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Introduction

The prospect of creating a global, uniform system of intellectual property right (IPR) protection faces a formidable challenge given the differences in national IPR regimes worldwide. Although the fundamental premise for granting property rights to inventors and artists—that is, to promote creativity and innovation ultimately to the public's benefit—is a common theme in many, if not most, national systems, the legal regimes of each country have evolved to reflect the culture, philosophy, and commercial history of its people. As Paul David illustrates in Chapter 2, the historical development of intellectual property law has been influenced by perceived national needs, such as to increase technology transfer from abroad, to encourage indigenous innovation, to sustain and regulate individual industries, and to enforce an author's natural rights in his or her creation. As a result, IPRs must be seen as unique policy tools engineered to satisfy national, not international, needs and capacities.

The essays in Chapter 6 highlight some of the major issues concerning the IPR systems in Japan, the European Community (EC), India, and the newly industrializing economies. They describe the specific factors motivating change in each of the national or regional legal structures, and they address the likely reaction of those systems to increased pressure for harmonization.

Although disparities between the developing and the industrialized worlds often receive the most public attention, nations that hold common assumptions about the benefits of strong IPRs also differ markedly in the implemen-



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Global Dimensions of Intellectual Property Rights in Science and Technology Introduction The prospect of creating a global, uniform system of intellectual property right (IPR) protection faces a formidable challenge given the differences in national IPR regimes worldwide. Although the fundamental premise for granting property rights to inventors and artists—that is, to promote creativity and innovation ultimately to the public's benefit—is a common theme in many, if not most, national systems, the legal regimes of each country have evolved to reflect the culture, philosophy, and commercial history of its people. As Paul David illustrates in Chapter 2, the historical development of intellectual property law has been influenced by perceived national needs, such as to increase technology transfer from abroad, to encourage indigenous innovation, to sustain and regulate individual industries, and to enforce an author's natural rights in his or her creation. As a result, IPRs must be seen as unique policy tools engineered to satisfy national, not international, needs and capacities. The essays in Chapter 6 highlight some of the major issues concerning the IPR systems in Japan, the European Community (EC), India, and the newly industrializing economies. They describe the specific factors motivating change in each of the national or regional legal structures, and they address the likely reaction of those systems to increased pressure for harmonization. Although disparities between the developing and the industrialized worlds often receive the most public attention, nations that hold common assumptions about the benefits of strong IPRs also differ markedly in the implemen-

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Global Dimensions of Intellectual Property Rights in Science and Technology tation of those rights. The United States, for example, stands alone in the industrialized world with its practice of granting patents to the ''first to invent," rather than the "first to file." Japan, whose level of IPR protection is comparable to that of the United States, uses a narrow interpretation of patent claims, which encourages inventors to cross-license. The Japanese system may be better suited to protecting incremental innovation rather than major, sweeping inventions. Detractors claim that the Japanese system favors Japanese inventors, whose industrial power has been based on seizing the commercial value of an invention by refining and building on breakthroughs that already exist. James Armstrong, who discusses the IPR system of Japan in Chapter 6, concludes that it does not present an insurmountable barrier to eventual harmonization with U.S. practices. He points out that the law in both nations is dynamic and flexible, and he argues that, however different the two systems, the overriding determinant of eventual harmonization will be the fact that both view strong IPRs as essential to a modern industrial economy. Both Japan and the United States will have to adjust as technology and the world economy change. In his discussion of the European Community in Chapter 6, Bryan Harris points out that even when harmonization is a collectively established objective, it may be constrained by other factors. The EC's explicit objective of achieving harmonization has been thwarted by politics, industrial opposition, the question of whether harmonization will truly maximize the collective economic interests of the EC, and the sovereignty concerns of the EC's member countries. Suggesting that the EC represents a small scale version of the eventual global debate on harmonization, Harris submits that harmonization for its own sake cannot be justified without a greater understanding of basic issues, such as the relationship between the economic interests of intellectual property owners and of intellectual property users and the question of whether IPRs continue to be a consistent and appropriate legal and economic concept in the face of technological change and the development of international industrial relationships. Describing India's IPR system in Chapter 6, Deepak Nayyar notes that like all countries, India strives to strike a balance between the interests of producers of scientific and technological knowledge and those who use it. That particular balance point is determined, in India's view, by a nation's level of economic development. Acknowledging the importance of technology for development, Nayyar argues that India faces a resource availability problem that can be solved only within a framework of IPR policies that favor the dissemination of technology. Nayyar claims that the "Dunkel draft," a proposition put forward in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) discussions on Trade Related Aspects of Intellectual Property Rights (TRIPS), ignores the essential philoso-

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Global Dimensions of Intellectual Property Rights in Science and Technology phy of the systems of India and other LDCs, and calls for standardization at a much higher level of protection than now exists in India. He does, however, emphasize the importance of considering the TRIPS discussions in the larger context of the multilateral trade negotiations, with their potential for cross-sectoral trade-offs. In his section of chapter 6, Carlos Primo Braga focuses on the newly industrialized economies (NIEs). He postulates that the recent strengthening of IPR laws among NIEs is a product of the historical correlation of stronger IPR laws with rising levels of economic development and the external trade retaliation pressures of the United States and Europe. He suggests that the NIEs have found it in their economic self-interest to become more closely aligned with the practices of their major trading partners, even beyond what might be typical for their stage of economic development. In Primo Braga's view, this trend is likely to continue. In Chapter 7, Jacques Gorlin presents an overview of the IPR provisions currently under discussion in the Uruguay Round of the GATT and the World Intellectual Property Organization (WIPO). The push for increased IPR protection through these forums has been strongly opposed by the less developed countries (LDCS), whose IPR systems diverge the most from what has been proposed. In many LDCs, IPR laws are designed to move innovations quickly into the public sector, and they give the inventor only brief and restricted rights to the invention. In general, patent terms are shorter, and compulsory licensing may be used to force a transfer of technology by the inventor, particularly if the patent is not being "worked" in the country. Patents may not be granted for innovations in the fields of food and medicine, because food and medicine are considered to be common rights of all peoples. The rationale of developing countries is that an innovator should not be allowed to maximize individual profit when the nation as a whole is poor and needy. Yet critics observe that a weak level of protection eliminates altogether the incentive to apply for patents, bring products to market, and ultimately innovate, which is the basis for economic growth. Chapter 7 also focuses on the provisions of the TRIPS Dunkel draft. Included among the key issues of the proposal are the establishment of a 20-year term for patents, limits on the use of compulsory licensing, and the creation of an enforcement mechanism. The provisions would allow for an adjustment period for LDCs. Although the proposal was tabled in December 1991, no agreement has yet been forthcoming. Gorlin suggests that the fate of the IPR package is tied to the success of the overall GATT discussions, which are to be concluded in 1993. The chapters in this section do not discuss in detail the specific provisions that separate one national system from another. Rather, they provide a representative picture of the source of national interests and rationales that resist the idea of international harmonization, as well as the forces that

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Global Dimensions of Intellectual Property Rights in Science and Technology are creating pressure for movement in that direction. All nations, including the United States, recognize the growing importance of technology and innovation as elements of economic success. The challenge is to find common ground among national IPR regimes that can form the basis of an international system that can offer the benefits of technology and innovation to all.