Intellectual Property and Asian Values
Yu, Peter K., Marquette Intellectual Property Law Review
Although Part I has shown that distinct values, approaches, or practices unlikely exist in the area of intellectual property protection and enforcement, questions remain regarding whether Asian countries will eventually develop unified positions on intellectual property law and policy. While the existence of Asian values, approaches, or practices may help develop such positions, such development does not depend on the existence of those values, approaches, or practices. The question, therefore, is not whether those values, approaches, or practices exist, but whether intellectual property values, approaches, or practices can be Asianized. (169)
To date, countries in different parts of the world have taken coherent positions as a regional group. The textbook examples are the African Group and the European Union. Thus far, the wide-ranging regional diversity has made it difficult for Asian countries to foster common positions. For example, Japan was instrumental in establishing the TRIPS Agreement and remains a key player in the push for plurilateral or multilateral efforts in the international intellectual property arena. It also advanced the proposal for ACTA and now serves as the agreement's depositary. (170) Meanwhile, Singapore and South Korea have entered into free trade agreements with the United States. (171) Because these high-income countries will benefit from stronger intellectual property protection and enforcement, they, with the exception of the ASEAN-affiliated Singapore, are unlikely to team up with their poorer neighbors to develop pan-Asian positions on intellectual property law and policy.
Nevertheless, the middle- and low-income Asian countries still have strong incentives to team up with each other to strengthen their own positions. As I mentioned earlier, the establishment of South-South alliances can be highly beneficial. These alliances, for example, "will allow less-developed countries to shape a pro-development agenda, articulate more coherent positions, or even enable these countries to establish a united negotiating front. The[y] ... will also help these countries establish a powerful voice in the international debates on public health, intellectual property, and international trade." (172)
Once Japan and South Korea are taken out, the most powerful alliance will arise when China, India, and the ASEAN members team up to foster common positions for the Asian developing world. Such an alliance can be described either as the China-India-ASEAN triangle or, in shorter form, Chindiasean. (173) Chindiasean is unique, as it unites two leading middle-income developing countries with an Asia-based regional group. (Although Singapore is a developed economy that may not benefit from positions taken by this regional alliance, its founding membership and growing leadership in ASEAN and such noneconomic considerations as security are likely to ensure Singapore to remain part of the alliance. (174))
From the standpoint of international intellectual property politics, the existence of both China and India, the two so-called BRICS countries, are important. Since the 1960s, Brazil and India have served as the twin leaders of the developing world in international intellectual property negotiations. (175) Although China until recently has not become active in the international community, it has since picked up tremendous momentum. The existence of China and India in Chindiasean, therefore, allows the alliance to be prominently featured in future international intellectual property negotiations. In fact, given the immense power of both China and India, which can only grow, any Asian alliance that excludes them is unlikely to succeed. (176)
Moreover, ASEAN can benefit from access to the Chinese and Indian markets as well as the influx of foreign direct investment from these two countries. Although ASEAN was constituted as a group, its constituent countries compete more against than complement each other. …