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JILT 2006 (1) Special Issue - Guest Editorial

ISSN: 1361-4169

Alternative Frameworks for the Validation and Implementation of Intellectual Property in Developing Nations: An Overview

Assafa Endeshaw
Reader in Information Law,
Information Law Research Group,
School of Legal Studies,
University of Wolverhampton

 


 

1. Introduction

 

The dominant jurisprudence in intellectual property (IP) views IP to be universal and therefore capable of being implemented in all countries regardless of time and conditions.1 It equates the failure in implementation of IP laws in developing countries (DCs) to lack of political good will or a desire to free-ride on the technological achievements of industrial countries.2 The major industrial nations3 have acted on these pronouncements to put pressure on DCs, directly or indirectly, to implement their IP laws to the satisfaction of those industrial nations. The US has taken the lead through its threats of trade sanctions routinely announced every year.4 The EU5 and Japan,6 on the other hand, have tended to apply persuasion by pointing to deficiencies of the DCs in IP lawmaking or enforcement and asking for explanations or changes.

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Some independent voices have called for mounting awareness campaigns in those nations. Others have also proposed pumping more aid into DCs to upgrade the latter’s IP laws and institutions. Groups like Oxfam and Médecins Sans Frontières (MSF) have sought to lobby for changes (such as in the marketing and distribution strategy of pharmaceutical companies) and to involve the general public in the West towards that end. In all respects, the introduction and development of IP laws in DCs has been increasingly wrested from the hands of local governments and interested domestic groups and turned into intensely contested spheres of activities where external forces stake their claims to undiminished authority. In recent years, for instance, the US has made its views known on this score by issuing, through its embassies, to governments in DCs an ‘Action Plan’ for IP in the specific country.7 Lately, the US has moved to inject huge chunks of its IP law into bilateral agreements with other (mostly developing) nations under the rubric of further liberalisation of trade. The grafting of US IP laws onto the laws of DCs through the mechanisms of Free Trade Agreements (FTAs) has sparked off debate and resentment as to the propriety of the approach to pre-empt multilateral negotiations

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Nevertheless, regardless of the FTAs, the mounting pressures and threats of supposedly retaliatory action against DCs by some of the advanced industrial countries, most DCs still fail to implement the laws they readily place on their statute books. The leading industrial nations routinely rebuke the DCs for failing to implement their IP laws and portray them as ‘pirates’ deserving of retaliatory action (usually sanctions). The DCs persistently deny any intentional lapse in enforcing their laws. However, the tension between the two groups of countries persists. The trade negotiations in the Doha Round (launched in November 2001) have borne marks of disappointment and grudges of the respective bloc of nations despite the concessions of the major industrial powers to ease the problems of access to drugs for public health purposes in DCs as well as to extend them assistance for transfer of technology and economic development. The debacle of the Cancun Ministerial Meeting (2003), the simmering discontent among DCs and the dilemmas of the major industrial nations as regards the way forward compound the urgent necessity for new approaches to promote international trade and economic development.

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Undoubtedly, the search for new approaches should include addressing the impasse in the IP field between the industrial and developing nations and finding alternative policy frameworks to overcome it. This demands re-examining the validity of the dominant jurisprudence in IP (referred to above), particularly its relevance to DCs. One way of achieving this is by discovering the internal factors that plague IP implementation in DCs. The principal aims of such an attempt would be to establish the key causes for the failure in implementation of IP laws in DCs as well as the relative significance of those causes and to suggest possible reforms in IP policy and practice.

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It was within this context that the Second International Symposium on Information Law held on the 3rd of February 2006 at the School of Legal Studies, the University of Wolverhampton, focussed on “Alternative Frameworks for the Validation and Implementation of Intellectual Property in Developing Nations”. It brought together leading thinkers and practitioners in IP law and policy from across the world to deliberate on the current problems in DCs that plague IP both in the area of lawmaking and implementation and chart the tasks and activities that researchers, legislators, policy makers and governments need to undertake to resolve them. As regards validation, the Symposium sought to scrutinise the existing legal and institutional structures relating to IP in DCs and propose possible reforms or new paths forward to revitalise the current system. In relation to implementation issues, the Symposium aimed to flesh out the key causes for the failure, suggest remedial solutions and identify the directions of empirical studies in IP law and policy for DCs.

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2. The Papers in this Special Issue

 

The collection of papers in this Special Issue of JILT represents edited versions of the proceedings of the one-day Symposium. The symposium was organised in consecutive sessions that addressed (a) institutional issues (b) the role of intellectual property in general, and (c) the role of intellectual property in specific areas or countries. This overview of the contents of the papers follows the same sequence.

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2.1 Institutional Issues

 

Christoph Antons' paper, “Intellectual Property Law in Southeast Asia: An Institutional Analysis” traces the legislative developments, over more than three decades, in the member countries of the Association of Southeast Asian Nations (ASEAN) before examining whether or not IP principles have been embraced among the wider population and the institutional framework for its further development. In looking at the records of ASEAN member countries, Christoph refers to the extended range of legal reforms concerning procedural rules, the judicial administration and the IP system including aspects of the enforcement structure introduced in each. He recounts the bilateral (the US and the EU) and multilateral pressures brought to bear on ASEAN member countries to update and constantly revise their IP system. He observes that the diversity of heritages (including colonial ones) of the member countries as well as their differing economic standings make the modernization of their IP systems in a short time quite interesting. He adds to this the divergence that has emerged in recent years among member nations as regards the importance they attached to IP law. He points to the difficulties that ASEAN governments have faced in creating awareness among their population of the value and intricacies of IP as well as the unevenness in awareness as regards parts of the IP system.

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While stressing that the reforms introduced are part of a largely undeveloped legal system, Christoph's investigation of the role of the IP system and whether it has fulfilled the expected objectives of promoting technological development and foreign investment throws up a number of observations. He notes a growing shift in IP law from “rule by decree” to “rule of law” brought about by adherence to international obligations and the opening up of the process to public scrutiny and debate. As regards the administration of the IP system, he reiterates the continuing difficulties arising from inadequate finances, lack of technical expertise including qualified lawyers (arising from a lean curriculum at universities) and poorly managed enforcement agencies as well as the diverse attempts to overcome these across ASEAN. Finally, Christoph proposes a few reasons for the slow pace of harmonisation of IP that ASEAN had agreed upon: the fear of loss of influence and income by the respective national institutions; opposition from local practitioners for the same reasons; and the argument that a regional system could not achieve more than what a multilateral system such as the Patent Cooperation Treaty (PCT) would be able to.

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Christoph concludes by pointing to the increasingly differing levels of IP protection in ASEAN countries though legislative reform has been rather swift and pressures have been mounting against them to set up institutional structures to shore up the IP system.

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Ruth Soetendorp takes up “ Developing the Curriculum for Collaborative Intellectual Property Education” as part of an exploration of issues relating to capacity building and institutional bases for IP. Ruth starts off by pointing out that IP education and, above all, how it might be learnt has gained importance in recent years owing largely to the economic, ethical, social and policy challenges that IP presents to both academic and business communities internationally. She also refers to academic cross-disciplinary collaborations that have started to take shape around IP in response to the growing demand to understand and apply its concepts and rules. She contends that the rise of international collaborative research has led to re-examination of fundamental assumptions and the development of new methodologies as well as resources. At the same time, she cites hurdles in international collaborative work such as managing the process (costing, funding and related issues) and the "reluctance of universities to accommodate interdisciplinary appointments".

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In the area of teaching, Ruth argues that IP would largely remain a law subject taught by lawyers to future practitioners; yet, she notes emerging experiences of teaching IP in non-legal disciplines in higher education and throughout the school system, both in the UK and across the world. She points to serious questions that arise in the teaching of IP to non-lawyers. These relate to the scope of the IP syllabus, the persons in charge of teaching it, the time, mode and available resources for such. Ruth's paper presents much anecdotal evidence in answering the questions about scope and the academics involved in teaching. She also discusses the results of a survey on collaborative interdisciplinary teaching and research in IP conducted among members of two IP networks (with largest responses coming from Western Europe and North America). The figures suggest that the majority are "law academics, working in law faculties", "teach outside their own law faculty" or engage in "collaborative IP research".

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Ruth argues that the IP law curriculum in law schools constantly develops to make it relevant to businesses and the creative industries as well as in response to technological changes and the demands of employers and professional accreditation bodies. The curriculum for non-lawyers focuses on creating awareness of IP concepts and developing competence in recognising, protecting, exploiting and enforcing such rights.

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2.2 The Role of Intellectual Property in General

 

Abdul Paliwala opens the discussion of the broadest issues of the general role of intellectual property (IP) in developing nations through his paper, “Free Culture, Global Commons, Pirates and Cowboys: A development agenda for information technology diffusion”. He sets the scene by referring to the globalisation of IP largely dictated by the developed countries thus exacerbating the growing divide in global distribution of digital information and technology, on the one hand, and the World Summit on Information Society held in December 2005 at Tunis with its suggestions for solutions to the divide, on the other. He notes, however, that the reaffirmation, at Tunis, of the Declaration of Principles and Plan of Action of the earlier Geneva Summit, in particular "universal access to the infrastructure and services of the Information Society" did not find support in any specific pronouncements on the attendant IP issues. He therefore aims to examine "the critical role of the global expansion of IP rights in the construction and maintenance of digital inequalities" between developed, newly industrialising and developing countries, a task ostensibly to be undertaken by the World Intellectual Property Organisation (WIPO) and, yet, foisted on that organisation by the “Friends of Development” countries that have sought to inject a 'development agenda' into its operations.

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Abdul starts by defining the changing state of information generation and production achieved by "interactive networks as opposed to hierarchised production processes", enabled by information technology. He contends that the "changed relations of production" transform "previously accepted notions such as the nature of authorship" although prior forms of IP have not been supplanted -- on the contrary, they continue to straddle both the old and new forms of production, thus expanding the property rights of the respective business. To explain the failure in IP to recognise the changes, he alludes to the differences in the rulings between the US cases of Napster and Grokster.

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Abdul then explores the nature of the new society by reference to the works of a few writers. He cites first Benkler's notions of two sets of information societies (the early "industrial information economy" being replaced by the "networked information economy") and the attendant differences in the relations of production they necessitated. It is argued that the latter will lead to "non-market production" playing an increasing role in the information and cultural sectors and the promotion of sharing as espoused by the creative commons, free and open source movements. Abdul then introduces Hardt and Negri's views of "multitudinous relations of production" which hold essentially that, in a globalised world where a "single logic of rule”, "of Empire" holds sway, "knowledge is always produced in collaboration and communication, by working in common in expansive and indefinite social networks". It is asserted that, in such surroundings, "the workers of the multitude find the potential to free themselves from the shackles of corporate control and enclosure of the global commons" perpetrated by IP. Abdul briefly mentions critiques of these views and ends by pointing to Castell's of the coexistence of the two forms of production

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Abdul then relies on Benkler's notion of the industrial information economy to explain the rapid extension of corporate control of IP, "the invasion of the Global Commons", and of globalisation of the US approach to IP (represented by TRIPs) and the concomitant rise of various movements in opposition to it: Finally, he briefly considers the nature of the digital divide and of need to rethink the notions of both sanctity of property and piracy in order to enable particularly people in developing and newly industrialising societies to developing countries to bridge that divide. He refers to the Open Source and Open Content movements, with some adaptation to the conditions of developing countries, as providing alternatives "because they legitimately by-pass the barrier created by intellectual property rights without challenging these rights."

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Assafa Endeshaw's paper “Intellectual Property and the ‘WIPO Development Agenda’” takes up for an extended inquiry an aspect of Abdul Paliwala's contribution (just discussed): the proposals of the 'Friends of Development' (FOD) comprising of Argentina, Brazil and 12 other developing countries (DCs) of Africa and South America to introduce a 'Development Agenda' into the operations of the World Intellectual Property Organisation (WIPO).

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Assafa briefly traces the historical experiences of DCs in their persistent but unsuccessful attempts to reform the international IP system as well as locally. He argues that the DCs had misguided notions about how the system came into being and how the major powers intended it to develop. As "the DCs could not grasp that their aspirations were in diametric opposition to the pressures and activities of the industrial nations to extend that system and even deepen it...[t]he reform movement was therefore doomed to fail." He then recounts how the post-TRIPs hopes among DCs for some form of revision of TRIPs, to be undertaken as part of the “built-in agenda” and the general allowances for change in TRIPs as well as the new (Doha) round of international trade negotiations under the auspices of the World Trade Organisation (WTO), were repeatedly dashed by the major industrial powers. The resistance of DCs to further trade negotiations which did not take account of their development needs (as recognised under the Doha Development Agenda) as well as anti-globalisation movements that voiced the problems of economic and social transformation in DCs have disrupted multilateral sessions (the latest being Cancun in 2003 and Hong Kong in 2005). However, the call for reform of the global trading system by, and on behalf of, these nations has not been accompanied by a similar resolve to examine the role of IP in the development of non-industrial nations.

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It was within this context that the fresh attempts of the FOD to revisit the role of TRIPs in the economies and cultures of DCs acquire tremendous significance. Assafa maintains that, although formally presented as an initiative to articulate a “ development agenda” for the WIPO, the proposal put forward by Argentina and Brazil amounts to a veritable reordering of the international IP system. He argues that the main aim is to enable taking measures “to ensure, in all countries, the costs do not outweigh the benefits of IP protection”. The proposal comprises of four basic components: the role of WIPO to change and reflect a ‘ development dimension’; technical assistance to be part of a broader scheme of its engagements; participation of civil society to be introduced in its activities; the establishment of a body under WIPO to effect transfer of technology to DCs; and curb abusive practices by rights holders. The proposal above all exhorts nations that further changes in IP should “preserve public interest flexibilities and the policy space of Member states”.

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Assafa summarises the positions adopted by the major industrial powers (US and UK) as well as Mexico, India, Bahrain (on behalf of Middle Eastern nations) and Morocco (on behalf of African nations). Predictably the US was absolutely opposed to the proposal and was the first to say so. The UK took a middle position but effectively supporting the US. Mexico sided the US whereas India sided the FoD but did not join it.

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Assafa argues that the proposal is steeped in the thinking (‘ideology’) that all nations will be served by the same set of IP laws although it refers to IP as a ‘policy instrument’—a basic weakness DCs always suffered from. He contends that the fallacious propositions that permeate the proposal, namely that the international IP system culminating in TRIPs can still facilitate the transformation of DCs and that it possesses sufficient flexibility amenable to the needs of such nations will prove to be its own undoing. He counsels that if FOD seek to succeed in their pursuit, "they need to move away from battling the international system and concentrate on the formulae suitable to DCs".

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Graham Dutfield continues the general examination of the IP system in his paper, “To copy is to steal”: TRIPS, (un)free trade agreements and the new intellectual property fundamentalism". His paper concentrates on the rising importance of free trade agreements (FTAs) as ways of further extending the obligations of DCs.

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Graham starts off his paper by pointing to the perception that the vagueness of the TRIPs might allow DCs to apply creative interpretations to its provisions to meet their domestic requirements. Yet, he argues, such opportunities are diminishing rapidly partly as a result of strategies developed by the US and EU to pressure DCs into accepting more rigid and higher standards of IP protection than TRIPS requires of them. He views one of the most important of these effective strategies to be free trade agreements (FTAs) which "seem to be neither wholly free, since the IP provisions in them are inherently protectionist, nor fair to the weaker negotiating parties." He contends that the "highly constraining and protectionist 'TRIPS plus' IP provisions" not only seem to be designed to serve the interests of corporations from the developed economies but those corporations and other business groups have been behind the negotiations for TRIPS plus measures. Governments in developed countries (US, EU and Japan but also some in East Asia) favour the adoption of TRIPS plus rules because they are major producers and exporters of IP-protected goods and services and expect to gain more from such rules.

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Graham points to a new zeal or rhetoric attached to the promotion of TRIPS plus rules which he prefers to call "the new intellectual property fundamentalism". The features of this rhetoric are its equation of copying to piracy and, even, linkage of piracy with terrorism; the fact that its targets are largely DCs. Yet, Graham argues, the new IP fundamentalism is "both dishonest and potentially dangerous". While the US and the EU would not allow the elimination of well-known limitations to monopoly rights under patent and copyright laws in the shape of permissions to copy in specified circumstances, they have forced on DCs stronger IP standards such as these. He cites as an example the extension to many countries, through FTAs, of the copyright term to life plus seventy years (adopted in US and EU) without also inserting the balancing mechanism of fair use provisions. He wonders whether, ultimately, if the reversal of the historical experience of all the developed nations, namely that they learnt and imitated from each other, through the blockage of such avenues under ever stronger IP, might allow the poor nations to catch up?

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Finally, Graham poses the question whether the promotion of stronger forms of IP in other countries by the US will last considering the dramatic increase of Indian and Chinese patents in the US and the migration of research jobs and investment out of it? He forecasts that such a stance will change, and that the US might once again change tack and turn into the leading patent and copyright-sceptic nation it once was.

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Michael D. Pendleton's “ The Digital Divide - International Enforcement of Digital Lockup" examines the extent to which surreptitious access to digitised information (software, music, medical diagnostics and the like) has been matched by appropriate legal protection in a few jurisdictions (Hong Kong, Australia and the US). He refers to the varied legal responses in nations (such as a prosecution by the enforcement agencies in Hong Kong of a person who illegally downloaded a movie) as well as the persistent pressures of the US to have all nations follow US IP law and practice including outlawing attempts to circumvent ‘digital lockup’ . He points to the difficulty countries could face in applying US law on 'digital lockup’ because those countries do not have in their laws the safeguards US IP provides domestically against abuse (through the fair use provisions and anti-trust law). He views establishing a balance between user and provider interests or exclusion and access rights to be crucial in applying the law on digital lockup.

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Michael then examines the relevant case law in Australia and the US regarding the creation of a balance between liabilities and rights in exclusion or access of rights such as experience by internet service providers (ISPs) or carrier service providers (CSPs). He reviews the law as to authorisation of infringement of copyright; the relevant statutes in the DMCA on CSP liabilityand safe harbours as applied to the US and Australia; and P2P cases in the US. He concludes by giving a warning to all nations that shortfalls in the application of the US digital lockup law agreed to bilaterally or multilaterally will end in ‘digital lock up’, that is having "no access to technological and cultural products of US origin or dissemination."

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Ke Shao finally presents his perspective in the development of IP in China in his paper, “ What May Validate Intellectual Property in a Traditional Chinese Mind?: Examining the U.S.-China IP Disputes through a Historical Inquiry”. Shao argues that the criticism levelled against DCs as regards the level and implementation of IP should not be met only by further bolstering of the IP system in those countries but by improving "the current international IP regimes per se". He seeks to examine this proposition by looking at how the Chinese IP system came into being.

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Shao looks into the indigenous development of IP in pre-modern China to establish that, unlike the privileges granted to creators in Europe, the users of the intellectual works were not forgotten--a fact which he seeks to link with the outstanding achievements of China in the fields of education, technology and the economy. Shao then examines the U.S.-China IP negotiation since the 1980 which was, arguably, not informed by historical evolution of IP in China but by the 'missionary’ zeal of the US. He views the results of this engagement was a high level IP regime favouring U.S. interests while in practice China was always reluctant to fully enforce it, fearing that national creativity may be stifled. He concludes that DCs should be allowed to "validate their IP regime from the perspective of ‘balance’ rather than the IP theories put forward by the developed countries."

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3. References

1 See, generally, F.K, Beier, “The Significance of the Patent System for Technical, Economic and Social Progress”, 11 I.I.C. 569, (1980); R. Michael Gadbaw and Timothy J. Richards, eds., Intellectual Property Rights : Global Consensus, Global Conflict? 1988; and Robert M. Sherwood, Intellectual Property and Economic Development, Boulder: Westview Press, 1990.

2 See, Marshall A. Leaffer, “Protecting United States Intellectual Property Abroad: Toward a New Multilateralism”, 76 Iowa Law Review. 273, (1991); and Robert M. Sherwood, “The TRIPS Agreement: Implications for Developing Countries”, 37 IDEA 491 (1997). By contrast, other writers have contended that the IP laws in DCs are not rooted in their social-economic conditions and, consequently, their role will remain peripheral. See, Edith T. Penrose, The Economics of the International Patent System, Baltimore: John Hopkins, 1951; Helge E. Grundmann, “Foreign Patent Monopolies in Developing Countries: An Empirical Analysis”, 12 J. Dev. Stud. 186 (1976); A. Samuel Oddi, “The International Patent System and Third World Development: Reality or Myth?”, 1987 Duke L.J. 831 (1987); P.S. Sangal & Kishore Singh eds., Indian Patent System and Paris Convention: Legal Perspectives., Delhi: Ashoka Printers, 1987; A. Endeshaw, Intellectual Property Policy for Non-Industrial Countries, Dartmouth, 1996; and Keith E. Maskus and Jerome H. Reichman, “The Globalisation Of Private Knowledge Goods And The Privatisation Of Global Public Goods” 7 Journal of International Economic Law 279, June 2004.

3 See, generally, Paul C.B. Liu, “ U.S. Industry's Influence on Intellectual Property Negotiations and Special 301 Actions”, 13 UCLA Pacific Basin Law Journal 87, Fall, 1994.

4 See the National Trade Estimate Report on Foreign Trade Barriers prepared by the Office of the United States Trade Representative for the various years at http://www.ustr.gov/reports/nte.

5 See, [European Commission] “ Survey on enforcement of intellectual property rights in third countries, July 2003”; available at http://europa.eu.int/comm/trade/issues/sectoral/intell_property/survey_en.htm. The survey was viewed by the EC as “a diagnostic allowing DG Trade, and the Commission services to act more efficiently and to develop a clear strategy to tackle the growing problems caused by violations of IPR and by the deficient enforcement of such rights in third countries.” Ibid.

6 [Ministry of Economy, Trade and Industry, Japan] The Report of the Task Force on Industrial Competitiveness and Intellectual Property Policy, June 5, 2002, (available at http://www.jpo.go.jp/). The same ministry states that “Japan has been approaching countries and regions where counterfeit infringement is grave by asking them to improve the situation. Japan has helped developing countries to enrich their intellectual property systems by such means as cooperation in training for intellectual property-related human resources…” Ibid.

7 Thus Indonesia and the Philippines were issued with such ‘Action Plans’ in May and August 2002, respectively. See, [USTR], 2003 National Trade Estimate Report on Foreign Trade Barriers; available at http://www.ustr.gov/reports/nte/2003/index.htm





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JILT 2006 (1)

Contents
Insititutional Issues
The Role of Intellectual Property in General
Other Refereed Articles