The History of International Intellectual Property and Development

Olwan, Rami M.

doi:10.1007/978-3-642-27907-2_2

Rami M. Olwan²

2429 Accesses

Abstract

Having examined the meaning of development, Part I considers the theories of IP as they relate to development. This chapter examines the history of the international IP system from the perspective of development, drawing conclusions and lessons for the future. It shows the divergent approaches of developed and developing countries towards IP and how developing countries consistently, but unsuccessfully, sought changes to the international IP system. The chapter demonstrates that there is no evidence to show that the development of developing countries has been promoted by the adoption of IP systems and that, to the contrary, many countries have developed even though they have no, or weak, IP systems. The chapter provides some suggestions for consideration by developing countries and serves as a foundation for subsequent chapters that require a degree of familiarity with the stages in the development of the international IP system.

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Notes

1.
Roberto Verzola, ‘Pegging the World’s Biggest’ (1997) 12 (2) Earth Island Journal 41.
2.
Irving Kristol, cited in Alan Story, ‘A2K the Berne Appendix’ on A2K (29 September 2009) <http://lists.essential.org/pipermail/a2k/2009-September/004954.html>.
3.
See Peter Drahos, The Universality of Intellectual Property Rights: Origins and Development, WIPO, 8 <http://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/drahos.pdf>.
4.
On the historical development of the international IP system, see the following:
Silke V. Lewinski, International Copyright Law and Policy (Oxford University, 2008) 13-32; Paul Goldstein, International Copyright Principles, Law and Practice (Oxford University, 2001) 53; S. M. Stewart, International Copyright and Neighbouring Rights (Butterworths, 2nd, 1989); Zorina Khan, Intellectual Property and Economic Development: Lessons from American and European History (September 2002) Commission on Intellectual Property Rights <http://www.iprcommission.org/papers/pdfs/study_papers/sp1a_khan_study.pdf>; John Barton et al., Integrating Intellectual Property Rights and Development Policy (September 2002) Commission on Intellectual Property Rights (CIPR) <http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf>; Alan Story, ‘Burn Burne, Why the Leading International Copyright Convention Must Be Repealed’ (2003) 40 Houston Law Review 763, 792; Ruth L. Gana (Okediji), ‘The Myth of Development, the Progress of Rights: Human Rights to Intellectual Property and Development’ (1996) 18 Law and Policy Journal 315, 319-328; Christopher May and Susan K. Sell, Intellectual Property—A Critical History (Lynne Rienner, 2006) chs 3-6; Peter Burger, ‘The Berne Convention: Its History and Its Key Role in the Future’(1988) 3 Journal of Law and Technology 1; Roberto Garza Barbosa, ‘Revisiting International Copyright Law’ (2007) 8 Barry Law Review 43, 43-80; Susan K. Sell, Power and Ideas—North South Politics of Intellectual Property and Antitrust (New York University, 1998), ch 4; Christopher May, The Global Political Economy of Intellectual Property Rights (Routledge, 2nd ed, 2010) ch 2; Henry C. Mitchell, The Intellectual Property Commons—Toward and Ecology of Intellectual Property (Lexington Books, 2005), chs 5-6; Anne Fitzgerald and Brian Fitzgerald, Intellectual Property in Principle (LBC Thomson, 2004) 1-26, 82-84; Benjamin Kaplin, An Unhurried View of Copyright (Columbia University, 1967) ch 1; L Ray Patterson ‘Free Speech, Copyright, and Fair Use’ (1987) 40 (1) Vanderbilt Law Review 1; David Hindman, ‘The Effect of Intellectual Property Regimes on Foreign Investments in Developing Economies’ (2006) 23 (2) Arizona Journal of International & Comparative Law 467; David Saunders, Authorship and Copyright (Routledge, 1992), chs 2-6; Siva Vaidhyanathan, Copyrights and Copywrongs, the Rise of Intellectual Property and How It Threatens Creativity (New York University, 2001), chs 1-3; Layman Ray Patterson, Copyright in Historical Perspective (Vanderbilt University, 1968); Isabella Alexander, Copyright Law and the Public Interest in the Nineteenth Century (Hart Publishing, 2010); Benedict Atkinson, The True History of Copyright—The Australian Experience 1905-2005 (Sydney University, 2007), ch 14; Ronan Deazley, Rethinking Copyright (Edward Elgar, 2006), chs 1-3.
5.
Peter Drahos, ‘Negotiating Intellectual Property Rights’ in Peter Drahos and Ruth Mayne (eds), Global Intellectual Property—Access to Knowledge and Development (Palgrave Macmillan, 2002) 166.
6.
Ibid.
7.
Pedro Roffe and Gina Vea, ‘The WIPO Development Agenda in an Historical and Political Context’ in Neil Weinstock Netanel (ed), The Development Agenda: Global Intellectual Property and Developing Countries (Oxford University, 2008) 83.
8.
Paris Convention for the Protection of Industrial Property, as last revised at Stockholm, opened for signature on 14 July 1967, 828 UNTS 305 (entered into force 26 April or 19 May 1970) <http://www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html> (Paris Convention); WIPO, WIPO Intellectual Property Handbook: Policy, Law and Use, ch 5 <http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch5.pdf#paris>.
9.
Paris Convention, above n 8, arts 4-11.
10.
Ellen P. Winner and Arrow W. Denberg, International Trademark Treaties (Oceana Publications, 2004) 48; Jon O Nelson, International Patent Treaties (Oceana Publications, 2007) 16.
11.
Paris Convention, above n 8, arts 4, 4bis, 4ter, 4quarter, 5, 5bis, 5ter, 5quarter.
12.
Ibid, arts 6, 6ter, 6quater, 6quinquies, 6sexies, 6septies, 7, and 7bis.
13.
Ibid, art 5quinquies.
14.
Ibid, art 1.
15.
Ibid, art 8.
16.
Ibid, arts 1 (2), 10 and 10bis.
17.
Ibid, art 10bis.
18.
Withdrawn from the Paris Convention in 1886. See Roffe and Vea, above n 7, 83, citing Surendra J. Patel, ‘The Patent System and the Third World’ (1974) 2 (9) World Development (Special Issue on Patents), 4.
19.
Withdrawn from the Paris Convention in 1895. Ibid.
20.
Withdrawn from the Paris Convention in 1887. Ibid.
21.
The original countries from Europe that signed the Paris Convention were Belgium, France, Great Britain, Italy, the Netherlands, Portugal, Serbia, Spain, and Switzerland. Ibid.
22.
Peter K. Yu, ‘The International Intellectual Property Regime Complex: International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia’ (2007) Michigan State Law Review 1, 4; Peter Drahos, An Alternative for the Global Regulation of Intellectual Property Rights, Working Paper October 2005, The Australian National University, Centre for Governance of Knowledge and Development, 9 <https://www.anu.edu.au/fellows/pdrahos/articles/pdfs/2005analternativeframework.pdf>.
23.
Carolyn Deere, Developing Countries Perspectives on Intellectual Property in the WTO: Setting the Pre-TRIPS Context, SSRN, 1-26 (1) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1405430>; Drahos, above n 22, 9, 21.
24.
Deere, above n 23, 1.
25.
Ibid.
26.
Ruth L. Okediji, ‘The International Relations of Intellectual Property: Narratives of Developing Country Participation in the Global Intellectual Property System’ (2003) 7 Singapore Journal of International and Comparative Law 315, 324-325, cited in Yu, above n 22, 1, 4-5.
27.
The ‘colonial clause’ is a particular clause in an international convention that extends the application of the convention to the dependent territories of contracting states. There are three forms of that clause: 1) an automatic application of the convention to the dependent territories, 2) optional application of the convention to the dependent territories, and 3) optional application of the convention to the dependent territories. The general rule is that the convention applies to all territories of contracting parties, including their dependent territories, unless there is an express or implied provision to the contrary that was agreed upon by the parties to the convention. See Yuen-Li Liang, ‘Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments’ (1951) 45 (1) The American Journal of International Law, 108-128 (108).
28.
Peter K.Yu, ‘Dean’s Lecture Series: A Tale of Two Development Agendas’ (2009) 35 Ohio Northern University Law Review 466, 470.
29.
Developing countries were particularly concerned that

The international patent system was unbalanced in favour of developed countries and also questioned the purported links between stronger [IP] protection and increased domestic innovation, noting that even where patents were granted in their countries, ‘a very small number were actually used in domestic production’. In addition, they contended that the monopoly IP rights frustrated competition and made many technologies unaffordable in their markets.

See Deere, above n 23, 7.
30.
On the Brazilian activist role on behalf of developing countries, see Cícero Gontijo, Changing the Patent System from the Paris Convention to the TRIPs Agreement, Global Issue Paper No 26 (December 2005) FDCL, 18 <http://www.fdcl-berlin.de/fileadmin/fdcl/Publikationen/GIP_Gontijo-Patente.pdf>; Andréa Koury Menescal, ‘Changing WIPO's Ways? The 2004 Development Agenda in Historical Perspective’ (2006) 8 (6) Journal of World Intellectual Property 761, 765; Mark A. Franz, ‘A Message to Verity: Don’t Let the U.N. Undermine Patents’ (1988) 85 Backgrounder Update; Ruth L Okediji, ‘History Lessons for the WIPO Development Agenda’ in Neil Weinstock Netanel, The Development Agenda: Global Intellectual Property and Developing Countries (Oxford University, 2008) 143; Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law (Edward Elgar, 2008) 274; Pedro Roffe and Gina Vea, ‘The WIPO Development Agenda in an Historical and Political Context’ in Neil Weinstock Netanel, The Development Agenda: Global Intellectual Property and Developing Countries (Oxford University, 2008) 95; Peter K. Yu, ‘Dean’s Lecture Series: A Tale of Two Development Agendas’ (2009) 35 Ohio Northern University Law Review 465-573, 449; Carolyn Deere, Developing Countries Perspectives on Intellectual Property in the WTO: Setting the Pre-TRIPs Context, SSRN, 8 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1405430>; Paul S. Haar, ‘Revision of the Paris Convention: A Realignment of Private and Public Interests in the International Patent System’ (1982) 8 Brooklyn Journal of International Law 84.
31.
BIRPI (later WIPO) reacted promptly to the Brazilian call when its Director ‘immediately despatched a letter to the Secretary-General of the UN drawing his attention to the interest of the International Bureau in this Resolution and offering any needed help’. See (1962) Industrial Property, 40, cited in Menescal, above n 30, 768.
32.
UNCTAD, The Role of the Patent System in the Transfer of Technology to Developing Countries, UNCTAD/ TD/BC.11/19/Rev.1, UNCTAD, 1975, 35.
33.
In addition, the report should contain:

…b) A survey of patent legislation in selected developed and under developed countries, with primary emphasis on the treatment given to foreign patents; c) An analysis of the characteristics of the patent legislation of under-developed countries in the light of economic development objectives, taking into account the need for rapid absorption of new products and technology and the rise of the productivity level of their economies.

Ibid; Carolyn Deere, the Implementation Game: The TRIPS Agreement and the Global Politics Intellectual Property (Oxford University, 2008) 44.
34.
The main findings of the Report were the following:

In fact, as pointed out in the report, the problems arising in connection with the transfer of technology to developing countries go much beyond the operation of the national patent system or the conduct of international patent relations, so that a conference such as that contemplated in the resolution could only deal with parts of the issues. More could be done through the combination of appropriate legislative and administrative measures at the national level with action to curb restrictive business practices in international licensing agreements, and the provision of technical and financial assistance to developing countries along the line discussed in the report.

UNCTAD, above n 32; Roffe and Vea, above n 7, 96.
35.
Including the Conference on Science and Technology, which was held in Brasilia, Brazil, in 1972. It was of the opinion that:

IP regimes ‘have become inadequate and have been exploited by technology exporters to impost consumption patterns and obtain production, distribution and trade privileges.’ It proposed the revision of national regimes and inter-American treaties on patents and trademarks to assist in promoting social and economic development objectives.

See Roffe and Vea, above n 7, 97.
36.
Deere, above n 33, 44.
37.
‘Developing countries also called for a UN Code of Conduct on Transnational Corporation (TNCs) to better regulate the monopoly power of transnational corporations.’ See Deere, above n 23, 45.
38.
On the International Code of Conduct on the Transfer of Technology, see Sell, above n 4, 79-105; Yu, above n 28, 492-507.
39.
The resolution, in [10], called for:

[A] study with a view to bringing up to date the report prepared by the Secretary-General of the United Nations on the role of patents in the transfer of technology to the developing countries and to devote special consideration in this study to the role of international patent systems in such transfers, with a view to providing a better understanding of this role in the context of a future revision of the system.

UNCTAD, above n 32, 35; Roffe and Vea, above n 7, 97.
40.
UNCTAD, above n 32, 64.
41.
See Guy Tritton (ed), Intellectual Property in Europe (Sweet & Maxwell, 3rd ed, 2008) 64; Drahos, above n 3, 8.
42.
Susan K. Sell, ‘Intellectual Property as a Trade Issue: From the Paris Convention to GATT’ (1989) 13 (4) Legal Studies Forum 407, 409-410.
43.
Ibid.
44.
Article 5 of the Paris Convention today relates to failure to work, insufficient working and compulsory licenses of patents. See art 5 of the Paris Convention, above n 8. On negotiating of art 5 of the Paris Convention between developing and developed countries, see Sell, above n 4, 119-130.
45.
Article 5A of the Paris Convention today relates to compulsory licenses. See art 5A of the Paris Convention, above n 8.
46.
Subrata Roy Chowdhury, Erik Denters, P.J. I.M. de Waart, The Right of Development in International Law (Martinus Nijhoff, 1992) 300.
47.
Ibid.
48.
Roffe and Vea, above n 7, 86-91; 101.
49.
J.H. Reichman, ‘Intellectual Property in International Trade: Opportunities and Risks of a GATT Connection’ (1989) 22 Vanderbilt Journal of Transnational Law 750, 759.
50.
United States General Accounting Office, Strengthening Worldwide Protection of Intellectual Property (April 1987), 267-277 <http://archive.gao.gov/d2t4/132699.pdf>.
51.
Petya Totcharova, UNESCO Copyright Activities, Asia Pacific Cultural Centre for UNESCO <http://www.accu.or.jp/appreb/10copyr/pdf_ws0509/2_2_unesco.pdf>.
52.
Lewinski, above n 4, 30.
53.
Ibid.
54.
Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (Longman, 1987) 592. See also Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighbouring Rights—The Berne Convention and Beyond (Oxford University, 2nd ed, 2006) vol 2, 879-963.
55.
Deere, above n 23, 1.
56.
See Ruth L Okediji, ‘Africa and the Global Intellectual Property System: Beyond the Agency Model’ in Abdulqawi A Yusuf, (2004) 12 African Yearbook of International Law (2004) 207, 217; Drahos, above n 22, 9; Ricketson, above n 54, 593.
57.
These colonies include India, Pakistan, Brazil, Kenya, Egypt, Ghana, and many others.
58.
Okediji, above n 56, 217.
59.
Ibid.
60.
Ibid 219.
61.
Berne Convention for the Protection of Literary and Artistic Works (as amended), opened for signature 9 September 1886, S. Treaty Document No. 99-27 (1986) (Berne Convention) <http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html>; Professor Peter Yu’s website, House Report of the Berne Convention Implementation Act of 1988, H.R. Rep. No. 100-609 (1988) <http://www.peteryu.com/intip/bciahr.pdf>.
62.
Ricketson, above n 54, 594; Yu, above n 28, 470.
63.
India is an important ‘developing country’ that influenced the discussions of how the international copyright system should be structured, and it only joined the Berne Convention when the UK was admitted as a member. Professor Sam Ricketson noted that ‘India expressed its concerns about ‘the high prices and frequent unavailability of [copyright] works from the developed countries’ and strongly advocated the need for special and differential treatment that would ‘allow for the freer circulation of works in developing countries’. See Ricketson, above n 54, 596. Yu, above n 28, 477.
64.
Ricketson, above n 54, 596, 606.
65.
Ndene Ndiaye, ‘The Berne Convention and Developing Countries’ (1986-1987) 11 Columbia Journal of Law and the Arts 47; Ricketson, above n 54, 596.
66.
Ricketson, above n 54, 596.
67.
Irwin A. Olian, ‘International Copyright and the Needs of Developing Countries: The Awakening at Stockholm and Paris’ (1974) 7 (2) Cornell International Law Journal 98; Okediji, above n 56, 239-240.
68.
Okediji, above n 56, 239-240.
69.
Anne Mira Guha, Charles F. Johnson’s Timeline of the Origins of the 1967 Stockholm Protocol for Developing Countries (18 October 2010) Knowledge Ecology International http://keionline.org/node/983>. India also discussed adding special provisions in the Draft Model Copyright Law concerning folklore. See Marc Perman, ‘From ‘Folklore’ to ‘Knowledge’ in Global Governance in Mario Biagioli, Peter Jaszi, and Martha Woodmansee (eds), Making and Unmaking of Intellectual Property (University of Chicago, 2011) 115, 116-117.
70.
Ndiaye, above n 65, 48; Kelsey Martin Mott, ‘The Relationship between the Berne Convention and the Universal Copyright Convention’ (1966-1967) 11 Patent Trademarks and Copyright Journal 306.
71.
The Universal Copyright Convention (UCC) was created in Geneva in 1952 under the auspices of UNESCO to provide an alternative multilateral convention to Berne. It was later revised in Paris in 1971. See Universal Copyright Convention as revised in Paris, opened for signature 24 July 1971, 943 UNTS 178 (entered into force on 10 July 1974) <http://portal.unesco.org/en/ev.php-URL_ID=15241&URL_DO=DO_TOPIC&URL_SECTION=201.html>. See also Melville B. Nimmer and David Nimmer, Nimmer on Copyright, vol 17 (Matthew Bender, 1976) 10-11.
72.
Olian, above n 67, 97. See also, Rickeston, above n 54, 598; Okediji, above n 56, 240.
73.
Olian, above n 67, 97; J.A.L Sterling, World Copyright Law (Sweet and Maxwell, 2003) 21-22.
74.
Burger, above n 4, 38-39.
75.
The other purposes of the Stockholm Revision were to cope with the technological developments that were taking place and to introduce administrative amendments that would make the Berne Convention more effective in practice: WIPO, above n 8, ch 5.
76.
Okediji, above n 56, 239-240.
77.
Professor Sam Ricketson has identified four problems with the Protocol from the perspective of developed countries:

[T]he Protocol embodied too many concessions in favour of the developing countries. Four particular areas of concern can be identified: the lack of any guarantee that authors would be paid in case of use for ‘teaching, scholarship and research’ and the problems that might arise with respect to transmittal of compensation in case of other reservations; the provisions allowing export of copies to other developing countries, the inadequate definition of a developing country, and the lack of any direct incentive to developing countries to improve the level of protection beyond that offered by the Protocol.

Ricketson, above n 54, 621-622. For a criticism of the Protocol, especially from developed countries, see Yu, above n 28, 478; Burger, above n 4, 38-39; Olian, above n 67, 104.
78.
These countries include Canada, Denmark, Finland, West Germany, Israel, Spain, Sweden, Switzerland, and the UK.
79.
Ricketson, above n 54, 622; Yu, above n 28, 481-482.
80.
For a summary of the main recommendations that were agreed on in Washington, see Rickeston, above n 54, 629.
81.
Ibid 628-629.
82.
Olian, above n 67, 104.
83.
Ibid.
84.
See Appendix A.
85.
See Appendix A.
86.
See Appendix A.
87.
See Appendix A.
88.
See Appendix B.
89.
See Appendix B. See also Olian, above n 67, 103; Yu, above n 28, 478; WIPO, Introduction to Intellectual Property, Theory and Practice (Kluwer Law International, 1997) 385-394; James Love, Berne Convention Appendix regarding Special Provisions regarding Developing Countries (18 October 2010) Knowledge Ecology International <http://keionline.org/node/984>.
90.
See Appendix B.
91.
See Appendix B.
92.
Calestous Juma, Intellectual Property Rights and Globalization: Implications for Developing Countries, Center for International Development at Harvard University, 5 <http://www.cid.harvard.edu/archive/biotech/papers/discuss4.pdf>; Burger, above n 4, 40.
93.
Olian, above n 67, 107.
94.
These countries include the following: Republic of Yemen, Samoa, Democratic Socialist Republic of Sri Lanka, Syrian Arab Republic, Republic of Uzbekistan, Socialist Republic of Vietnam, Kingdom of Thailand, Republic of Cuba, Mongolia, United Arab Emirates (UAE), Republic of the Philippines, People’s Republic of Bangladesh, Sultanate of Oman, Jordan, and Democratic People’s Republic of Korea.
See WIPO, Berne Members <http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15>; Manon Ress, More on Countries That Have Availed Themselves of the Berne Appendix? (28 September 2009) <http://lists.essential.org/pipermail/a2k/2009-September/004950.html>; Okediji, above n 56, 240.
95.
Any developing country that avails itself of the Berne Appendix must renew its declaration every ten years; otherwise, it will lose the benefits. See art 1 of Appendix B.
96.
Okediji, above n 56, 240; Rickeston, above n 54, 663-664; Story, above n 4, 792; Yu, above n 28, 481-482; James W. Peters, Toward Negotiating a Remedy to Copyright Piracy in Singapore (1986) 7 Northwestern Journal of International Law & Business 561, 585-589. Professor Margret Chon is of the opinion that there is a pressing need to reform the licensing provisions of the Berne Appendix in order to provide access to materials for developing countries; see Margret Chon, ‘Intellectual Property and the Development Divide’ (2006) 27 Cardozo Law Review 2821, 2835. See also, for a recent study on the subject, Alberto Cerda Silva, ‘Beyond the Unrealistic Solution for Development Provided by the Appendix of the Berne Convention on Copyright’ (2012) 4 (1) PIJIP Research Paper Series <http://digitalcommons.wcl.american.edu/research/30/>.
97.
Yu, above n 28, 477. See also, Philip G. Altbach, ‘The Subtle Inequalities of Copyright’ (1997) 31 (2), Copyright Bulletin, 9 <http://unesdoc.unesco.org/images/0011/001107/110771Eb.pdf>; Philip G. Albatch (ed), Copyright and Development: Inequality in the Information Age (Bellagio, 1995).
98.
Olian, above n 67, 110.
99.
Christopher May, ‘The Pre-History and Establishment of the WIPO’ (2009) (1) The WIPO Journal 20 <http://www.wipo.int/about-wipo/en/pdf/wipo_journal.pdf>.
100.
Ibid.
101.
Ibid 22.
102.
Arpad Bogsch, ‘The First Twenty-Five Years of the World Intellectual Property Organization’ (1992) 28, cited in May, above n 99, 23.
103.
Menescal, above n 30, 775.
104.
John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University, 2000) 81; Deere, above n 23, 1-26; Edith Penrose, ‘International Patenting and the Less-Developed Countries’ (1973) 83 (331) The Economic Journal 768,780 <http://www.jstor.org/stable/pdfplus/2230670.pdf >.
105.
WIPO, Introduction to the Concept of Intellectual Property, 3 <http://www.wipo.int/about-ip/en/iprm/pdf/ch1.pdf>.
106.
Ibid 4.
107.
Article 1 of the Agreement between the UN and WIPO provides that:

The United Nations recognizes the World Intellectual Property Organization (hereinafter called the ‘Organization’) as a specialized agency and as being responsible for taking appropriate action in accordance with its basic instrument, treaties and agreements administered by it, inter alia, for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs, particularly the United Nations Conference on Trade and Development, the United Nations Development Program and the United Nations Industrial Development Organization, as well as of the United Nations Educational, Scientific and Cultural Organization and of other agencies within the United Nations system.

See Agreement between the United Nations and the World Intellectual Property Organization (entered into force on 17 December 1974) <http://www.wipo.int/treaties/en/agreement/> (Agreement between the UN and WIPO).
108.
WIPO agreed to co-operate with the United Nations Conference on Trade and Development, the United Nations Development Programme, and the United Nations Industrial Development Organization, as well as other agencies. For more details, see Yu, above n 28, 490.
109.
Article 10 of the Agreement between the UN and WIPO provides that:

The Organization agrees to co-operate within the field of its competence with the United Nations and its organs, particularly the United Nations Conference on Trade and Development, the United Nations Development Programme and the United Nations Industrial Development Organization, as well as the agencies within the United Nations system, in promoting and facilitating the transfer of technology to developing countries in such a manner as to assist these countries in attaining their objectives in the fields of science and technology and trade and development.

See Agreement between the UN and WIPO, above, n 107.
110.
Arpad Bogsch, the former WIPO Director, mentioned the benefits of approving WIPO as a specialised UN agency as follows:

(i) [T]he fact that dealing with intellectual property was the prerogative and the task of WIPO would receive worldwide recognition, (ii) WIPO would have more or less the same members as the United Nations, and in particular, many developing countries would join WIPO (only very few of them belonged to BIRPI), (iii) the governments of member States would be liberated from having to deal with the fixing of salaries, other working conditions and pensions of the staff, since salaries and pensions would automatically follow the so-called ‘common system’ of the United Nations and its specialized agencies.

Arpad Bosgsch, ‘Brief History of the First Twenty Years of the Intellectual Property Organisation’ (1992) 18-21, cited in Yu, above n 28, 458, 486.
111.
Debora Halbert, What if WIPO Never Existed? (9 July 2009) Copysouth <http://www.copysouth.org/portal/node/12>; Yu, above, n 28, 485.
112.
WIPO, ‘Records of the Intellectual Property Conference of Stockholm’ from 11 June to 14 July 1967’ (Geneva: WIPO, 1967) 830, cited in May, above n 99, 23.
113.
Article 3 of WIPO provides that its objectives are

(i) [T]o promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization; (ii) to ensure administrative cooperation among the Unions.

See Convention Establishing the World Intellectual Property Organization, opened for signature on 14 July 1967, 828 UNTS 3 (entered into force on 26 April 1970) <http://www.wipo.int/treaties/en/convention/trtdocs_wo029.html#P68_3059> (WIPO Convention); WIPO, above n 105, 5.
114.
WIPO Convention, above n 113, art 3.
115.
May, above n 99, 25; see also WIPO, WIPO’s Legal and Technical Assistance to Developing Countries for the Implications of the TRIPS Agreement <http://www.wipo.int/edocs/mdocs/mdocs/en/pcipd_1/pcipd_1_3.pdf>.
116.
Deere, above n 23, 1.
117.
See WIPO’s page <http://www.wipo.int/members/en/>.
118.
WIPO, Member States <http://www.wipo.int/members/en/>.
119.
Okediji, above n 30, 143.
120.
Deere, above n 33, 170; Katie Lula, ‘Neither Here nor There but Fair: Finding an International Copyright System between East and West’ (1996) 8 Asian-Pacific Law and Policy Journal 96, 131; A. Samuel Oddi, ‘The International Patent System and Third World Development: Reality or Myth?’ (1987) 5 (5) Duke University Law Journal 831, 854.
121.
See Kamil Idris, Intellectual Property—A Power Tool for Economic Growth, WIPO Publication Number 888.1 (June 2003) WIPO <http://www.wipo.int/freepublications/en/intproperty/888/wipo_pub_888_1.pdf>; Kamil Idris and Hisamitsu Arai, The Intellectual Property-Conscious Nation: Mapping the Path from Developing to Developed, WIPO Publication No. 988 (2006); WIPO, The Economics of Intellectual Property (January 2009) <http://www.wipo.int/export/sites/www/ip-development/en/economics/pdf/wo_1012_e.pdf>.
122.
Oddi, above n 120.
123.
Paul Salmon, ‘Globalisation’s Impact on International Trade and Intellectual Property Law: Cooperation between the World Intellectual Property Organisation (WIPO) and the World Trade Organisation (WTO)’ (2003) 17 St John's Journal of Legal Commentary 429, 437.
124.
WIPO, First Session, Geneva, November 25-29/1974, Working Group on Model Law for Developing Countries on Inventions and Know-How, WC/ML/INV/1/3 (10 September 1974) < http://www.wipo.int/mdocsarchives/WG_ML_INV_I_74/WG_ML_INV_I_3_E.pdf >; Suzanne F. Greenberg, ‘The WIPO Model Laws for the Protection of Unpatented Know-How: A Comparative Analysis’ (1985-1986) 3 International Tax and Business Lawyer 52.
125.
François Lefèbvre, WIPO and the Developing World, The Courier ACP-EU No (November-December 2003) European Commission <http://ec.europa.eu/development/body/publications/courier/courier201/pdf/en_024.pdf>.
126.
United States General Accounting Office, above n 50, 24.
127.
WTO, WTO and WIPO Join Forces to Help Developing Countries (Press Release, PRESS/108, 21 July 1998) <http://www.wto.org/english/news_e/pres98_e/pr108_e.htm>.
128.
Lefèbvre, above n 125.
129.
WIPO, Patent Information Services for Developing Countries <http://www.wipo.int/patentscope/en/data/developing_countries.html>.
130.
WIPO, WIPO’s Assistance to Developing Countries in the Field of Electronic Commerce: Progress Report, prepared by the International Bureau (18 May 1999) <www.wipo.int/edocs/mdocs/mdocs/en/pcipd_1/pcipd_1_11.doc>.
131.
Ibid.
132.
See Susan K. Sell, Private Power, Public Law: The Globalisation of Intellectual Property Rights (Cambridge University, 2003) 175.
133.
Consumer Project on Technology (now Knowledge Ecology International), The Geneva Declaration on the Future of the World Intellectual Property Organization (October 2000) <http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf>. See also the Geneva Declaration on the Future of WIPO <http://www.futureofwipo.org/futureofwipodeclaration.pdf>; Michael Blakeney and Getachew Mengistie, ‘Intellectual Property and Economic Development in Sub-Saharan Africa’ (2011) 14 Journal of World Intellectual Property 238, 247.
134.
Debora Halbert investigated whether being a member of WIPO has helped LDCs (mainly Chad and Mali) to gain economic development and spur domestic innovation and foreign investment. She found that WIPO has neither been necessary nor sufficient for economic development and spurring foreign investment or domestic innovation in these countries. See Halbert, above n 111.
135.
L. Danielle Tully, ‘Prospects for Progress: The TRIPS Agreement and Developing Countries after the Doha Conference’ (2003) 26 Boston College International and Comparative Law Review 137, 138.
136.
Deere, above n 33, 46.
137.
Bénédicte Callan, ‘Pirates on the High Seas: The United States and Global Intellectual Property Rights’ (1998) 52-63, cited in Marney L. Cheek, ‘The Limits of Informal Regulatory Cooperation in International Affairs: A Review of the Global Intellectual Property Regime’ (2001) 33 George Washington International Law Review 277, 290. See also Peter Drahos and John Braithwaite, Information Feudalism—Who Owns the Knowledge Economy? (Earthscan, 2002) 19-38.
138.
Braithwaite and Drahos, above n 104, 61.
139.
Margret Chon criticised this model of international IP system and argued that a new system should be put in place. The new system should take into consideration the interests of developing countries, particularly their education under a ‘substantive equality principle’. See Chon, above n 96, 2821-2912; Drahos, above n 5, 164.
140.
Evelyn Su, ‘The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries’ (2004) 23 (1) Houston Journal of International Law 170.
141.
Peter K. Yu, TRIPS and Its Discontents (2006) 10 Marquette Intellectual Property Law Review 369, 383 <http://law.marquette.edu/ip/Yu.pdf>.
142.
Robert Sherwood and Carlos Braga explain that this is essentially an empirical question, and empirical evidence has actually found that having strong IP protection has significant effect on the increase of private investment in developing countries. See also Robert M. Sherwood and Carlos A. Primo Braga, ‘Intellectual Property, Trade, and Economic Development: A Road Map for the FTAA Negotiations’ (1996) The North-South Agenda Papers 21, 2; Michael P. Ryan, Intellectual Property, Trade and Foreign Direct Investment (May 2004) <http://www.wipo.int/edocs/mdocs/arab/en/wipo_reg_ip_amm_04/wipo_reg_ip_amm_04_4.pdf>.
143.
Technology transfer from industrialised countries to developing countries will not materialise by merely having strong IP systems in place. Licensors in developed countries need to take into consideration several factors, including the following: the level of technology, know-how, and R&D available in the country; capital market size; business cultures; local personnel and skills; competition; export control labiality; and other legal and business factors. See for further explanation, Harry Rubin, International Technology Transfer (Kluwer Law International, 1995) 97-152.
144.
See, generally, Evelyn Su, ‘The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries’ (2004) 23 (1) Houston Journal of International Law 199; Robert F. Dale and James K. Huntoon, ‘A Cost-Benefit Study of the Domestic and International Patent Systems’ (1967) 11 The Patent, Trademark and Copyright Res and Edu 351; Kunz-Hallstein and Hans Peter, ‘The Revision of the International System of Patent Protection in the Interest of Developing Countries’ (1979) 10 (6) International Review of Industrial Property and Copyright 649; S. Lall, ‘The Patent System and the Transfer of Technology to Less-Developed Countries’ (1976) 10 Journal of World Trade Law 1, 14; Ituku Elangi Botoy, ‘From the Paris Convention to the TRIPS Agreement: A One Hundred and Twelve Year Transitional Period for the Industrialized Countries’ (2005) 7 (1) Journal of World Intellectual Property 115, 125-126; Franz Mark, ‘A Message to Verity: Don’t Let the UN Undermine Patents’(1988) Backgrounder Update 85; The Federalists Society for Law and Society, ‘Does IP Harm or Help Developing Countries?’ (2007) University of Illinois Journal of Law, Technology and Policy 65, 87; Md Golam Robbani, ‘Trade Related Aspects of Intellectual Property Rights and Least Developed Countries’ (2005) 8 (4) The Journal of World Intellectual Property 565, 567; Susan Sell, Private Power, Public Law, the Globalisation of Intellectual Property Rights (Cambridge University, 2003) chs 4-5; Duncan Matthews, Globalising Intellectual Property Rights—The TRIPS Agreement (Routledge, 2002) 108-116; Alan S. Gutterman, ‘The North-South Debate regarding the Protection of Intellectual Property Rights’ (1993) 28 Wake Forest Law Review, 89-139, 118-119; Michael P. Ryan, Knowledge-Economy Elites, the International Law of Intellectual Property and Trade and Economic Development’ (2002) 10 Cardozo International and Comparative Law Journal, 271-303; Robert M. Sherwood, Intellectual Property and Economic Development (Westview, 1990); Eric Garduño and Frank Pietrucha, ‘Intellectual Property Rights in the Arab World’ (Winter/Spring, 2003) Georgetown Journal of International Affairs < http://www12.georgetown.edu/sfs/publications/journal/Issues/ws03/gardunolocked.pdf >; Jean Raymond Homere, ‘Intellectual Property Rights Can Help Stimulate the Economic Development of Least Developed Countries’ (2004) 27 (2) Columbia Journal of Law and Arts 277, 286-288.
145.
The Federal Reserve Bank of San Francisco (FRBSF) Economic Letter, Can International Patent Protection Help a Developing Country Grow (14 May 2004) <http://www.frbsf.org/publications/economics/letter/2004/el2004-11.pdf>.
146.
Professor Ruth L. Gana (Okediji) believes that it is unrealistic to think that technology transfer alone will salvage the process of development in developing countries. There is a wide range of changes that must be taken in developing countries to achieve development, including political, social, and economic changes. As for technology, Professor Okediji notes that it is not a panacea for underdevelopment. Like all other resources, its potential is dependent on the existence of a carefully planned and stable socio-economic environment. See Okediji, above n 4, 315, 335, 341.
147.
Edith Penrose argues that ‘[n]on-industrialized states do not derive any direct benefit from granting patents for inventions that have already been patented and exploited abroad’. See Edith Penrose, (1974), cited in Gontijo, above n 30, 1.
148.
Su, above n 140, 200.
149.
Cheek, above 137, 281; Lawrence Lessig, ‘Keynote: The International Society Symposia’ (2004) 24 (1) Loyola Los Angeles Entertainment Law Review; Sell, above n 132, 6, ch 3.
150.
See, generally, Lawrence Lessig, ‘Keynote: The International Society Symposia’ (2004) 24 (1) Loyola Los Angeles Entertainment Law Review; Susan Sell, Private Power, Public Law, the Globalisation of Intellectual Property Rights (2003) 6, ch 3; Lawrence Lessig, A Taste of Our Own Poison: A Modest Proposal: Hold Hollywood Hostage Till We Kill Farm Subsidies, (2004) Issue 12.01 Tana Pistorius <http://www.wired.com/wired/archive/12.01/view.html?pg=5>; Wired Pretorius, ‘TRIPS and Developing Countries: How Level Is the Playing Field?’ in Peter Drahos and Ruth Mayne, Global Intellectual Property Rights: Knowledge, Access and Development (Palgrave Macmillan, 2002) 188; Ruth L Gana (Okediji), ‘The Myth of Development, the Progress of Rights: Human Rights to Intellectual Property and Development’ (1996) 18 Law and Policy Journal 315; Melville B. Nimmer and David Nimmer, Nimmer on Copyright, vol 1 (Matthew Bender, 1976), 1-16; Siva Vaidhyanathan, Copyright and Copywrongs —The Rise of Intellectual Property and How It Threatens Creativity (New York University, 2001) ch 2, 35-80; Benedict Atkinson, The True History of Copyright—The Australian Experience 1905-2005 (Sydney University, 2007), ch 14, 393 <http://www.austlii.edu.au/au/journals/SydUPLawBk/2007/19.html>; Yong-Shik Lee, Reclaiming Development in the World Trading System (Cambridge University, 2006) 124-125.
151.
The Director of DuPont’s Chemical Department, Elmer Bolton, noted that ‘[b]efore the presence of the internet, American agents cabled from London to the US the entire contents of a book published by the Queen within 24 hours of its release’. Elmer Bolton, cited in Drahos and Braithwaite, above n 137, 33; Susan Sell, ‘Intellectual Property and Antitrust in the Developing World: Crisis, Coercion, and Choice’ in Peter Drahos, Intellectual Property (Ashgate Publishing Company, 1999) 433-467.
152.
Gerhard Joseph, ‘Charles Dickens, International Copyright, and the Discretionary Silence of Martin Chuzzlewit’ (1991-1992) Cardozo Arts and Entertainment Law Journal 523, 523-524.
153.
Ibid. See also William P. Alford, To Steal a Book Is an Elegant Offense (Stanford University, 1995) 5.
154.
Khan, above n 4, 24.
155.
For a complete historical overview of the development of American copyright law, see generally, Paul Goldstein, International Copyright—Principles, Law and Practice (2001) 18; Robert A. Gorman and Jane C. Ginsburg, Copyright Cases and Materials (Foundation, 7th ed, 2006) 1-12; John Barton et al., Integrating Intellectual Property Rights and Development Policy (September 2002) Commission on Intellectual Property Rights (CIPR), 18-19 <http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf>; Melville B. Nimmer and David Nimmer, Nimmer on Copyright, vol 1 (Matthew Bender, 1976), 1-16; Margreth Barrett, Intellectual Property Cases and Materials (West Group, 2nd ed, 1995); John W. Hazard, Copyright Law in Business and Practice (West Group, 1989) 3-4; Donald S. Ghisum and Michael A. Jacobs, United States—World Intellectual Property Guide (1992) 4-7 (on file with author); L Ray Patterson and Stanley W Lindberg, The Nature of Copyright Law—A Law User’s Rights (University of Georgia, 1991) 74-102; Peter Drahos and John Braithwaite, Information Feudalism—Who Owns the Knowledge Economy? (Earthsacan Publications, 2002) 33; Zorina Khan, Intellectual Property and Economic Development: Lessons from American and European History (September 2002) Commission on Intellectual Property Rights (CIPR), 39-40 <http://www.iprcommission.org/papers/pdfs/study_papers/sp1a_khan_study.pdf>.
156.
Section 13 of International Copyright Act of 1870 (Chace Act) provides that:

[T]his act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as [to] its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may, at its pleasure, become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this act may require.

See International Copyright Act of 1870 (Chace Act), enacted by the Fifty-First Congress on 3 March 1891 <http://www.ellenwhite.info/copyright_law_us_1891.htm>. For more information on the Chace Act, see Nimmer and Nimmer, above n 71, vol 4, 13; Barbosa, above n 4, 43-110; Goldstein, above n 4, 18,
157.
Such as notice, registration, and deposit requirements. See Nimmer and Nimmer, above n 71, 13.
158.
One commentator believes that this simply was not the case. Although the law affected the worst case of piracy that was happening in the US, especially for major literary works like that of Charles Dickens, it did not stop piracy in the country. See James L. W. West III, ‘The Chace Act and Anglo-American Literary Relations’ (1992) 45 Studies in Bibliography <http://etext.virginia.edu/etcbin/browse-sb?id=sibv045&images=bsuva/sb/images&data=/texts/english/bibliog/SB&tag=public>.
159.
Khan, above n 4, 44.
160.
Susan Sell, ‘Intellectual Property at a Cross Road: The Use of the Past in Intellectual Property Jurisprudence: Intellectual Property and Public Policy in Historical Perspective: Contestation and Settlement’ (2004) 38 Loyola of Los Angeles Law Entertainment Review 267, 282-283.
161.
Khan, above n 4, 44.
162.
Barton et al., above n 4, 18-19.
163.
Ibid, Ghisum and Jacobs, above n 155, 2-14.
164.
In addition to having appropriate IP laws in place, the US had remarkable judges and legal practitioners who adopted an instrumentalist approach that interpreted the law in ways that favoured economic development. See Khan, above n 4, 24, 54.
165.
Braithwaite and Drahos, above n 104, 61.
166.
In the US, four agencies the share primary responsibilities for international IP rights policy: the State Department (executive branch), the Office of the US Trade Representative (USTR) (executive branch), the Patent and Trademark Office (USPTO) of the Department of Commerce (executive branch), and the Copyright Office of the Library of Congress (legislative branch). See also Cheek, above n 137, 277, 304.
167.
Ibid 303-304.
168.
Ibid.
169.
Ibid 300.
170.
The regular users of the US 301 Section include a list of organisations that aim to lobby for the highest IP protection in developing countries. These include the International Intellectual Property Association (IIPA), American Film Marketing Association, Association of American Publishers, Information Technology Association of America, Motion Picture Association of America, National Music Publishers Association, and Recording Industry of America. See Braithwaite and Drahos, above n 104, 71; Deere, above n 23, 11-12; Sell, above n 151, 439-450; Sell, above n 132, chs 4-5; Susan K. Sell, ‘Intellectual Property as a Trade Issue: From the Paris Convention to GATT’, (1989) 13 (4) Legal Studies Forum 411, 419.
171.
Jerome H. Reichman, ‘Intellectual Property in the Twenty-First Century: Will the Developing Countries Lead or Follow?’ (2009) 46 Houston Law Review 1115, 1177.
172.
This program allows exporters from certain developing countries such as Brazil, Turkey, Thailand, Egypt, the Philippines, and others to enter their goods (wood, stone, agricultural products, etc) to the US market without any tariffs. See Abigail L. Ho, ‘Government Seeks Renewal of U.S. GSP Privileges’, Philippine Daily Inquirer (online), 13 January 2011 <http://business.inquirer.net/money/topstories/view/20110113-314274/Govt-seeks-renewal-of-US-GSP-privileges>.
173.
Reichman, above n 171, 159.
174.
The USTR investigations under Special 301 process can result in one of four outcomes:

First, the USTR may be satisfied with the progress being made in the country under investigation and take no action. Second, a country may be placed on the USTR’s ‘watch list’ which is used ‘as a means of monitoring progress in implementing commitments with regard to the protection of intellectual property rights.’ Third, a country may be placed on the USTR’s ‘priority watch list’ which is comprised of countries in which ‘the lack of adequate and effective intellectual property protection or market access is especially significant for US interests.’ Fourth, the USTR may designate a country as a Priority Foreign Country. It is only this final designation that is mandated by statute.

See Cheek, above n 137, 277, 292, 301-302; Braithwaite and Drahos, above n 104, 62; Drahos, above n 3, 9; Peter Drahos, ‘Bits and BIPs—Bilateralism in Intellectual Property’ (2001) 4 (6) Journal of World Intellectual Property, 791, 793; Peter Drahos, ‘Global Property Rights in Information: The Story of TRIPs at the GATT’ in Peter Drahos, Intellectual Property (Ashgate Publishing Company, 1999) 419-431; Reichman, above n 49, 761; Sell, above n 132, chs 4-5; Sell, above n 4, 130-139.
175.
Trade Act of 1974, 19 USC ch 12 sub 3 § 2415<http://www.law.cornell.edu/uscode/text/19/2415>.
176.
Braithwaite and Drahos, above n 104, 792.
177.
Ibid. The Special 301 process has induced numerous developing countries to change their national laws and policies in relation to IP. Among these countries are Brazil, China, Thailand, Singapore, Korea, Taiwan, and many others. See Myles Geltan, ‘TRIPS and the Future of Section 301: A Comparative Study in Trade Dispute Resolution’ (1996) 34 Columbia Journal of Transitional Law 174; James W. Peters, ‘Toward Negotiating a Remedy to Copyright Piracy in Singapore’ (1986) 7 Northwestern Journal of International Law & Business, 561, 580; Peters, above n 96, 576-580; Alford, above n 153, Taiwan (95-111) and China (112, 123).
178.
Drahos (1999), above n 174, 421-422.
179.
Ibid.
180.
Ibid.
181.
Sell, above n 132, 84.
182.
Pretorius, above n 150, 184.
183.
Ibid.
184.
Sell, above n 151, 436.
185.
Ibid 441; Deere, above n 33, 160.
186.
Pretorius, above n 150, 184; Sell, above n 160, 282-283; Botoy, above n 144, 115, 125; Khan, above n 4, 12. See also Barton et al., above n 4, 18-20.
187.
For a historical introduction of the law of copyright in Europe, see Khan, above n 4, 31-35; John S. McKeown, Fox Canadian Law of Copyright (Carswell, 3rd ed, 2000) 13-32; Sam Ricketson, The Law of Intellectual Property (Sydney Law Book, 1984) 57-77; J.A.L. Sterling, World Copyright Law (Sweet and Maxwell, 2003) 5-24; Kevin Garnett, Jonathan Rayner James, and Gillian Davies, Copinger and Skone James on Copyright (Sweet and Maxwell, 14th ed, 1999) 31-50.
188.
Khan, above n 4, 29.
189.
Gana (Okediji), above n 4, 332; Deere, above n 33, 36.
190.
Deere, above n 23, 12.
191.
Drahos, above n 5, 178.
192.
Ibid; Michael Buton Devine, ‘The Adoption of ECC Regulation 2641/84 on Illicit Commercial Practices with Special Reference to the U.S.A’ (1988) 22 The International Lawyer 1091.
193.
Ibid 1091. See also James R. Atwood, ‘The European Community’s New Measures against Unfair Practices in International Trade: Implications for United States Exporters’ (1985) 19 International Law 361, 361.
194.
Atwood, above 193, 366-367.
195.
Sell, above n 151, 448, and 450.
196.
Gana (Okediji), above n 4, 327.
197.
Ibid.
198.
Hisamitsu Arai, former Vice-Minister for International Affairs, Ministry of International Trade and Industry (MITI) in Japan noted that:

[T]he first JPO Commissioner was Korekiyo Takahashi, who had served as interpreter to Dr Morley, who had come from the United States to help Japan formulate its educational system. Even 120 years ago, Takahashi reports that Morley complained that Japan was a nation of copiers and asserted that patents, trademarks, and copyrights were very important assets in the US.

See Hisamitsu Arai, Intellectual Property Policies for the Twenty-First Century: The Japanese Experience in Wealth Creation (WIPO Publication 2006), 86 <http://www.wipo.int/export/sites/www/freepublications/en/intproperty/834/wipo_pub_834.pdf>.
199.
Christopher Heath (ed), Intellectual Property Law in Asia (Kluwer Law International, 2003) 173; Khan, above n 4, 28.
200.
Hiroyuki Odagiri, A. Gotto, and A. Sunami, ‘IPR and Catch UP Process in Japan’ in Hirouki Odagiri et al. (eds), Intellectual Property Rights, Development and Catch UP (Oxford, 2010) 125.
201.
Graham Dutfield and Uma Suthersanen noted the following example:

[I]n 1960, Texas Instruments filed a patent in Japan on the integrated circuit, arguably one of the most important inventions of the second half of the twentieth century. The Japan Patent Office allowed itself 29 years to grant the patent. By that time Japanese companies, free to read the patent specification 18 months after filing, acquired the technology, improved upon it, and controlled 80% of the U.S. market for computer semiconductor.

See Chalmers A. Johnson, Japan: Who Governs? The Rise of the Developmental State (W.W. Norton & Company, 1995) 74–5, cited in Graham Dutfield and Uma Suthersanen, ‘Harmonisation or Differentiation in Intellectual Property Protection? The Lesson of History’ (2005) 2 (23) Prometheus: Critical Studies in Innovation 131, 136.
202.
See M. Fisher ‘Growth of the Japanese Patent System: A Lesson for Us All?’ (2004) 22 (1) Intellectual Property Quarterly 85, 113, cited in Dutfield and Suthersanen, above n 201, 131, 142.
203.
Arai, above n 198.
204.
Odagiri et al., above n 200, 98.
205.
Ibid 99.
206.
Heath, above n 199, 175.
207.
Masaaki Kotabe, ‘A Comparative Study of U.S. and Japanese Patent Systems’ (1992) 23(1) Journal of International Business Studies 147-168. 1992, cited in Nagesh Kumar, Intellectual Property Rights, Technology and Economic Development: Experiences of Asian Countries (September 2002) Commission on Intellectual Property Rights <http://www.iprcommission.org/papers/pdfs/study_papers/sp1b_kumar_study.pdf>.
208.
Arai, above n 198, 64.
209.
Odagiri et al., above n 200, 122.
210.
Ibid.
211.
Arai, above n 198, 64.
212.
Ibid.
213.
Ruth L. Okediji, ‘Africa and the Global Intellectual Property System: Beyond the Agency Model’ in Abdulqawi A. Yusuf African Yearbook of International Law (2004) 207, 236. See also Evelyn Su, ‘The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries’ (2004) 23 (1) Houston Journal of International Law 200; Douglas F. Greer, ‘The Case against Patent Systems in Less-Developed Countries’ (1973) 8 Journal of International Law and Economics 223; Helge E. Grundmann, ‘Foreign Patent Monopolies in Developing Countries: An Empirical Analysis’ (1976) 12 Journal of Development Studies 186; H. Kornstein and I. Till, ‘A Re-evaluation of the International Patent Convention’ (1947) 12 Law and Contemporary Problems 765, 766; Constantine Vaitsos, ‘Patents Revisited: Their Function in Developing Countries’ (1972) 9 Journal of Development Studies 71, 89-90; A. Samuel Oddi, ‘The International Patent System and Third World Development: Reality or Myth?’ (1987) 5 Duke University Law Journal 831,854; John Barton et al., Integrating Intellectual Property Rights and Development Policy (September 2002) Commission on Intellectual Property Rights (CIPR) <http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf>; Margret Chon, ‘Intellectual Property and the Development Divide’ (2006) 27 Cardozo Law Review, 2821, 2861; Md. Golam Robbani, ‘Trade Related Aspects of Intellectual Property Rights and Least Developed Countries’ (2005) 8 (4) The Journal of World Intellectual Property 565, 568-569; J. H. Reichman, ‘Intellectual Property in International Trade: Opportunities and Risk of GATT Connection’ (1989) 22 (4) Vanderbilt Journal of Transnational Law 747, 761-763; Carlos M. Correa, Trade Related Aspects of Intellectual Property Rights—A Commentary on the TRIPS Agreement (2007), ch 4; Suerie Moon, Does TRIPS Art 66.2 Encourage Technology Transfer to LDCs? An Analysis of the Country Submissions to the TRIPS Council, Brief Number 2 (December 2008) UNCTAD-ICTSD Project on IPRs and Sustainable Development Policy <http://www.iprsonline.org/New%202009/Policy%20Briefs/policy-brief-2.pdf>; Wolfgang E. Siebeck et al. (eds), Strengthening Protection of Intellectual Property in Developing Countries—A Survey of Literature (The World Bank, 1990); Charles E. Walker and Mark A. Bloomfield, Intellectual Property Rights and Capital Formation in the Next Decade (University Press of America, 1988) 57-106; Alan S. Gutterman, ‘The North-South Debate Regarding the Protection of Intellectual Property Rights’ (1993) 28 Wake Forest Law Review, 89-139, (121-125). R. A. Mashelkar, ‘Intellectual Property Rights and the Third World’ (2005) 81 (1) Current Science 955; Jean Raymond Homere, Intellectual Property Rights Can Help Stimulate the Economic Development of Least Developed Countries, (2004) 27 (2) Columbia Journal of Law and Arts 277, 285.
214.
Sell, above n 151, 436.
215.
Maria Julia Olivia, ‘Intellectual Property in the FTAA: Little Opportunity and Much Risk’ (2003) (19) American University International Law Review 45, 53.
216.
In this section, India, Brazil, and China are discussed in terms of developing countries. While their status has changed over the last 10-15 years, at this point of time, they are in their early stages of development. Today, they are acknowledged as leading emerging market economies.
217.
Braithwaite and Drahos, above n 104, 61.
218.
Yu, above n 22, 1, 5.
219.
Deere, above n 33, 42.
220.
Kumar, above n 207.
221.
The Supreme Court Justice of India, Rajagopala Ayyangar, was asked after a lengthy discussion of the costs and benefits of having a patent system for a developing country such as India. He answered:

With all the handicaps which the system involves in its application to under-developed countries, there are no alternatives methods for achieving better results. At the best there is no country in the world that does not adopt the patent system of rewarding investors, whatever differences in detail there might be in the laws of the various countries due to local conditions or historical reasons.

He further noted that:

[T]he precise provisions of the patent law have to be designed with specific reference to the economic conditions of the country, the state of its scientific and technical advance its future needs and other relevant factors so as to minimise if not eliminate the abuses to which a system of patent monopoly is capable of being put.

See Ayyangar, 1959, 18-19, cited in Bhaven N. Sampat, ‘Indian Pharmaceutical and Software’ in Odagiri et al., above, 200, 365.
222.
Roffe and Vea, above n 7, 92.
223.
N Mehrota noted that:

Both the commissions found ample evidence of misuse of patent protection by foreign companies (who owned more than 90% patents in India) and it was clear that many patents were taken by MNCs basically to ensure protected exported markets… [I]t was observed that the country was denied by its own national law the right of getting in many cases, goods even though they were essential for industrial production, or for the health and safety of the community, at cheaper prices available from alternative sources because of patent protections.

N.N. Mehrota, ‘Indian Patent Act, Paris Convention and Self-Reliance’ (1987) Economic and Political Weekly 1461. See also Svedaraman, ‘The New Indian Patent Law’ (1972) 3 The International Review of Industrial Property and Copyright Law 39; Drahos, above n 5, 165.
224.
Drahos, above n 5, 165; Sampat, above n 221, 365.
225.
See the Indian Patent Act of 1970, arts 47, 66, 89, 100, 101, and 102 (related to the protection of public interests). See the website of the Indian Office of the Controller General of Patents, Designs and Trademarks, Indian Patent Act of 1970 <http://ipindia.nic.in/ipr/patent/patact1970-3-99.html>; UNCTAD, above n 32, 56-61.
226.
Mehrota, above n 223, 1461.
227.
The Indian Patent Law, has been hailed by the UN agencies as a model law for other developing countries that want to design specific laws that meet their local conditions. See Drahos above n 5, 165; Mehrota, above n 223, 1461; Kumar, above n 207; World Health Organization (WHO), Public Health, Innovation and Intellectual Property Rights (2006), 83-84 <http://www.who.int/intellectualproperty/documents/thereport/ENPublicHealthReport.pdf>; Kevin Donovan, A Brief History of Intellectual Property in China and India <http://www.techdirt.com/articles/20090530/1620345062.shtml>; Dutfield and Suthersanen, above n 201, 140-141.
228.
Mehrota, above n 223, 1461-1464
229.
For a review of the Indian Patent Act and its amendments, see Alan S Gutterman and Bentley J Anderson, Intellectual Property in Global Markets: A Guide for Foreign Lawyers and Managers (Kluwer Law International, 1997) 379-384; Indian Patent Office, History of Indian Patent System <http://ipindia.nic.in/ipr/PatentHistory.htm>.
230.
Sampat, above n 221, 372.
231.
Deere, above n 23, 4. See also, Roberto Mazzoleni and Luciano Martins Costa Povoa, ‘Accumulation of Technological Capabilities and Economic Development: Did Brazil’s IPR Regime Matter?’ in Odagiri et al., above n 200, 280–311.
232.
Brazil was the fourth country after England, the US, and France to issue an industrial property law. It has drafted its first patent law since 1809 to correspond with its developmental needs and local conditions. See Gontijo, above n 30, 13; Pedro Nicleti Mizukami and Ronaldo Lemos, ‘Limitations and Exceptions to Copyright in the Brazilian Law: A Need for Reform’ in Lea Shaver (ed), Access to Knowledge in Brazil (Bloomsbury, 2009) 67, 70-76 <http://www.law.yale.edu/documents/pdf/ISP/A2KBrazil_bkmk.pdf>. See also Mazzoleni and Povoa, above n 231, 280-311.
233.
Deere, above n 23, 4
234.
Menescal, above n 30,761
235.
Braithwaite and Drahos, above n 104, 79.
236.
Ibid.
237.
Deere, above n 33, 166.
238.
Ibid.
239.
Ibid.
240.
Deli Yang, ‘The Development of Intellectual Property in China’ (2003) 25 World Patent Information 131; Lan Xue and Zheng Liang, ‘Relationship between IPR and Technology Catch-UP: Some Evidence in China’ in Odagiri et al., above n 200, 319. See also Alford, above n 153, 41-42.
241.
Yang, above n 240, 136.
242.
Xue and Liang, above 240, 356.
243.
Ibid 355. Professor Peter Yu adds that ‘the drastically lower production costs, the country’s enormous market, its efficient economic system, and the preferential treatment of foreign investors have all helped to attract FDI in China’. See Peter K. Yu, ‘Intellectual Property, Economic Development, and the China Puzzle’ in Daniel Gervais (ed), Intellectual Property, Trade and Development-Strategies to Optimize Economic Development in a TRIPS-Plus Era (Oxford University, 2007) 182.
244.
Yang, above n 240, 138, Yu, above n 243, 186.
245.
Yu, above n 243, 220
246.
Ibid 213.
247.
Raj Bahala, Trade, Development and Social Justice (Carolina Academic, 2003) 14; Christopher Arup, The World Organisation Knowledge Agreements (Cambridge University, 2nd ed, 2008) 165-179.
248.
UNCTAD, Dispute Settlement World Trade Organisation (2003) <http://www.unctad.org/en/docs/edmmisc232add33_en.pdf>.
249.
Ibid.
250.
See General Agreement on Tariffs and Trade, opened for signature on 30 October 1947, 55 UNTS 187 (entered into force on 1 January 1948) <http://www.wto.org/english/docs_e/legal_e/gatt47.pdf> (GATT); Robert Read, A Summary of the GATT Articles (Lancastor University) <http://www.lancs.ac.uk/staff/ecarar/gatt%20articles.doc>; UNCTAD, above n 248.
251.
Viviana Munoz Tellez, ‘The Changing Global Governance of Intellectual Property Enforcement: New Challenges for Developing Countries’ in Xuan Li and Carlos M. Correa (eds), Intellectual Property and Enforcement (Edward Elgar, 2009) 6.
252.
Ibid.
253.
Forum shifting encompasses three kinds of strategies as follows: moving an agenda from one organisation to another, abandoning an organisation, and pursuing the same agenda in more than one organisation. See Braithwaite and Drahos, above n 104, 564; Denis Borges Barbosa, Margaret Chon, and Andres Moncayo von Hase, ‘Slouching Towards Development in International Intellectual Property’ (2007) 71 Michigan State Law Review 85.
254.
Professor Peter Yu noted the difference between the following:

An ‘intra-regime shift’ reflects a move from one venue to another venue situated within the same regime—for example, from bilateral intellectual property agreements to a multilateral intellectual property convention. By contrast, an ‘inter-regime shift’ reflects a move from one venue to another venue located in an entirely different regime—for example, from the intellectual property regime to the public health or human rights regime.

Yu, above n 22.
255.
Goldstein, above n 4, 53.
256.
Dennis DeConcini ‘Patent Protection Abroad for U.S. Pharmaceuticals’ (1991) 5 World Intellectual Property Report 336, 338, cited in Alan S. Gutterman and Bentley Anderson, ‘Review of Intellectual Property in Global Markets’ (November 1998) European Intellectual Property Law Review 17.
257.
One scholar argues that the linkage between IP and trade did not start in TRIPS Agreement but earlier in the Paris Convention and GATT in 1947. See, Botoy, above n 144, 122. On the linkage of trade and IP, see Barbosa, Chon, and Hase, above n 253, 81-83.
258.
Braithwaite and Drahos, above n 104, 63.
259.
Deere, above n 33, 52.
260.
Tellez, above n 251, 7; Goldstein, above n 4, 53; Drahos (2001), above n 174, 793.
261.
Drahos, above n 5, 166; Pretorius, n 150, 184; Peggy E. Chaudhry and Michael Walsh, ‘Intellectual Property Rights: Changing Levels of Protection under GATT NAFTA and the EU’ (1995) 30 (2) The Columbia Journal of World Business 80, 82. See also Rorden Wilkinson and James Scott, ‘Developing Country Participation in the GATT: A Reassessment’ (2008) 7 (3) World Trade Review 473, 502.
262.
Wilkinson and Scott, above n 261.
263.
Ibid 473-475; Carlos Correa, Review of the TRIPS Agreement Fostering the Transfer of Technology to Developing Countries, Third World Network <http://www.twnside.org.sg/title/foster.htm>; Sell, above n 132, 9.
264.
Professor Ruth L. Gana (Okediji) adds also:

[B]ecause they [developing countries] did not have the political or economic wherewithal to negotiate better terms of the accession to turn the direction of the treaties to reflect their interests. In addition, these concepts were new to most developing countries and their relative lack of experience with these norms would have constituted a major handicap to effectively challenging the premises of the international system.

See Gana (Okediji), above n 4, 333; Deere, above n 33, 52; Drahos (1999), above n 174, 424; Goldstein, above n 4, 53; Drahos (2001), above n 174, 793.
265.
Matthew Turk, ‘The Bargaining and Intellectual Property Treaties: The Case for a Pro-Development International TRIPS but Not TRIPS Plus’ (2010) 42 New York University Journal of International Law and Policies 981.
266.
Jayashree Watal, ‘Developing Countries and the Protection of Intellectual Property Right’ in George A. Bermann and Petros C. Mavroidis, WTO Law and Developing Countries (Cambridge University, 2007) 129, 130-131.
267.
Wilkinson and Scott, above n 261, 503
268.
Ibid. See also, for explanation of the GATT and its history, Lynden Griggs et al., Managers and The Law (Lawbook, 3rd ed, 1999) ch 14.
269.
Sell, above n 132, 175.
270.
Su, above n 140, 183.
271.
Ibid.
272.
Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 (entered into force 1 January 1995, Annex 1C Trade-Related Aspects of Intellectual Property Rights (TRIPS), arts 9-40; Su, above n 140, 184.
273.
TRIPS, above n 272, arts 9-40. See Carlos M Correa, Trade Related Aspects of Intellectual Property Rights—A Commentary on the TRIPS Agreement (Oxford, 2007), chs 5-12; Sol Picciotto, ‘Defending the Public Interest in TRIPS and the WTO’ in Peter Drahos and Ruth Mayne, Global Intellectual Property Rights: Knowledge, Access and Development (Palgrave Macmillan, 2002) 235.
274.
TRIPS, above n 272, arts 63-64; Tully, above n 135, 134.
275.
Correa, above n 263.
276.
Drahos, above n 5, 166; Matthews, above n 144, 29-45.
277.
Correa, above n 263.
278.
Mitsuo Matsushita and Thomas Schoenbaum note that WTO has two kinds of provisions beneficial for developing countries and these are: 1) preferential treatment for developing countries based on the concept of non-reciprocity; and 2) special and differential treatment for developing countries. See Mitsuo Matsushita, Thomas J. Schoenbaum, and Petros C. Mavroidis, The World Trade Organization Law Practice and Policy (Oxford University, 2003) 390.
279.
Article 7 of the TRIPS Agreement provides as follows:

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

TRIPS, above n 272, art 7. See also Daniel Gervais, The TRIPs Agreement—Drafting History and Analysis (Sweet and Maxwell, 2nd ed, 2003) 115-120; Correa, above n 273, 287-294; UNCTAD-ICTSD, Resource Book on TRIPS and Development (Cambridge University, 2005) 118-133.
280.
Article 8 of the TRIPS Agreement provides as follows:
1. 1.
  Subject to the provisions of paragraphs 2, 3 and 4, no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.
2. 2.
  A developing country Member is entitled to delay for a further period of four years the date of application, as defined in paragraph 1, of the provisions of this Agreement other than Articles 3, 4 and 5.
3. 3.
  Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.
4. 4.
  To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of 5 years.
5. 5.
  A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.
TRIPS, above n 272, art 8. See Gervais, above n 279, 120-122; UNCTAD-ICTSD, above n 279, 118-133.
281.
Article 27/A of the TRIPS Agreement provides as follows:
1. 1.
  Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.(5) Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
2. 2.
  Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect order public or morality, including to protect human, animal or plant life or health or to avoid serious US. prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
TRIPS, above n 272, art 24/A. See Gervais, above n 279, 217-234; Correa, above n 273, 287-294; UNCTAD-ICTSD, above n 279, 351-383.
282.
Article 65 of the TRIPS Agreements provides as follows:
1. 1.
  Subject to the provisions of paragraphs 2, 3 and 4, no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.
2. 2.
  A developing country Member is entitled to delay for a further period of four years the date of application, as defined in paragraph1, of the provisions of this Agreement other than Articles 3, 4 and 5.
3. 3.
  Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.
4. 4.
  To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of 5 years.
5. 5.
  A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.
TRIPS, above n 272, art 65.
283.
Article 66 of the TRIPS Agreement provides as follows:
1. 1.
  In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.
2. 2.
  Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.
TRIPS, above n 272, art 66.
284.
See Gervais, above n 279, 346-353; UNCTAD-ICTSD, above n 279, 705-724.
285.
Article 67 of the TRIPS Agreements provides as follows:

In order to facilitate the implementation of this Agreement, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.

TRIPS, above n 272, art 67. See also Gervais, above n 279, 705-724.
286.
Suerie Moon came to the conclusion that there is concrete evidence to support the compliance of developed countries with their obligations. He provided several recommendations to improve the current reporting system. See Moon, above n 213. See also Gervais, above n 279, 730-738.
287.
Cheek, above n 137, 277, 306; Gervais, above n 279, 353-355; UNCTAD-ICTSD, above n 279, 730-738.
288.
See TRIPS, above n 272, arts 1.1, 4, 6, 27 (2), 27 (3a), 27 (3b), 30, 31, 31 bis (1), 37, 65 (1), 65 (2) 65 (3), 65 (4), and 66 (1). See also Alhaj Tejan-Cole, Flexibilities in the TRIPS Agreement and Its Impact on National Intellectual Property Policy (2011) Belize Intellectual Property Office <http://www.belipo.bz/wp-content/uploads/2011/12/TRIPS-FLEXIBILITIES.pdf>. For an explanation of the provisions of the TRIPS Agreement that developing countries could use, see Gervais, above n 279; Chon, above n 96, 2835-2844; Barbosa, Chon, and Hase, above n 253, 92-95; UNCTAD-ICTSD, above n 279.
289.
Matthews, above n 144, 108-122.
290.
Tully, above n 135, 137-138.
291.
Daniel Gervais, TRIPS and Development in Intellectual Property, Trade and Development (Oxford University, 2007) 3-59.
292.
Evelyn Su, ‘The Winners and the Losers: The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Effects on Developing Countries’ (2004) 23 (1) Houston Journal of International Law 184; Carlos Correa, Review of the TRIPS Agreement Fostering the Transfer of Technology to Developing Countries, Third World Network <http://www.twnside.org.sg/title/foster.htm>; Philip G. Altbach, ‘The Subtle Inequalities of Copyright’ (1997) 23 (2) Copyright Bulletin, 7-14 <http://unesdoc.unesco.org/images/0011/001107/110771Eb.pdf>; Calestous Juma, Intellectual Property Rights and Globalization: Implications for Developing Countries, Center for International Development at Harvard University, 2 <http://www.cid.harvard.edu/archive/biotech/papers/discuss4.pdf>; Carlos Correa, ‘Intellectual Property Rights, the WTO and Developing Countries’ (2000) 18-19, cited in Martin Khor, ‘Rethinking Intellectual Property Rights and TRIPS’ in Peter Drahos and Ruth Mayne, Global Intellectual Property Rights: Knowledge Access and Development (Palgrave Macmillan, 2002) 172; Susan Sell, ‘Intellectual Property at a Cross Road: The Use of the Past in Intellectual Property Jurisprudence: Intellectual Property and Public Policy in Historical Perspective: Contestation and Settlement’ (2004) 38 Loyola of Los Angeles Entertainment Law Review 267, 316.
293.
In August 2000, The UN Commission on Human Rights approved a resolution affirming that the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its application, the right to health, the right to food, and the right of self determination. See Picciotto, above n 273, 233.
294.
Juma, above n 92, 2. See also Peter Drahos, ‘Thinking Strategically about Intellectual Property Rights’ (1997) 21 (3) Telecommunications Policy, 201-211 <http://www.anu.edu.au/fellows/pdrahos/articles/pdfs/1997thinkingstratippolicy.pdf>.
295.
From Columbia University, Director of the health institute.
296.
Jeffrey Sachs, Helping the World’s Poorest (14 August 1999) Center for International Development at Harvard University <http://www.cid.harvard.edu/cidinthenews/articles/sf9108.html>.
297.
From Stanford University.
298.
John Barton, ‘Intellectual Property, Biotechnology, and International Trade: Two Examples’, cited in Correa, above n 263.
299.
From Columbia University.
300.
Joseph Stiglitz, ‘Intellectual Property Rights and Wrongs’ Daily Times (LahorePakistan) 16 August 2005 <http://www.dailytimes.com.pk/default.asp?page=story_16-8-2005_pg5_12>.
301.
Khor, above n 292, 203; Correa, above n 263; Botoy, above n 144, 129; Sell, above n 132, 13; Lee, above 150, 123-132.
302.
Carlos Correa, ‘Formulating Effective Pro-Development National Intellectual Property Policies’ in Christopher Bellmann and Graham Dutfield, Trading in Knowledge-Development Perspective in TRIPS, Trade and Sustainability (Earthscan Publications, 2003) 209, 211; John Barton, ‘Integrating IPR Policies in Development Strategies’ in Christopher Bellmann, Graham Dutfield, and Ricardo Melendez-Ortiz, Trading in Knowledge-Development Perspective in TRIPS, Trade and Sustainability (2003) 57-64.
303.
From Vanderbilt University.
304.
Gervais, above n 291, 3, 47, 52. The Commission on Intellectual Property Rights (CIPR) argues that the interests of developing countries are best served ‘by tailoring their intellectual property regimes to their particular economic and social circumstances’; Barton et al., above n 4; Maria Julia Olivia, ‘Intellectual Property in the FTAA: Little Opportunity and Much Risk’ (2003) 19 American University International Law Review 45, 53; Drahos, above n 22, 15; Susan K. Sell, ‘What Role for Humanitarian Intellectual Property? The Globalisation of Intellectual Property Rights’ (2004) 6 Minnesota Journal of Law 191, 210.
305.
Gervais, above n 291, 48.
306.
From Drake University.
307.
Yu, above n 141, 387.
308.
Ibid 375.
309.
Correa, above n 263.
310.
Professor Susan Sell noted that:

[A]lthough the provisions of the TRIPS Agreement is quite promising to developing and LDCs in terms of technology transfer and other issues important to developing countries, there is little practical evidence that developed countries are fulfilling their obligation under the Agreement toward developing countries. There is also little evidence to support that TRIPS would assist developing countries in achieving socio-economic and technological development and furthermore there is no evidence that developing countries are making good on their commitment to open their markets more widely to developing countries.

See, for a full critique of TRIPS, Sell, above n 132, 13, 137.
311.
Professor Carlos Correa also mentioned, rightly, that:

Any future action concerning technology transfer within WTO should recognize the strong linkages existing between the transfer and local technological capacity building, which remains a main responsibility of host countries. The improvement of the conditions for access to and effective use of foreign technologies will require a broad approach beyond the TRIPs Agreement.

Correa, above n 263.
312.
Ibid.
313.
Khor, above n 292, 211.
314.
See, for more radical practical approaches, Professor Lawrence Lessig, who suggested that:

A block of powerful developing nations should first take a page from the U.S. Copyright Act of 1790 and enact national laws that explicitly protect their own rights only. It would not protect foreigners. Second, these nations should add a provision that would relax this exemption to the extent that developed nations really opened their borders. If we reduce, for example, the subsidy to agribusiness by 10%, then they would permit 10% of our copyrights to be enforced (say, copyrights from the period 1923 to 1931). Reduce the subsidy by another 10%, then another 10% could be enforced. And so on.

See Lawrence Lessig, A Taste of Our Own Poison: A Modest Proposal: Hold Hollywood Hostage Till We Kill Farm Subsidies, (2004) Issue 12.01 Wired <http://www.wired.com/wired/archive/12.01/view.html?pg=5>.
315.
Matthew Turk argues that WTO jurisprudence is unsettled with respect to whether or not it adopts a pro-development interpretation of the TRIPS Agreement. See Matthew Turk, ‘The Bargaining and Intellectual Property Treaties: The Case for a Pro-Development International TRIPS but Not TRIPS Plus’ (2010) 42 New York University Journal of International Law and Policies 989.
316.
WTO, United States-Subsidies on Upland Cotton—2002 (Brazil v US) <http://www.wto.org/english/tratop_E/dispu_e/cases_e/ds267_e.htm>.
317.
Appellate Body Report, India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, 19 December 1997, 1 See also UNCTAD, above n 248.
318.
UNCTAD, above n 248.
319.
The Panel specifically found that:

[On] the basis of the findings set out above, the Panel concludes that India has not complied with its obligations under… the TRIPS Agreement, because it has failed to establish a mechanism that adequately preserves novelty and priority in respect of applications for product patents in respect of pharmaceutical and agricultural chemical inventions during the transitional period to which it is entitled under the Agreement, and to publish and notify adequately information about such a mechanism; and that India has not complied with its obligations [under] the TRIPS Agreement, because it has failed to establish a system for the grant of exclusive marketing rights.

Appellate Body Report, above n 317, 2. See also J. H. Reichman, ‘Securing Compliance with the TRIPS Agreement after U.S. v India’ (1998) Journal of International and Economic Law 595.
320.
Ibid.
321.
Appellate Body Report, above n 317, 58
322.
See also Reichman, above n 319, 596-597.
323.
Ibid 597.
324.
WTO, China: Measures Affecting the Protection and Enforcement of Intellectual Property Rights (United States vs China) <http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds362_e.htm >.
325.
Panel Report, China Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WTDS362/R (26 January 2009), 8.3-8.5.
326.
Panel Report, China Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WTDS362/R (26 January 2009), 761-762. See also Rochelle C. Dreyfuss, The Role of India, China and Brazil and Other Emerging Economies in Establishing Access Norms for Intellectual Property and Intellectual Property Law Making, IILJ (Institute for International Law and Justice) Working Paper 2009/5; NYU School of Law, Public Law Research Paper No. 09-53 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1442785>.
327.
Dreyfuss, above n 326.
328.
The Panel Report also noted that:

The first sentence of Article 1.1 sets out the basic obligation that Members ‘shall give effect’ to the provisions of this Agreement. This means that the provisions of the Agreement are obligations where stated, and the first sentence of Article 61 so states. The second sentence of Article 1.1 clarifies that the provisions of the Agreement are minimum standards only, in that it gives Members the freedom to implement a higher standard, subject to a condition. The third sentence of Article 1.1 does not grant Members freedom to implement a lower standard, but rather grants freedom to determine the appropriate method of implementation of the provisions to which they are required to give effect under the first sentence.

See Panel Report, above n 325, 513, 761-762.
329.
Reichman, above n 171, 1115, 1180; Reichman, above n 319, 587-588.
330.
They include the following:

(i) extending patents and copyright to new kinds of subject matter; (ii) eliminating or narrowing permitted exceptions, including those still provided in U.S. and European IP laws; (iii) extending protection terms; (iv) introducing new TRIPS-mandated IP rules earlier than the transition periods allowed by TRIPS; and (v) ratifying new WIPO treaties containing TRIPS-plus measures.

See Dutfield and Suthersanen, above n 201, 133.
A bilateral agreement that:

Requires a Member to implement a more extensive standard; or which eliminates an option for a Member under a TRIPS standard, is for the purpose of this article, a TRIP-plus standard. Bilateral treaties also set standards on issues that TRIPs does not deal with—e.g. whether reproduction in copyright law includes temporary copies—and which are therefore not strictly TRIPs-Plus.

See Drahos (2001), above n 174, 792.
331.
For example, several developing countries and emerging economies (India, Egypt, and Turkey) have also requested TRIPS-plus protection in the field of geographical indications. They were particularly concerned with the lack of IP protection offered under the TRIPS Agreement to basmati rice, tea, beer, handicrafts products, and other specified products. They argued that the protection regime of geographical indications under the TRIPS Agreement for spirits and wines (art 23.1) should be extended to other products, particularly those of interest to these countries. See, Correa, above n 263; Michael Blakeney, ‘TRIPS after the Doha Ministerial Declaration’ in Christopher Antons, Michael Blakeney, and Christopher Health (eds), Intellectual Property Harmonisation within the ASEAN and APEC (Kluwer Law International, 2004) 12-18.
332.
Braithwaite and Drahos, above n 104, 64.
333.
For a good interpretation of the WIPO Internet treaties, see, generally Mihály Ficsor, The Law of Copyright and the Internet 1996 WIPO Treaties, Their Interpretation and Implementation (Oxford University, 2002); Julie Cohen et al. (eds), Copyright in a Global Information Economy (Aspen Law and Business, 2002); Christopher May, The Global Economy of Intellectual Property Rights: The New Enclosure (Edward Elgar, 2nd ed, 2010) ch 4; Roberto Garza Barbosa, ‘Revisiting International Copyright Law’ (2007) 8 Barry Law Review 43, 59-60; Jessica Litman, Digital Copyright (Prometheus Books, 2001).
334.
Dutfield and Suthersanen, above n 30, 40.
335.
Deere, above n 33, 152.
336.
The EU utilised the bilateral trade negotiations with South Africa to gain additional IP protection (geographical indications) for various grape varieties and sherries for which it wanted special protection. See Pretorius, above n 150, 194.
337.
Deere, above n 33, 153; Pretorius, above n 150, 194.
338.
Lessig, above n 150, 34.
339.
Drahos (2001), above n 174, 803-805.
340.
Dutfield and Suthersanen, above n 30, 37.
341.
Doha Ministerial Declaration (14 November 2001) WTO <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm>.
342.
Doha Declaration on the TRIPS Agreement on Public Health (14 November 2001) WTO <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm>
343.
Doha Decision on Implementation-Related Issues and Concern (14 November 2001) WTO
<http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_implementation_e.htm>.
344.
Blakeney, above n 331, 11-28.
345.
Paragraphs 4 and 5 of the Doha Declaration states:

4. We agree that the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all.

5. Accordingly and in the light of paragraph 4 above, while maintaining our commitments in the TRIPS Agreement, we recognize that these flexibilities include:

a) In applying the customary rules of interpretation of public international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular, in its objectives and principles.

b) Each member has the right to grant compulsory licences and the freedom to determine the grounds upon which such licences are granted.

c) Each member has the right to determine what constitutes a national emergency or other circumstances of extreme urgency, it being understood that public health crises, including those relating to HIV/AIDS, tuberculosis, malaria and other epidemics, can represent a national emergency or other circumstances of extreme urgency.

d) The effect of the provisions in the TRIPS Agreement that are relevant to the exhaustion of intellectual property rights is to leave each member free to establish its own regime for such exhaustion without challenge, subject to the MFN and national treatment provisions of Articles 3 and 4.

Doha Declaration, above n 342.
346.
WTO, The Doha Declaration Explained <http://www.wto.org/english/tratop_e/dda_e/dohaexplained_e.htm>; WHO Commission, above n 227, 117.
347.
WTO, above 346; WHO, above n 227, 120.
348.
Michael Moore, ‘WTO and the New Round of Trade Talks’ (A speech delivered at the 14th General Meeting of the Pacific Economic Cooperation Council, Hong Kong, 28 November 2001).
349.
Yu, above n 141, 403.
350.
Susan K. Sell, ‘Intellectual Property and the Doha Development Agend’ (2006) 6 (2) Global Social Policy 147-150 <http://gsp.sagepub.com/cgi/reprint/6/2/147>.
351.
Those countries are Brazil, Argentina, Bolivia, Cuba, Dominican Republic, Ecuador, South Africa, Egypt, Kenya, Iran, Peru, Sierra Leone, Tanzania, and Venezuela.
352.
Ahmed Abdel Latif, ‘The Evolution of the A2K Movement’ in Hala Essalmawi Bibliotheca Alexandria Access to Knowledge Toolkit I, (A2K), Alexandria, Egypt: Bibliotheca Alexandria (2009), 9-38 <http://www.bibalex.org/a2k/attachments/references/reffileh150fxqxns2lld55djrkderc.pdf>; WIPO, The Proposal by Argentina and Brazil for the Establishment of a Development Agenda for WIPO <http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_31/wo_ga_31_11_add.pdf>.
353.
Cícero Gontijo explains why Brazil had the authority to make such a proposal on behalf of developing countries, due to its history of participation in and contributions to the forums on intellectual rights’ protection, including the Paris Convention, and its role in recommending the preparation of a study on the role of patents in developing countries. See Gontijo, above n 30, 19.
354.
The proposal noted:

[T]he need to integrate the ‘development dimension’ into the policy-making on intellectual property protection and called for, among other things, the establishment of a new subsidiary body within WIPO to examine technology transfer; a new treaty to promote access to the results of publicly-funded research in developing countries; fair enforcement of IP rights; and more development-oriented technical cooperation and assistance. The proposal concludes by saying that ‘a vision that promotes the absolute benefits of intellectual property protection without acknowledging public policy concerns undermines the very credibility of the IP system. Integrating the development dimension into the IP system and WIPO’s activities, on the other hand, will strengthen the credibility of the IP system and encourage its wider acceptance as an important tool for the promotion of innovation, creativity and development.’

WIPO, above n 352. See also Jack Lerner, ‘Intellectual Property and Development at WHO and WIPO’ (2008) 34 American Journal of Law and Medicine 296.
- Professor Peter Yu also noted that ‘the Development Agenda decisively rejects the intellectual property-centric view. It posits that strong intellectual property protection does not consistently promote creative activity, facilitate technology transfer, or accelerate development’. See Yu, above n 28, 519.
355.
WIPO, above n 352.
356.
The World Health Organization (WHO) has also launched its own development agenda with the intergovernmental Working Group on Public Health, Innovation and IP (IGWG), which is tasked with preparing a ‘global strategy and plan of action’, aimed at ‘[s]ecuring an enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportionately affect developing countries’. See Lerner, above n 354, 296.
357.
The PCDA adopted 45 recommendations (of the 111 original proposals) covering six clusters of activities. These are (a) technical assistance and capacity building; (b) norm setting, flexibilities, public policy, and public knowledge; (c) technology transfer, information and communication technology (ICT), and access to knowledge; (d) assessments, evaluation, and impact studies; (e) institutional matters, including mandate and governance; and (f) other issues.
See WIPO, Member States Adopt a Development Agenda for (2007) <www.wipo.int/pressroom/en/articles/2007/article_0071.html>.
358.
WIPO, Summary by the Chair <http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=104452>.
359.
WIPO, Committee on Development and Intellectual Property (CDIP) First Session <http://www.wipo.int/ip-development/en/agenda/cdip/>.
360.
WIPO, Committee on Development and Intellectual Property (CDIP) Second Session <http://www.wipo.int/ip-development/en/agenda/cdip/cdip_2.html>.
361.
WIPO, Committee on Development and Intellectual Property (CDIP) Third Session <http://www.wipo.int/meetings/en/details.jsp?meeting_id=17382>.
362.
WIPO, Committee on Development and Intellectual Property (CDIP) Fourth Session <http://www.wipo.int/meetings/en/details.jsp?meeting_id=17460>.
363.
WIPO, Committee on Development and Intellectual Property (CDIP) Fifth Session <http://www.wipo.int/meetings/en/details.jsp?meeting_id=19686>.
364.
These include the Director General’s Report on Implementation of the Development Agenda, IP and the public domain, WIPO’s contribution to the UN Millennium Development Goals (MDGs), patent-related flexibilities in the multilateral legal framework, and others. See WIPO, CDIP/5/10, Report of the Fifth Session of the Committee on Development and Intellectual Property (CDIP) <http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_5/cdip_5_ref_summary_revised.pdf>.
365.
WIPO, Committee on Development and Intellectual Property (CDIP) Sixth Session <http://www.wipo.int/meetings/en/details.jsp?meeting_id=19688>.
366.
WIPO, Document CDIP/5/10 Report of the Sixth Session of the Committee on Development and Intellectual Property (CDIP) <http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_6/cdip_6_ref_summary.pdf>.
367.
WIPO, Committee on Development and Intellectual Property (CDIP) Seventh Session <http://www.wipo.int/meetings/en/details.jsp?meeting_id=22102>.
368.
WIPO, CDIP/6/13—Report <http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_6/cdip_6_13.pdf>.
369.
WIPO, Committee on Development and Intellectual Property (CDIP) Eight Session <http://www.wipo.int/meetings/en/details.jsp?meeting_id=22206>.
370.
WIPO, Summary of the Chair <http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_8/cdip_8_summary.pdf>.
371.
WIPO, Committee on Development and Intellectual Property (CDIP) Ninth Session < http://www.wipo.int/meetings/en/details.jsp?meeting_id=25013>; WIPO, Summary of the Chair < http://www.wipo.int/edocs/mdocs/mdocs/en/cdip_9/cdip_9_summary.pdf >.
372.
Yu, above n 28, 469-573; Sisule F Musungu, Rethinking Innovation, Development and Intellectual Property in the UN: WIPO and Beyond TRIPS, Quaker International Affairs Programme, Issue Paper 5 (2005), The Quaker United Nations Office (QUNO) <http://www.quno.org/geneva/pdf/economic/Issues/TRIPS53.pdf>.
373.
Menescal, above n 30, 793. On the role of civil society, see Deere, above n 33, 168; Laurence R. Helfer, Nesting and Complexity in the International Intellectual Property Regime, Princeton University <http://www.princeton.edu/~smeunier/Helfer%20memo.pdf>.
374.
Menescal, above n 30, 786.
375.
The Trans Atlantic Consumer Dialogue <http://www.tacd.org/>.
376.
The Consumer Project on Technology <http://www.cptech.org/>.
377.
Abdel Latif, above n 352, 15; the Access to Knowledge Treaty <http://www.cptech.org/a2k/a2k_treaty_may9.pdf> (A2K Treaty).
378.
A2K Treaty, above n 377, arts 3-1.
379.
Ibid, arts 3-3.
380.
Ibid, arts 3-8.
381.
Ibid, arts 3-12.
382.
Ibid, arts 5-2.
383.
Ibid, arts 10-1.
384.
Ibid, arts 6-1, 6-2, 6-3, 6-4.
385.
Ibid, arts 5-6.
386.
Ibid, arts 5-1, 5-2.
387.
Karsten Gerloff, ‘Access to Knowledge in a Network Society’ (an L.L.M thesis, Universität Lüneburg, 2006) <http://nearlyfreespeech.org/downloads/a2k.netsoc.pdf>.
388.
Abdel Latif, above n 352, 15.
389.
The Yale Law School Information Society Program (ISP) has organised two major international conferences on A2K since 2006. These conferences have contributed to the momentum experienced by A2K while also strengthening the links of the A2K movement with academia and researchers. See, for more information, Abdel Latif, above n 352, 21.
390.
Laurence R. Helfer, ‘Toward a Human Rights Approach Framework for Intellectual Property’ (2007) 40 University of California Davis Law Review 971.
Valantina Vadi highlights that:

Access to Knowledge Treaty is an ambitious initiative whose major merit rests on the fact of being elaborated by a group of technical experts from different disciplines and background. This various composition enables the synopsis of a wide range of different perspective on the topic. Further, the document at least provides a starting point for further discussion, crystallising a series of different approaches and demands. Crucially, the treaty's proponents strongly support the view that ‘access to knowledge is a basic human right, and that restrictions on access ought to be the exception, not the other way round.

Valantina Vadi, ‘Sapere Aude! Access to Knowledge as a Human Right and a Key Instrument of Development’ (2008) 12 International Journal of Communication Law and Policy 345, 350.
391.
Musungu, above n 372, 18.
392.
Electronic Frontier Foundation (EFF), Anti-Counterfeiting Trade Agreement <http://www.eff.org/issues/acta>; Robin Gross, White Paper on the Proposed Anti-Counterfeiting Trade Agreement (ACTA) (25 March 2008) IP Justice <http://ipjustice.org/wp/2008/03/25/ipj-white-paper-acta-2008/>.
Principles for ACTA Negotiations Australian Digital Alliance <http://www.digital.org.au/our-work/publication/principles-acta-negotiations>; KEI, ACTA <http://www.keionline.org/acta>.
393.
EC, ‘EU, U.S. and Others Hold Geneva Talks on Anti-Counterfeiting Trade Agreement’ (5 June 2008) European Commission Trade Website <http://trade.ec.europa.eu/doclib/docs/2008/june/tradoc_139086.pdf>.
394.
James Love, ‘Obama Administration Rules Texts of New IPR Agreement Are State Secrets’ The Haffingotn Post (online), 12 March 2009 <http://www.huffingtonpost.com/james-love/obama-administration-rule_b_174450.html>.
395.
Ibid.
396.
Letter from the Office of the US Trade Representative to James Love, 10 March 2009 <http://www.keionline.org/misc-docs/3/ustr_foia_denial.pdf>.
397.
See Anti-Counterfeiting Trade Agreement (ACTA) (12 April 2010 draft) <http://trade.ec.europa.eu/doclib/docs/2010/april/tradoc_146029.pdf>
398.
See Anti-Counterfeiting Trade Agreement (ACTA) (15 November 2010 draft) <http://keionline.org/sites/default/files/acta_15nov2010.pdf>.
399.
These include Australia, the Republic of Austria, the Kingdom of Belgium, the Republic of Bulgaria, Canada, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the European Union, the Republic of Finland, the French Republic, the Federal Republic of Germany, the Hellenic Republic, the Republic of Hungary, Ireland, the Italian Republic, Japan, the Republic of Korea, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the United Mexican States, the Kingdom of Morocco, the Kingdom of the Netherlands, New Zealand, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Singapore, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.
400.
The Office of the United States Trade Representative, Joint Press Statement of the Anti-Counterfeiting Trade Agreement Negotiating Parties (press release October 2011) <http://www.ustr.gov/about-us/press-office/press-releases/2011/october/joint-press-statement-anti-counterfeiting-trade-ag>.
401.
See Anti-Counterfeiting Trade Agreement (ACTA), opened for signature on 1 May 2011 (entered into force on 1 October 2011) <http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/acta-crc_apr15-2011_eng.pdf>.
402.
Article 35 of ACTA provides that:
1. 1.
  Each Party shall endeavour to provide, upon request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving the enforcement of intellectual property rights to other Parties to this Agreement and, where appropriate, to prospective Parties. The capacity building and technical assistance may cover such areas as:
  1. (a)
    Enhancement of public awareness on intellectual property rights; (b) development and implementation of national legislation related to the enforcement of intellectual property rights; (c) training of officials on the enforcement of intellectual property rights; and (d) coordinated operations conducted at the regional and multilateral levels.
2. 2.
  Each Party shall endeavour to work closely with other Parties and, where appropriate, non-Parties to this Agreement for the purpose of implementing the provisions of paragraph 1.
3. 3.
  A Party may undertake the activities described in this Article in conjunction with relevant private sector or international organizations. Each Party shall strive to avoid unnecessary duplication between the activities described in this Article and other international cooperation activities.
Ibid 401.
403.
Michael Geist, New ACTA Leaks: Criminal Enforcement, Institutional Issues, and International Cooperation (19 March 2010) Boingboing <http://boingboing.net/2010/03/19/new-acta-leak-its-a.html>; Cory Doctorow, New ACTA Leak: It's a Screw Job for the World’s Poor Countries (19 March 2010) Boingboing <http://boingboing.net/2010/03/19/new-acta-leak-its-a.html>
404.
Geist, above n 403.
405.
Khan, above n 4, 58.

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Rami M. Olwan

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Olwan, R.M. (2012). The History of International Intellectual Property and Development. In: Intellectual Property and Development. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27907-2_2

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