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Abstract:
During the late 1980s and early 1990s, the United States repeatedly threatened China with a series of economic sanctions, trade wars, non-renewal of most-favored-nation status, and opposition to entry into the World Trade Organization. Such threats eventually led to compromises by the Chinese government and the signing of intellectual property agreements in 1992, 1995, and 1996. Despite these agreements, intellectual property piracy remains rampant in China.

Although China initially had serious concerns about the United States's threats of trade sanctions, the constant use of such threats by the U.S. government has led China to change its reaction and approach. By 1996, it had become obvious that the existing American foreign intellectual property policy was ineffective, misguided, and self-deluding. The United States not only lost its credibility, but its constant use of trade threats helped China improve its ability to resist American demands. Such threats and bullying also created hostility among the Chinese people, making the government more reluctant to adopt Western intellectual property law reforms. Thus, scholars, policymakers, and commentators have called for a critical assessment and reformulation of the existing ineffective policy.

While many commentators have criticized the wrong-headed U.S.-China intellectual property policy, so far no scholarship has utilized the constructive strategic partnership model pronounced in the Joint Statement issued after the 1997 U.S.-China Summit. This Article argues that this partnership model not only presents a new model upon which the two countries are to build their diplomatic relations, but also provides a conceptual framework under which a new bilateral intellectual property policy is to be developed. This Article traces the breakdown of the American intellectual property policy toward China and examines the constructive strategic partnership model. To help policymakers formulate a new policy, this Article develops a twelve-step action plan that aims to cultivate a more stable and harmonious relationship of the two countries, to foster better mutual understanding between each other, and to promote a self-sustainable intellectual property regime in China.

Abstract:
Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate.

Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek to advance a new theory or model, which could quickly become obsolete, given the rapid advance of digital and P2P technologies. Rather, it provides guidelines to help policymakers to craft an effective solution to the unauthorized copying problem.

This Article begins by examining the RIAA's enforcement tactics, developments in copyright law in 2003, and possible challenges the entertainment industry will face in ensuing years. The Article then evaluates critically proposals commentators have put forward to solve the unauthorized copying problem: (1) mass licensing, (2) compulsory licensing, (3) voluntary collective licensing, (4) voluntary contribution, (5) technological protection, (6) copyright law revision, (7) administrative dispute resolution proceeding, and (8) alternative compensation. Acknowledging the provisional nature of these proposals, this Article contends that policymakers need to adopt a range of solutions that meet the needs of consumers while taking into account the Internet's structural resistance to control, its immutable characteristics as a network, and the changing social norms in the digital copyright world.

This Article concludes by challenging policymakers and commentators to step outside their mental boundaries to rethink the P2P file-sharing debate. By presenting thought experiments that compare the ongoing P2P file-sharing wars to (1) a battle for self-preservation between humans and machines, (2) an imaginary World War III, and (3) the conquest of Generation Y, this Article demonstrates that policymakers should not focus on legal solutions alone. Instead, they should pay more attention to market forces, technological architectures, and social norms, which also play very important roles in crafting an effective solution to the unauthorized copying problem. The Article concludes by offering some guidelines that may point the way to this solution.

Abstract:
Piracy is one of the biggest threats confronting the entertainment industry today. Every year, the industry is estimated to lose billions of dollars in revenue and faces the potential loss of hundreds of thousands of jobs. To protect itself against Internet pirates, the entertainment industry has launched the latest copyright war. So far, the industry has been winning. Among its trophies are the enactment of the Digital Millennium Copyright Act, Vivendi Universal's defeat and purchase of MP3.com, the movie studios' victory in the DeCSS litigation, the bankruptcy and subsequent sale of Napster and its recent relaunch as a legitimate subscription-based music service, the Supreme Court's rejection of the copyright bargain theory in Eldred v. Ashcroft, and the recording industry's relative success in its mass litigation campaign.

Notwithstanding these victories, the war is expanding and has become even more difficult for the industry to fight than it was a year ago. Today, copyright law is no longer a complicated issue that is only of interest and concern to copyright lawyers, legal scholars, technology developers, and intellectual property rightsholders. Rather, it is a matter of public significance, affecting all of us in our daily lives. The ground has shifted. If the entertainment industry does not pay attention to the public and if it continues to use ill-advised battle strategies, it eventually might lose the war.

Delivered as part of the 2003 Frontiers in Information and Communications Policy Lecture Series at Michigan State University, this Article examines the strategies used by the entertainment industry to fight the copyright wars: lobbying, litigation, self-help, education, and licensing. It also explores the impact of Eldred v. Ashcroft on these strategies, the decision's ramifications on future constitutional challenges to copyright laws, and recent developments in the international copyright arena. It concludes by arguing that the entertainment industry should change its existing strategies in light of the proliferation of peer-to-peer file-sharing networks and the increased consciousness of copyright issues.

Abstract:
In November 2001, member states of the World Trade Organization (WTO) approved the proposal to admit China to the international trading body. After fifteen years of exhaustive negotiations, China finally became the 143rd member of the WTO on December 11, 2001. To reflect on this event, this panel brings together six China experts to explore the ramifications of China's accession to the WTO. Among the issues addressed are whether China is making progress in its compliance with the WTO requirements, whether China is suffering setbacks in the socio-economic arena, whether there are any prospects for democratic reforms and stronger human rights and environmental protection in the country, and what the WTO accession means to China's neighbors and the global community.

Abstract:
In From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century, I criticized the ineffectiveness and short-sightedness of the U.S.-China intellectual property policy. As I argued, the approach taken by the administration in the 1980s and early 1990s had created a cycle of futility in which China and the United States repeatedly threatened each other with trade wars only to back down in the eleventh hour with a compromise that did not provide sustainable improvements in intellectual property protection.

Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its intellectual property system. Because of China's WTO membership, the United States can no longer impose unilateral sanctions on the country, as it threatened to do a decade ago. Instead, the United States has to resolve the dispute through the WTO dispute settlement process. As the U.S. administration is currently reviewing its options and preparing for a possible WTO dispute against China, it is timely and important to reopen the debate about how to design an effective American intellectual property policy toward China.

This article begins by challenging the conventional view that the intellectual property law amendments introduced in China in the wake of WTO accession were mostly introduced to conform Chinese intellectual property laws to WTO standards. It argues that many of the amendments were created as responses to the emerging socialist market economy and the rapidly-changing local conditions in the country. In addition, the article takes on the recent proposals for the U.S. administration to file a formal complaint with the WTO Dispute Settlement Body over inadequate enforcement of intellectual property rights in China and explains why the United States should not do so.

The article then explores alternative protection strategies by presenting five case studies in which intellectual property rights holders were able to protect their assets without relying on intellectual property laws. It questions the effectiveness of the litigious approach taken by foreign businesses while exploring differences between the Chinese and Western legal cultures. The article concludes by examining the progress China made in the intellectual property arena by focusing on three widely-reported incidents: the unauthorized reproduction, translation, and adaptation of Harry Potter novels, the State Intellectual Property Office's recent decision to invalidate Pfizer's patent in Viagra, and the Chinese authorities' heightened effort to protect trademarks used in relation to the 2008 Beijing Olympics.

Abstract:
The digital revolution has transformed the lives of many, but also has left untouched the lives of many others. As a result, a large segment of the world population misses out on the tremendous political, social, economic, educational, and career opportunities created by the digital revolution. This gap between the information haves and have-nots is commonly referred to as the digital divide.

Although evidence suggested that the digital divide in the United States is closing, the same is not true for the less developed countries. In light of the alarming disparities between the information haves and have-nots, the Howard M. Squadron Program in Law, Media and Society at the Benjamin N. Cardozo School of Law, Yeshiva University selected the digital divide as the topic for its Second Squadron Symposium on Internet, Law & Society. Included in the symposium issue published by the Cardozo Arts & Entertainment Law Journal are articles by Andrew Celli, Mark Cooper, Kenneth Dreifach, B. Keith Fulton, Allen Hammond, and Jack Qiu.

As an introduction to this symposium issue, this Article highlights the global significance of the digital divide. It discusses five key prerequisites for bridging this inequitable gap: awareness, access, affordability, availability, and adaptability. It also explores the inequalities in Internet access between the developed and less developed countries and explains why including the less developed countries in the digital revolution would benefit the developed countries as well as the less developed countries. The Article concludes by highlighting the various areas that may present challenges to policies seeking to bridge the digital divide.

Abstract:
Most recently, the recording industry filed 261 lawsuits against individuals who illegally downloaded and distributed a large amount of music via peer-to-peer file-sharing networks, such as KaZaA, Grokster, iMesh, and Gnutella. Although the industry's recent approach was controversial and resulted in major criticisms from legislators, academics, civil libertarians, consumer advocates, and university officials, the copyright holders' aggressive tactics are not new.

In fact, copyright holders have been known for using, or encouraging their government to use, coercive power to protect their creative works. Only a decade ago, the U.S. copyright industries have lobbied their government to use strong-armed tactics to coerce China into protecting intellectual property rights. Succumbing to U.S. trade pressure, the Chinese authorities eventually raided pirate factories and handed out harsh penalties, including the death penalty and life imprisonment in severe cases, on their citizens.

The similarities between the RIAA and China stories were more than a coincidence and could be further linked to a third story. That story took place two centuries ago when the United States was still a less developed country. At that time, book piracy was rampant, and the United States was considered one of the most notorious pirating nations in the world.

This Article brings together, for the first time, eighteenth- and nineteenth-century America, twentieth-century China, and twenty-first-century cyberspace and analyzes them using a cross-cultural, cross-systemic, cross-temporal, and cross-sectoral approach. This Article not only highlights the striking similarities among the three stories, but also argues that these similarities provide insight into the war on piracy, intellectual property law reforms, and international harmonization efforts.

Abstract:
Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and the Geneva Declaration on the Future of WIPO.

This Article challenges the incomplete views held by those on both sides of the debate and argues that the recent developments are neither new nor surprising. To help us better understand these developments, the Article traces the historical development of the international intellectual property regime and demonstrates that this regime is a product of repeated interactions between various sets of currents and crosscurrents. While the currents of multilateralism push for uniformity and harmonization, the crosscurrents of resistance enable countries to retain diversity while engaging in continuous legal experimentation. By bringing together these currents and crosscurrents, this Article demonstrates that the international intellectual property regime is an ongoing project that provides opportunities and crises for both developed and less developed countries, as well as rightsholders and individual end-users.

This Article traces the origins of the Berne and Paris Conventions, the TRIPs Agreement, and the 1996 WIPO Internet Treaties. It discusses how countries became dissatisfied with the use of bilateral agreements to protect authors and inventors in foreign countries and thus pushed for the establishment of multilateral treaties. It also explores five crosscurrents that have emerged in the international intellectual property regime in recent years: reciprocization, diversification, bilateralism, non-nationalization, and abandonment. This Article suggests that these crosscurrents may undercut international harmonization efforts and create new challenges for the regime. It concludes by providing observations in five different areas: bargaining frameworks, regime development, global lawmaking, harmonization efforts, and judicial trends.

Abstract:
Since the mid-1980s, the U.S.-China intellectual property conflict has entered into the public debate. It was frequently debated in Congress and was widely covered by the mass media. Despite the importance of this issue, the debate thus far has been one-sided, focusing primarily on the unfair competition aspect. While there are undeniably some greedy Chinese who are eager to free ride on the creative efforts of Western authors and inventors, greed alone cannot explain the century-old U.S.-China intellectual property conflict. To understand the roots of this conflict, one must focus on the significant political, social, economic and cultural differences between China and the West. Unless the Chinese government introduces reforms that are sensitive to these differences, the piracy problem will continue. Indeed, the problem will exacerbate as the Chinese economy grows.

To help skew the debate back to its correct perspective, this Article articulates the various differences between China and the West and explains how these differences have contributed to the failure of the United States's repeated conversion attempts. The Article also highlights the undesirability for and ineffectiveness of forced conversion by juxtaposing the piracy problem with one of Shakespeare's legal masterpieces, The Merchant of Venice. By comparing China's experience in the international intellectual property community to Shylock's predicament in the play, this Article seeks to challenge the readers' cultural presumptions and invites readers to step outside their own world to rethink the U.S.-China intellectual property conflict. The Article concludes that Shakespeare's teachings in the play may provide insights into how policymakers can resolve, or at least minimize, this century-old conflict.

Abstract:
The TRIPs Agreement was established at the ministerial meeting in Marrakesh in April 1994. Since its establishment, many less developed countries have become dissatisfied with the international intellectual property system. From their perspective, the system fails to take into consideration their needs, interests, and local conditions. The strong protection mandated by the Agreement also threatens their much-needed access to information, knowledge, and essential medicines.

This year marks the tenth anniversary of the TRIPs Agreement. It provides an excellent opportunity to assess the Agreement's achievements and shortfalls, in particular its impact on the international community as well as on other areas not related to intellectual property, such as agriculture, health, the environment, education, and culture. As we move into the second decade of this Agreement, it is also appropriate to explore how we can preserve the goals and intentions behind the TRIPs negotiations and to look ahead at the future challenges confronting the international intellectual property system.

Published as part of the Symposium on The First Ten Years of the TRIPs Agreement, this article begins by describing the four different narratives used to explain the origins of the Agreement. It contends that while none of these narratives is complete, each provides valuable insight into understanding the context in which the Agreement was created. The article then explores why less developed countries have been dissatisfied with the international intellectual property system and discusses the latest developments in the area, such as the recent WTO debacle in Cancun, the proliferation of bilateral and plurilateral free trade agreements, and the increasing use of technological protection measures. The article concludes by offering suggestions on how less developed countries can reform the international intellectual property system. Instead of calling for a complete overhaul or the abandonment of the TRIPs Agreement, the article takes the position that the Agreement is here to stay and explores, from that standpoint, how less developed countries can take advantage of the Agreement and reform the international intellectual property system.

Abstract:
Copyright piracy is one of the most difficult, yet important, transnational problems in the twenty-first century. Although legal literature has discussed copyright piracy extensively, commentators rarely offer a "grand unified theory" on this global problem. Rather, they give nuanced analyses, discussing the many aspects of the problem-political, social, economic, cultural, and historical.

This nuanced discussion, however, is missing in the current public debate. To capture the readers' emotion and to generate support for proposed legislative and executive actions, the debate often oversimplifies the complicated picture by overexagerrating a particular aspect of the piracy problem or by offering an abbreviated, easy-to-understand, yet somewhat misleading version of the story. Such oversimplification is dangerous, for it creates misconceptions that not only confuse the public as to the cause and extent of the problem, but also mislead policymakers into finding solutions that fail to attack the crux of the piracy problem.

In light of this shortcoming, this Article discusses four common misconceptions about copyright piracy: (1) Copyright piracy is merely a cultural problem; (2) copyright piracy is primarily a development issue; (3) copyright piracy is a past phenomenon for technologically-advanced countries; and (4) copyright piracy is a necessary byproduct of authoritarian rule. It then attempts to reconfigure the misguided public debate on copyright piracy by underscoring the need to focus on the copyright divide - the gap between those who have stakes in the copyright regime and those who do not. This Article concludes by warning that the United States might not be able to eradicate the piracy problem unless its legislators and policymakers are willing to change the lawmaking process by taking into account the interests of both the stakeholders and nonstakeholders.

Abstract:
In the past, intellectual property issues were considered complex, obscure, and highly technical; they were only of interest and concern to intellectual property attorneys, legal scholars, technology developers, and rightsholders. Thanks to the Internet and new communications technologies, however, intellectual property has now begun to play a more significant role in society.

In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the conference affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address issues concerning the recent expansion of intellectual property rights. Being vague and abstract, the documents also fail to provide concrete actions as to how the international community can improve the international intellectual property regime.

This book chapter examines the international intellectual property regime as it relates to the development of an inclusive global information society. Part I provides an overview of the various intellectual property rights and justifications for protecting these rights. Part II explores the increased distrust of the intellectual property system, especially among less developed countries, human rights advocates, development specialists, and those on the unfortunate side of the digital divide. Part III delineates five prerequisites for the development of a fair, balanced, and robust international intellectual property regime: (1) thorough understanding, (2) balanced debate, (3) effective dialogue, (4) fair regime, and (5) global solidarity. Part IV concludes by critically examining the intellectual property-related portions of the WSIS Declaration of Principles and Plan of Action.

Abstract:
Since the late 1980s, the Chinese economy has been growing at an enviable average annual rate of about 10 per cent. Accompanying this unprecedented economic development and growth was the maturation of the modern Chinese intellectual property system. Since the reopening of its market to foreign trade in the late 1970s, China introduced its first modern copyright, patent, and trademark laws. A decade later, China revamped its intellectual property system in response to US pressure and did so again in preparation for its accession to the WTO. At present, China is a proud member of many multilateral intellectual property agreements. Notwithstanding these developments, the enforcement of intellectual property rights in China remains inadequate.

Although commentators often link intellectual property protection with economic development, China thus far has presented a puzzle to those who study this link. While some commentators consider China a paradigmatic case for showing that rapid economic development can take place despite limited intellectual property protection, others have noted gradual improvements in the Chinese intellectual property system as the country became more economically developed. In fact, history suggests that China is now simply following the economic development paths of Hong Kong, Japan, Singapore, South Korea, Taiwan--or even Germany and the United States. It is only a matter of time before China is converted from a pirating nation to a country that respects intellectual property rights.

This book chapter examines the relationship between intellectual property protection and economic development. It begins by exploring the conventional linkage between intellectual property protection and foreign direct investment. The chapter then examines why China expanded its intellectual property protection even though such expansion was unnecessary for attracting FDI. The final section highlights the country's regional and sectoral disparities, its inadequate development of an enabling environment for effective intellectual property protection, and its improvements in intellectual property protection at both the microscopic and qualitative levels. The chapter takes the view that a better understanding of the role of intellectual property protection in promoting economic development will provide a more accurate forecast of when China will reach a crossover point at which it will find stronger intellectual property protection in its self-interests.

Abstract:
Country-code top-level domains (ccTLDs) are the two-letter suffixes used by countries to denote their Internet addresses. Examples include .fr (for France), .tv (for Tuvalu) and .uk (for the United Kingdom). When ccTLDs were first developed, ccTLD policymaking was not high on the international lawmaking agenda. However, as the Internet explodes and as countries begin to realize the potential of this key information infrastructure, ccTLDs have received significant attention from the international community.

Added to the ccTLD policymaking debate is the creation and development of the Internet Corporation for Assigned Names and Numbers (ICANN), a non-profit corporation formed to assume responsibility for the IP address space allocation, protocol parameter assignment, domain name system management, and root server system management functions previously performed under U.S. Government contract by IANA and other entities.

This book chapter recounts the power struggle over the control of the Domain Name System and authority to delegate and administer ccTLDs. It traces how ccTLD policymaking has been transformed from ad hoc, informal coordination to international, contract-based governance. It also discusses the various major players in the ccTLD debate: ICANN, the Internet Assigned Numbers Authority (IANA), ccTLD managers, national governments, the International Telecommunication Union (ITU), and the World Intellectual Property Organization (WIPO).

Abstract:
Since the establishment of the World Trade Organization and the entering into effect of the TRIPs Agreement, government officials, international bureaucrats, intergovernmental and nongovernmental organizations, courts, and scholars have focused more attention on the interplay of human rights and intellectual property rights. For example, the U.N. Sub-Commission on the Promotion and Protection of Human Rights recently noted the considerable tension and conflict between these two sets of rights. To avoid these conflicts, the Sub-Commission recommended the primacy of human rights obligations over economic policies and agreements.

While this hierarchy of rights appears straightforward, the situation is actually more complicated because some attributes of intellectual property rights are protected in international or regional human rights instruments. Both the Universal Declaration of Human Rights (UDHR) and the International Covenant of Economic, Social, and Cultural Rights (ICESCR), for example, recognize the right to the protection of the moral and material interests resulting from an individual's scientific, literary or artistic production. In light of these human rights instruments, it is difficult to argue that intellectual property laws and policies should always be subordinated to human rights obligations in the event of a conflict between the two. Instead, a careful and nuanced analysis of the various attributes of intellectual property rights is in order.

This Article begins by providing a brief history of the drafting of article 27(2) of the UDHR and article 15(1)(c) of the ICESCR. It recaptures the politically-charged environment under which the two instruments were created and the controversy surrounding the protection of moral and material interests in intellectual creations. The article then discusses the various attributes of intellectual property rights that are protected by international or regional human rights instruments and distinguishes these human rights attributes from others that have no human rights basis at all. The article also explores approaches that have been used to resolve conflicts between human rights and the non-human rights aspects of intellectual property protection. It concludes by highlighting the challenges confronting the development of a human rights framework for intellectual property.

Abstract:
As the world becomes increasingly globalized, harmonization is badly needed to provide stability, certainty, and efficiency. Unfortunately for less developed countries, these efforts have led to the development of many one-size-fits-all templates that fail to take into account local needs and variations. Even worse, policymakers who are driving the harmonization process at times have lost sight of the public interest and other important social goals. By ignoring the needs of less developed countries, they enlarged the gap between developed and less developed countries and created tension and conflict within the international community.

In November 2002, the author organized a symposium on "Patent Law, Social Policy, and Public Interest: The Search for a Balanced Global System." This symposium examines the patent harmonization process, the diverging standards used in the international patent system, and the theories and rationales behind these varying standards. To illustrate the complexities in, and challenges confronting, the international patent system, this introductory essay focuses on the recent race to patent the SARS virus. This essay discusses the danger of having a patent system that overprotects, the complex issues concerning SARS-related patents, and how SARS research can benefit from lessons from the HIV/AIDS Crisis.

Abstract:
Countries differ in terms of their levels of wealth, economic structures, technological capabilities, political systems, and cultural tradition. No two countries have the same needs or goals. As a result, policymakers face different political pressures and make different value judgments as to what would best promote the creation and dissemination of intellectual works in their own countries. These uncoordinated judgments eventually result in a conflicting set of intellectual property laws around the world.

As countries become increasingly interdependent in this globalized economy, these conflicting laws create tension and sometimes result in disputes. To minimize differences and prevent conflicts, countries use a variety of dispute resolution techniques, including self-help, coercion, mutual exchange of information, international agreements, and multilateral regimes. Commentators generally analyze these techniques by focusing on the number of parties involved in resolving an intellectual property dispute. Using a unilateral-bilateral-multilateral trichotomy, commentators suggest that one can infer some general characteristics of a dispute resolution arrangement by counting the number of parties involved in resolving a conflict.

This Article argues that, although the unilateral-bilateral-multilateral trichotomy provides some helpful insights into the nature of a dispute resolution arrangement, it provides very limited information about the effectiveness and future prospects of that arrangement. Thus, the Article proposes a new, but companion, analytical framework, which focuses on the approach used to resolve the conflict, instead of the number of parties involved. Drawing on the experiences of mediators, business strategists, and international relations theorists, this Article argues that the nonzero-sum approach is the most preferable approach used to resolve global intellectual property disputes.

Abstract:
In the past two decades, copyright protection throughout the world has been greatly expanded to respond to challenges posed by new communications technologies and copyrightable subject matters. As protection has increased, the growing power of copyright owners has also led to market abuses that stifle competition and innovation. In response to these abuses, courts, litigants, policy makers, and commentators have increasingly embraced competition law, the doctrines of copyright misuse and unclean hands, and tort law concepts as counter-balancing tools. This article discusses four different types of abuse that has occurred in the copyright area and examines the various legal doctrines that have been employed by Canadian and U.S. courts to resolve cases involving such abuse.

The first section discusses the limited monopolies of copyright owners and the various safeguards that have been built into the copyright system. Using five recent cases - four in the United States and one in Canada - this Part highlights the growing abuse of copyright by its owners in recent years. The second section discusses the uneasy relationship between copyright law and the law of monopolies. It explores four categories of abuse cases and how the law has been applied in these cases. The final section examines legal doctrines that lie outside competition law, but have yet to be used to deal with copyright abuse. In particular, this Part discusses the doctrines of copyright misuse and unclean hands and the claims of abuse of process and tortious interference.

Abstract:
Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in the country alone. Published as part of the U.S.-China Trade: Opportunities and Challenges Symposium, this Essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the Dispute Settlement Body of the World Trade Organization over inadequate enforcement of intellectual property rights.

The Essay begins by articulating four reasons why the administration should not do so. It then compares the approach recently proposed to the administration with the approach taken by the administration in the 1980s and early 1990s. This Essay argues that the current proposal would create a cycle of futility similar to the cycles created by the decade-old American intellectual property policy toward China. To avoid these cycles, the Essay highlights four remedial areas on which the administration and the business community should focus. The Essay concludes with three observations that provide insight into the piracy and counterfeiting problems in China and the difficulty in alleviating those problems.

Abstract:
In the recent World Men's Basketball Championships in Indianapolis, Team USA found out painfully that the international game is very different from what they play at home and that the gap between USA Basketball and the rest of the world has been closing. While their losses might have a significant impact on how the United States prepares for the 2004 Olympics in Athens and on how Americans train youngsters to play basketball, their teachings go beyond basketball.

The international harmonization process is a game with different rules, different officials, and players with different visions and mindsets. By watching how players interact with rules, officials, and other players, one therefore could gain insight into globalization and the international harmonization process. This Article brings together two leading American exports - laws and basketball - and discusses how the recent losses by Team USA might offer valuable lessons on intellectual property and international trade.

Abstract:
Since the creation of the Paris and Berne Conventions, the European Communities and the United States have been pushing for greater harmonization of intellectual property protection throughout the world. In 1994, for example, the World Trade Organization was established, bringing with it the oft-criticized TRIPs Agreement. Less than a decade later, the WIPO Internet Treaties entered into force, updating the international intellectual property regime to reflect changes in the digital environment. At the turn of this century, WIPO also initiated discussions on several harmonization treaties. Two of the more controversial ones concern the Substantive Patent Law Treaty and the Treaty on the Protection of Broadcasting Organizations.

Notwithstanding these harmonization efforts, countries - both developed and less developed - have become increasingly dissatisfied with the international intellectual property regime. To protect themselves and to reclaim autonomy over their intellectual property policies, they have recently pushed for measures that frustrate the harmonization project. While less developed countries push for the establishment of the development agenda, in the hope of rolling back some of the protection required by the TRIPs Agreement and other international treaties, developed countries use bilateral and plurilateral free trade agreements to pressure their less powerful counterparts to ratchet up intellectual property protection and enforcement. In addition, exporting industries in developed countries have introduced mass-market contracts and technological self-help measures to protect themselves against large-scale piracy and counterfeiting in less developed countries and in the digital environment.

This book chapter focuses on five disharmonizing trends that offer resistance to the recent push for greater harmonization in the international intellectual property arena: (1) the inclusion of reciprocity provisions in national laws, (2) the demands for diversification, (3) the use of bilateral and plurilateral agreements, (4) the creation of non-national systems as a response to Internet disputes, and (5) the reliance on alternative measures by rights holders. The Chapter examines each of these trends and explores the challenges they have created for the future development of the international intellectual property regime.

Abstract:
With the continuous expansion of intellectual property rights, there is a growing need for the development of a human rights framework for intellectual property rights. Such a framework is not only socially beneficial, but will enable the development of a balanced intellectual property system that takes human rights obligations into consideration. Developing such a framework, however, is not easy and has raised many difficult questions. Some of these questions are foundational, some of them conceptual, and the remainder merely implementational.

This article tackles in turn ten questions the author has frequently encountered when he discusses the development of a human rights framework for intellectual property rights. It is his hope that a better understanding of the answers to these questions will help promote a constructive and fruitful dialogue concerning of the interplay of intellectual property and human rights.

The ten questions explored in this article are: (1) Are intellectual property rights human rights? (2) Besides access to medicines, are there other intellectual property issues that implicate the protection of human rights? (3) Should the human rights debate separate patents from copyrights? (4) Are all forms of intellectual property rights human rights? (5) Can corporations claim protection of the right to the protection of interests in intellectual creations? (6) Does the right to private property already protect interests in intellectual creations? (7) Can human rights interests be built into the intellectual property system? (8) Will the human rights framework ratchet up existing intellectual property protection? (9) Will the human rights framework benefit indigenous peoples and traditional communities? (10) Will the human rights framework benefit less developed countries?

Abstract:
The debate on China's piracy and counterfeiting problems has been ongoing for more than two decades. However, in the past few years, this debate has taken on a new sense of urgency and significance. In August 2008, the City of Beijing will host the Summer Olympic Games. Two years later, the 2010 World Expo will be held in Shanghai. In addition, two World Trade Organization dispute settlement panels were recently established to resolve disputes between China and the United States over inadequate enforcement of intellectual property rights and inadequate market access to U.S. media products. All of these developments, of course, take place against a background of China's rise to emerging world power status.

Although the Olympics, the World Expo, and the two WTO dispute settlement panels all constitute new developments in the U.S.-China intellectual property debate, the existing debate is not that different from the debate in the late 1990s when I began studying intellectual property protection in China. While some commentators have attributed China's piracy and counterfeiting problems to the lack of political will on the part of Chinese authorities, others have cited the many political, social, economic, cultural, judicial, and technological problems that have arisen as a result of the country's rapid economic transformation and accession to the WTO.

This Essay, however, advances a different explanation, which I briefly touched upon in previous writings. It argues that the failure to resolve piracy and counterfeiting problems in China can be partly attributed to the lack of political will on the part of U.S. policymakers and the American public to put intellectual property protection at the very top of the U.S.-China agenda. In other words, it is not only the Chinese who lack political will, as many critics have claimed, but the Americans as well. To illustrate this argument, this Essay examines three questions I always ask when I engage in debate with U.S. scholars and policymakers over intellectual property protection in China. It is the hope that the ensuing discussion will underscore the policy complexities involved in the U.S.-China intellectual property debate.

Abstract:
This short essay proceeds in two parts. The first part examines the controversy surrounding the use of the term intellectual property. It discusses the common criticisms of the term's usage, including those articulated by Richard Stallman. It also challenges the myth that intellectual property did not acquire any property attributes until the establishment of the World Intellectual Property Organization. The essay suggests that the term may remain in common usage despite its uneasy analogy to real property, and a more nuanced understanding of property law may alleviate some of the problems caused by using the term.

The second part focuses on the need for a new conceptual framework to reframe the intellectual property debate. This part articulates three reasons why the information ecosystem would provide such a framework. First, it reminds policymakers and commentators of the problems of the current bipolar intellectual property debate. Second, it highlights the different components of the intellectual property system and the interactions among these components. Third, it underscores the need to take a holistic perspective and consider intellectual property laws and policies as one of the many components of a larger information ecosystem.

Abstract:
Today's copyright debate has generally focused on the digital dilemma created by Internet and new media technologies. Threats created by emerging communications technologies, however, are not new. Throughout history, there have been remarkable similarities between the threats created by new technologies and those posed by older ones.

During the oral argument in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., Justice Stephen Breyer questioned whether the petitioners' counsel would apply the test proposed for the new technology to some once-new technologies, such as the photocopying machine, the videocassette recorder, the iPod, and the printing press. When the counsel quickly responded in the affirmative in each case, Justice Breyer could not help but quip, "[F]or all I know, the monks had a fit when Gutenberg made his press."

While the Justice's timely observation unsurprisingly earned laughter from the audience, it also provoked us to rethink the nature, newness, and ramifications of the challenge confronting the entertainment industry today. Many legal scholars have described copyright as a response to the emergence of the printing press. However, very few have examined the press's impact on a group of contemporary middlemen - the medieval scribes. This Essay undertakes this inquiry and explores the impact of the then-new technology on the now-obsolete scribal industry. It begins by tracing the emergence of medieval scribes and the printing press and concludes with observations on the policy responses to the challenge created by the Internet and new communications technologies.

Abstract:
In today's debate on digital rights management systems, there is a considerable divide between the rights holders, their investors and representatives on the one hand and academics, consumer advocates, and civil libertarians on the other. These two groups often talk past each other, concocting their own doomsday scenarios while arguing for laws and policies that vindicate their positions. Unfortunately, neither side has sufficient empirical evidence to either support its position or disprove its rivals'. As the digital economy grows, the debate intensifies, and the divide between the two sides widens. Today, there has emerged an urgent need to find the common ground on this very divisive issue.

Published as part of the Inaugural Summit on Intellectual Property and Digital Media, this article begins by examining the positions taken by the proponents and critics of DRM systems and related laws. It then focuses on anticircumvention laws, highlighting their harms at both the domestic and international levels. Contending that an unbalanced international anticircumvention regime is more harmful than its domestic counterpart, this article calls for countries, in particular less developed countries, to be more cautious about the ratification and subsequent implementation of the WIPO Internet Treaties. This article concludes with four observations which provide insight into the development of the next generation of DRM systems and the supporting legal regime.

Abstract:
Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and they as a result have also lost their ability to respond to domestic crises within their borders.

The crisis that hitherto has received the widest international attention concerns the lack of ability by less developed countries to combat HIV/AIDS, malaria, and tuberculosis. To respond to these crises and to mitigate the adverse impact of the TRIPs Agreement, WTO members agreed during the Hong Kong Ministerial to amend the Agreement to allow member states with insufficient or no manufacturing capacity to import generic versions of on-patent pharmaceuticals. The proposed amendment marked the first time the WTO agreed to amend one of its core agreements. If adopted, the amendment would make permanent the temporary waivers granted by the General Council in August 2003.

Using the access-to-medicines problem in less developed countries, this article illustrates the complexity of decisions that countries need to make at the national level and the complex, symbiotic relationship of the different types of factors that inhibit access to medicines. It then traces the development of the international enclosure movement and shows how the international intellectual property system was originally designed to preserve the autonomy of countries to devise their own intellectual property policies. Focusing on the developments from the August 2003 decision to the recently proposed article 31bis of the TRIPs Agreement, this article further illustrates the danger of the international enclosure movement, in particular how countries failed to reclaim their lost policy space once that space has been enclosed.

The article concludes with suggestions on how countries can reform the international intellectual property system to preserve the autonomy needed to tailor policies to local conditions and how less developed countries can reclaim their lost policy space to facilitate greater access to essential medicines. In designing these suggestions, the article focuses on three main attributes of the international enclosure movement: (1) the power asymmetry between developed and less developed countries; (2) the incentive-investment divide between national and foreign intellectual property policies; and (3) the globalization of intellectual property rights.

Abstract:
Intellectual property law was in the backwater only a few decades ago. The Section on Intellectual Property Law of the Association of American Law Schools was not even founded until the early 1980s, and the creation of intellectual property specialty programs has been only a recent phenomenon. As senior legal scholars reminisce, early in their career, they would have been lucky to find a school that would allow them to teach a class on intellectual property law. Although intellectual property law teaching has come of age in the past decade, international intellectual property law courses remain nonexistent in more than half of American law schools. Notwithstanding this limited interest, the momentum has picked up quickly, and international intellectual property law is slowly emerging to become a staple in the core intellectual property law curriculum.

As part of the Symposium on Teaching Intellectual Property Law, this essay reflects on the teaching of international intellectual property law. It begins by identifying three different stages in the development of an international intellectual property law course. Going from the pre-TRIPs era to the post-TRIPs era, this essay shows how the growing complexity of the international intellectual property regime has made teaching the subject increasingly challenging. The essay then focuses on this challenge and examines why international intellectual property law is taught in the first place, what materials teachers can cover, and how they can effectively present those materials. By offering both questions and suggestions, this essay invites readers to evaluate and rethink the design of an international intellectual property law course. It concludes with some bonus considerations that may be relevant to both teachers and administrators.

Abstract:
In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken together, all of these conventions, declarations, laws, and policy discussions have helped establish a new international framework for the protection of intangible cultural heritage.

As part of the "Law Without Borders: Current Legal Challenges Around the Globe" Symposium, this article disaggregates intangible cultural heritage into its two components: intangible heritage and cultural heritage. The article explores the similarities and differences between the protection of cultural relics and that of intellectual property. It then examines eight different objectives for establishing the new framework. It also discusses four different challenges confronting the implementation of this framework: (1) the mode of protection; (2) the power to define protectible subject matters; (3) the means to identify those materials; and (4) the justifiability of international intervention. The article concludes by revisiting a crucial similarity between the protection of cultural relics and that of intellectual property - the need for enforcement and the related challenges. It suggests that countries with significant problems in both areas are likely to provide rich and fertile grounds for future research.

Abstract:
The year 2005 marked the tenth anniversary of the Agreement on Trade-Related Aspects of Intellectual Property Rights. Since it entered into effect on January 1, 1995, the Agreement has impacted a wide variety of areas, including agriculture, health, the environment, education, culture, competition, free speech, democracy, and the rule of law. Today, intellectual property protection has been considered a major issue in both the domestic and international policy debates, and policymakers have actively explored intellectual property issues in many different international regimes. These regimes range from public health to human rights and from biological diversity to information and communications.

As an introduction to the International Intellectual Property Regime Complex Symposium, this Essay advances three conceptual notions that seek to illuminate the growing complexity of the current international intellectual property regime. The Essay begins by outlining the international enclosure movement, in which the policy space of countries, usually those in the less developed world, is increasingly enclosed in the name of international harmonization. It then examines the concept of the international intellectual property regime complex, a term I coined to denote a larger conglomerate regime that includes not only the traditional area of intellectual property laws and policies, but also the overlapping areas in related regimes or fora. The Essay concludes by focusing on the rather schizophrenic positions taken by policymakers in response to conflicts and competing interests within a country.

Abstract:
Most discussions on the public health implications of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights focus on the right of less developed countries to issue compulsory licenses and the need for these countries to exploit flexibilities within the TRIPs Agreement. However, there are other means by which countries can enhance access to essential medicines. To provide an illustration of these other means, this article explores the possibility for greater collaboration among the BRICS countries (Brazil, Russia, India, China, and South Africa) and between these countries and other less developed countries.

This article begins by offering a brief discussion of each BRICS country in the area of international intellectual property protection. It advances the hypothesis that, if the BRICS countries are willing to join together to form a coalition, it is very likely that the resulting coalition will precipitate a negotiation deadlock similar to the historic stalemate between developed and less developed countries before the negotiation of the TRIPs Agreement.

The article, nevertheless, questions whether the BRICS countries can build a sustained coalition in light of their very different historical backgrounds; the divergent levels of political, social, economic, and cultural developments; and the well-documented historical failures for less developed countries to build or maintain effective coalitions. Taking these challenges and potential hurdles into account, this article contends that it may be more realistic for less developed countries to enter into alliances with one or more of the BRICS countries.

The article then highlights the role that the BRICS coalition or partial BRICS alliances can play in the international intellectual property regime. It discusses four coordination strategies through which less developed countries can strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decisionmaking in the international intellectual property regime. It concludes with a discussion of the various challenges confronting the creation and maintenance of partial BRICS alliances.

Abstract:
Information is the lifeblood of a knowledge-based economy. The control of data and the ability to translate them into meaningful information is indispensable to businesspeople, policymakers, scientists, engineers, researchers, students, and consumers. Having useful, and at times exclusive, information improves productivity, advances education and training, and helps create a more informed citizenry. In the past two decades, those who collected or obtained access to a large amount of data began to explore ways to use the collected data as an income stream. Because the then-existing laws did not offer adequate protection for that particular purpose, they actively lobbied for stronger protection of their data assets.

As part of the Data Devolution: Corporate Information Security, Consumers and the Future of Regulation Symposium, this essay recounts the development of two new forms of data protection: sui generis database protection and data exclusivity. It also discusses the concerns raised by the undemocratic processes used to develop such protection. It explains why policy laundering and backdoor lawmaking are harmful to both the United States and the larger international community. The essay then offers suggestions on how to recalibrate the balance of the intellectual property system. It concludes with a plea for caution concerning the development of new intellectual property rights to protect data, drawing on the European Commission's recent evaluation of the EC Database Directive.

Abstract:
The Agreement on Trade-Related Aspects of Intellectual Property Rights, which established the minimum standards for the protection and enforcement of intellectual property rights for WTO members, remains one of the more controversial international intellectual property agreements that have entered into force. Although that Agreement embraces a highly problematic super-size-fits-all approach, it includes a number of safeguards and flexibilities to facilitate economic development and to protect the public interest. Articles 7 and 8, in particular, lay out explicit and important objectives and principles that can play important roles in the interpretation and implementation of the Agreement.

Presented at the 2009 Santa Fe Conference, this article begins by tracing the origins and development of Articles 7 and 8 of the TRIPs Agreement. It then examines the normative content of these provisions while highlighting the interpretations made by WTO panels and the Appellate Body as well as the implications of the two Doha declarations.

The article concludes by exploring five different ways in which Articles 7 and 8 can be used to facilitate a more flexible interpretation and implementation of the TRIPs Agreement: (1) as a guiding light for interpretation and implementation; (2) as a shield against aggressive demands for increased intellectual property protection; (3) as a sword to challenge provisions that overprotect intellectual property rights or tolerate their abuse; (4) as a bridge to connect the TRIPS regime with other intellectual property or related international regimes; and (5) as a seed for the development of future international intellectual property norms.

Abstract:
In recent cases, the United States Supreme Court has shown great care and vigilance in protecting free speech on the Internet. It is therefore common to take for granted the Court's protective stance on protecting free speech on the Internet. After all, the Internet is the new, new thing; it deserves the Court's utmost attention and protection. However, when these cases are juxtaposed with the Court's earlier cases concerning free speech and free press protections in the motion picture - the new, new thing of the past century - the two lines of cases reveal that the Court has taken a dramatic different approach in its treatment of new technologies. The study of these earlier cases not only enables one to gain a greater appreciation of the Court's current protective stance toward the Internet, but also leads one to wonder whether the Court's different approaches could be attributed to the complex interplay of law, technology, and society.

As part of the Symposium on a general theory of law and technology, this article begins by tracing the development of free speech and free press protections of motion pictures. Although the article recounts the painful history of movie censorship in the first half of the twentieth century, it does not seek to rehash the many arguments made by First Amendment scholars elsewhere. Rather, it offers a thick description to show that legal, technological, and social factors have both shaped and been shaped by each other and how a confluence of these factors affected the free speech and free press protections of motion pictures.

The article then offers three deterministic accounts to explain the Court's different treatment of the Internet: technological determinism, legal determinism, and social determinism. Showing that none of these accounts fully explains the Court's differing approach in the recent Internet cases, the article underscores the need for a holistic and integrated approach to the study of law, technology, and society. This Article concludes by offering some preliminary observations on what a general theory of law, technology, and society should and should not be about. It also explains the importance of the development of such a theory.

Abstract:
In the past decade, the European Communities and the United States have pushed aggressively for the development of bilateral and regional trade agreements. Termed economic partnership agreements by the European Communities and free trade agreements by the United States, these instruments seekt to transplant laws from the more powerful signatories to the less powerful ones. In the intellectual property area, these agreements have been fairly controversial. By introducing laws that go beyond the multilateral standards required by the TRIPS Agreement, these agreements have ignored the local needs, national interests, technological capabilities, institutional capacities, and public health conditions of many less developed members of the WTO.

Although the use of bilateral and regional trade agreements is not limited to the European Communities and the United States, the scholarly literature thus far has focused mostly on these agreements. To fill the void, this chapter examines closely the bilateral and regional trade agreements established by China. It begins by examining the underlying goals of these Sino trade agreements (STAs) and the negotiation strategy behind the development of the agreements. Using the New Zealand-China Free Trade Agreement as an illustration, the chapter points out that the STAs thus far have had very limited coverage of issues concerning the protection and enforcement of intellectual property rights. In light of such limited coverage, this chapter then explains why China has kept a low profile in the international intellectual property arena. It nevertheless concludes by arguing that China needs to take up a more assertive role in shaping global intellectual property norms.

Abstract:
In October 2004, Argentina and Brazil introduced a proposal to establish the WIPO Development Agenda. Although scholars have focused primarily on this agenda, as well as the WTO Doha Development Agenda, development agendas have also been established at other international fora, such as those governing public health, human rights, biological diversity, food and agriculture, and information and communications. Interestingly, these development agendas bear strong resemblances to another set of development agendas less developed countries advanced in the 1960s and 1970s. Bringing together these two sets of development agendas, this article examines whether the present agenda can avoid the path of its ill-fated predecessor.

Delivered as the opening lecture of the Dean's Lecture Series, this article begins by tracing the development of the Old Development Agenda. It discusses the drafting of the Stockholm Protocol, the formation of WIPO as a U.N. specialized agency, the establishment of the draft International Code of Conduct on the Transfer of Technology, and the revision of the Paris Convention. The article then examines the different new development agendas recently established at the WTO, WIPO, and other international fora.

The article concludes with six brief observations concerning the similarities and differences between the Old and New Development Agendas -- with a focus on the various players, fora, and issues involved in the two agendas, the changing political environment surrounding the development of the New Development Agenda, the growing public awareness of intellectual property issues in the past decade, and the emergence of new ideas, concepts, and rhetorical frames that have been used to boost the New Agenda.

This article suggests that significant differences exist between the Old and New Development Agendas and that these differences may provide hope for greater economic, social, cultural, and technological development in the less developed world. It nevertheless cautions that, if this hope is to be realized, less developed countries and their supporters need to take the New Development Agenda seriously and mobilize before they lose their momentum.

Abstract:
The adoption of the WIPO Development Agenda in October 2007 has provided less developed countries with a rare and unprecedented opportunity to reshape the international intellectual property system in a way that would better advance their interests. However, if these countries are to succeed, they need to take advantage of the current momentum, coordinate better with other countries and nongovernmental organizations, and more actively share with others their experience, knowledge, and best practices.

Commissioned by the EDGE (Emerging Dynamic Global Economies) Network of the University of Ottawa, this paper begins by explaining how building intellectual property coalitions for development (IPC4D) can help less developed countries strengthen their collective bargaining position, influence negotiation outcomes, and promote effective and democratic decision making in the international intellectual property regime. The paper then discusses four coordination strategies that can be used to develop these coalitions. It concludes with a discussion of the various challenges confronting the creation and maintenance of these coalitions.

Abstract:
As an introduction to the inaugural issue of the new WIPO Journal, this essay highlights some of the key recent developments in the intellectual property field. The essay begins by discussing the increasingly complex, and at times incoherent, international legal order governing the protection and enforcement of intellectual property rights. It shows how much the system has been transformed since the launch of the Paris and Berne Conventions in the 1880s.

The essay then examines the increasingly polarized debate on intellectual property law and policy. Although the debate’s growing divisiveness is understandable, given the rapid expansion of intellectual property rights and the highly contentious nature of boundary drawing, this essay pleads for a more constructive debate that is based on empirical research, historical and comparative analyses, interdisciplinary insights, and holistic perspectives.

Finally, the essay concludes by pointing out that the international intellectual property system is not facing a crisis, as some commentators have claimed. Rather, it has been presented with a new opportunity. Many high-income developing countries are now approaching a crossover point at which they switch over to the more promising side of the intellectual property divide - the proverbial gap between those who benefit from the existing intellectual property system and those who do not. This crossover process is likely to have significant implications for the future development of the intellectual property system.