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Sunday, Nov. 14, 2002

As the world becomes globalized - particularly via the Internet and other communications networks - the need to harmonize different countries' intellectual property systems has increased. For many, the ideal would be an international intellectual property system that offers uniform protection in all countries around the world.

In the past decade, the international community has devoted substantial effort toward making this ideal a reality. Examples of treaties with this goal in mind include the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the 1996 WIPO Internet Treaties. Together, these treaties create a multilateral system - one that was designed with a networked society in mind.

The Changing Lawmaking Process: Intellectual Property Law Goes Global

Obviously, countries differ in terms of their levels of wealth, economic structures, technological capabilities, political systems, and cultural traditions. Domestic policymakers therefore face different political pressures, and make different value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. These judgments - many of which make perfect sense as a matter of domestic regulation - have resulted in a conflicting set of intellectual property laws around the world.

However, as the world has become increasingly globalized, intellectual property lawmaking has moved from domestic political arenas to the international forum. As a result, the control of national governments over the adoption and implementation of domestic intellectual property laws has been greatly reduced.

International lawmaking has begun to replace country-based assessments and domestic policymaking as the predominant mode of intellectual property lawmaking. That may sound attractive - until one realizes that overriding or ignoring domestic international property policy judgments is not always a good idea.

Three disconnected communities, in particular, have suffered particularly badly as a result of international intellectual property laws. I will discuss each in turn.

Disconnected Community #1: Less Developed Countries

In the name of harmonization, the international intellectual property system often includes "universal templates" that seek to provide one-size-fits-all solutions to problems in the intellectual property field. Unfortunately, these solutions, usually modeled after laws in developed countries, often ignore the diverging conditions, needs, and aspirations of less developed countries - thus undermining the ability of these countries to compete in the global economy.

Even worse, the international lawmaking process has become increasingly vulnerable to influences from multinational corporations, trade associations, and value-driven interest groups. The resulting laws also ignore such important issues as consumer interests, national sovereignty, cultural diversity, ecological sustainability, and human rights.

The new global trading institutions - perhaps in part due to their youth - also suffer from a large variety of structural problems. The World Trade Organization, for instance, has a decisionmaking process that has been criticized for being insensitive, undemocratic, and opaque to outsiders. The WTO, critics charge, ought to offer transparent decisionmaking that outsiders can access and critique, and recognize that it is accountable to the global community for which it makes policy.

Disconnected Community #2: Indigenous Cultures

So far, the international intellectual property regime is largely modeled after the Western regime. Accordingly, it gives zero value to raw materials used in the production of intellectual property - raw materials that less developed countries are often the ones to supply.

Of course, it might be hard to convince developed countries to protect raw materials that are neither original nor creative under current definitions in their intellectual property laws. Yet it is equally difficult to explain why a particular intellectual property system should be adopted even when it is at odds with local socio-economic conditions and when it threatens the survival of indigenous cultures. A system that excludes raw materials from protection as part of the creative process virtually guarantees that indigenous cultures will see little of the proceeds of their labor.

In addition, the Western tradition ignores such precious, valuable raw materials as folklore, traditional knowledge, indigenous creations, native innovations, and cultural practices. Western society traditionally has protected only intellectual property in a fixed, concrete medium. We do our storytelling on paper, on the computer, on film or on television - not around a fire at a tribal gathering. And we only protect stories that are told they way we tell them.

After all, the current intellectual property regime does not necessarily embody universal values. Rather, as some commentators pointed out, it became universal because it was backed by great economic and military might.

Thus, it would not be surprising to see increasing efforts by less developed countries - in particular, those in Africa and Latin America - to push for a regime that offers stronger protection to folklore, traditional knowledge, and indigenous creations and inventions. Not every society's creative expression is written down with the specificity that the U.S. patent, trademark, and copyright agencies insist upon.

Disconnected Community #3: Information Have-nots

As Professor Robert Keohane and Dean Joseph Nye pointed out, "information does not flow in a vacuum, but in political space that is already occupied." Legal regimes, norms, and rules therefore will determine what sorts of communities would thrive in cyberspace, how information will diffuse from one country to another, and ultimately how much and how fully a country can participate in the New Economy.

Unfortunately, many of the intellectual property laws today fail to strike the balance between the rights of copyright holders and the need for public access to copyrighted materials. Access to information therefore has become increasingly difficult and unaffordable, and the gap between the information haves and information have-nots has widened. The "digital divide" is not just measured by who does, and does not, own a computer; it can also be measured by who can, and cannot afford to purchase copyright-protected materials.

U.S. critics also have demonstrated the inexpediency and unconstitutionality of proposed database protection legislation. In addition, they have cautioned that intellectual property laws might provide pretexts for search engines and content providers to delete materials that compete commercially against their products and services.

With the Internet and the networked global society, there was a realistic hope that information might be more widely and efficiently disseminated to all. Yet that hope has not been realized: the poor and disadvantaged remain excluded from the networked world.

Peter K. Yu is Acting Assistant Professor of Law, Executive Director of the Intellectual Property Law Program, and Deputy Director of the Howard M. Squadron Program in Law, Media & Society at Benjamin N. Cardozo School of Law, Yeshiva University. He is also Research Associate of the Programme in Comparative Media Law & Policy at the Centre for Socio-Legal Studies, University of Oxford. Professor Yu is the editor or co-editor of two books, Russian Media Law and Policy in the Yeltsin Decade: Essays and Documents and The Marketplace of Ideas: Twenty Years of Cardozo Arts & Entertainment Law Journal. His book Intellectual Property Lawmaking and the Global Economy is forthcoming from Kluwer Law International.

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