that harmonization is not abandoned or strangled by the counter-trends it engenders. It is too soon to answer, with any degree of confidence, whether harmonization will ultimately prove an evanescent mirage. I do not believe, however, that harmonization itself is an evil, pernicious or unattainable goal. If globalization analysis teaches us anything, it that it the method by which harmonization is currently being pursued, and the goals behind these efforts that may ultimately doom them to failure. Predictability of protection is a critical factor in the continuing development of the global marketplace. Those works and inventions which have been traditionally viewed as worthy of protection under intellectual property regimes are the building blocks of today’s global economy. Whether the works in question are the computer software that forms the foundation of knowledge based economies or the commercial symbols that guarantee the quality of the “hard” goods sold in the local marketplace, their protection lies at the heart of many commercial and industrial advances. Statistical evidence indicates that strong IP protection plays a role in a country’s economic growth.211 Actual effective harmonization that would guarantee a predictable level of protection for the products that fuel an increasingly globalized economy would undoubtedly assist industrializing countries in maximizing the benefits achieved from protecting IPR under domestic laws. But such harmonization should not be bought at the cost of the “olive tree” or a forced “modernization” that does not conform to cultural realities. When it is,

211

See generally Doris Estelle Long, First Let’s Kill All the Intellectual Property Lawyers: Musings on the Decline and Fall of the Intellectual Property Empire, -THE JOHN MARSHALL L. REV. – (2001)(discussing economic evidence regarding the impact of intellectual property rights protection on developing and developed countries). See also Keith E. Maskus, INTELLECTUAL PROPERTY RIGHTS IN THE GLOBAL ECONOMY (Institute for International Economics 2000); Robert Sherwood, Why A Uniform Intellectual Propety System Makes Sense for the World in GLOBAL DIMENSIONS IN INTELLECTUAL PROPERY RIGHTS IN SCIENCE AND TECHNOLOGY (National Academy Press 1993); Shahid Alikhan, SOCIO-ECONOMIC BENEFITS OF INTELLECTUAL PROPERTY PROTECTION IN DEVELOPING COUNTRIES (WIPO 2000); Hismitsu Arai, INTELLECTUAL PROPERTY POLICIES FOR THE TWENTY-FIRST CENTURY: THE JAPANESE EXPERIENCE IN WEALTH CREATION (WIPO 1999).

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the price is often political turmoil leading to a potentially Pyrrhic victory.212 For harmonization to be effective, the powerlessness and disaffection that arises from the sense of standards being imposed by outside powers must be minimized. The forces of opposition unleashed by the rapid advance of economic globalization are based on the same cultural and collective identity issues that underscore some of the challenges posed to the current pace of IP harmonization. In meeting the challenges and opportunities posed by the digital era, the international community must be as inclusive as possible. The rush to harmonization should not be based on a phantom ideal. International agreement on intellectual property standards must not only reflect a true “meeting of the minds,” it must be based on, and take into account, the differing cultures in which these standards exist. Unless the “olive trees” are respected and counted, the “lexus” may well find itself stalled on the road.

212

The example of the results of the dispute between Thailand and the United States in 1991 over patent protection for pharmaceuticals and the political instability that resulted serves as a strong cautionary tale. See Ted L. McDorman, Us-Thailand Trade Disputes: Applying Section 301 to Cigarettes and Intellectual Property, 14 Mich. J. Int’l L. 90 (1992)(discussing the political instability that arose from trade negotiations in the early 1990’s as a result of Thai compliance with US demands for heightened IPR protection).

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