Russia & Legal Harmonization: An Historical Inquiry into IP Reform as Global Convergence and Resistance

Abstract

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with a specific examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence and tension between state ideology, positive law, and “law in action.” The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has been one of the largest hurdles for Russia’s prolonged accession to the WTO, these historical precedents may help to explain the apparent theoretical or political disconnect between the WTO and Russia.

If Russian policymakers and many Western analysts agree that Russia has complied with all necessary structural adjustment reforms for WTO accession (including reforming its IP legislation), then we must search for deeper points of contention between Russia and the West. One point of departure, I posit, is Russia’s lingering inability to convey adherence to general international law, broadly conceived.

Thus, this Article re-conceptualizes this link between domestic and international legal orders by connecting the IP debate to broader debates over the nature of international law in the Soviet and post-Soviet space. Specifically, part one examines how Soviet theorists were able to reconcile (or not) IP regulation with Marxist ideology and socialist international law. Part two surveys the main IP law reform projects in post-Soviet Russia from 1992 to 2006, with particular emphasis on harmonization with global legal standards. The second part of this Article also provides a brief comparative analysis of Russia’s latest IP law (effective 2008) versus copyright protections in U.S. law and the 1971 Berne Convention. The Article concludes with an overview of doctrinal debates within Russia over harmonization, WTO accession and international law. These debates shed light on the development of local resistance to further legal harmonization efforts, an issue of immediate relevance not just for policymakers working with Russia, but for broader law and development debates.

Keywords: Russian Law, Legal Harmonization, TRIPS, Russia and WTO, Russian Intellectual Property Law