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16
Global Intellectual Property Rights Issues in Perspective: A Concluding Panel Discussion

ROBERT E. EVENSON

The current movement toward unified, global intellectual property rights has gained considerable momentum. U.S. government agencies are leading the movement, and most market-oriented countries are supporting the U.S. position in the General Agreement on Tariffs and Trade (GATT) negotiations and other venues. Developing countries, on the other hand, are resisting, both formally in international forums and informally through less-than-aggressive administration of their own intellectual property right (IPR) legislation. As a result, considerable international tension and animosity exist between most developing countries and many developed countries—notably the United States—over bilateral trade law actions and the GATT negotiations.

The traditional Paris, Berne, and other international conventions are functioning quite well to achieve IPR compliance between developed countries. They are not functioning to achieve compliance between developing and developed countries, however. Lax administration of IPR laws and acts of "piracy" largely were overlooked until several years ago, when U.S. interest groups brought them into the policy domain. The resulting shift of IPR issues into the domain of trade law and policy has had important consequences for both developed and developing countries. These changes have been achieved at some diplomatic costs. A GATT agreement will lower these costs.



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Global Dimensions of Intellectual Property Rights in Science and Technology 16 Global Intellectual Property Rights Issues in Perspective: A Concluding Panel Discussion ROBERT E. EVENSON The current movement toward unified, global intellectual property rights has gained considerable momentum. U.S. government agencies are leading the movement, and most market-oriented countries are supporting the U.S. position in the General Agreement on Tariffs and Trade (GATT) negotiations and other venues. Developing countries, on the other hand, are resisting, both formally in international forums and informally through less-than-aggressive administration of their own intellectual property right (IPR) legislation. As a result, considerable international tension and animosity exist between most developing countries and many developed countries—notably the United States—over bilateral trade law actions and the GATT negotiations. The traditional Paris, Berne, and other international conventions are functioning quite well to achieve IPR compliance between developed countries. They are not functioning to achieve compliance between developing and developed countries, however. Lax administration of IPR laws and acts of "piracy" largely were overlooked until several years ago, when U.S. interest groups brought them into the policy domain. The resulting shift of IPR issues into the domain of trade law and policy has had important consequences for both developed and developing countries. These changes have been achieved at some diplomatic costs. A GATT agreement will lower these costs.

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Global Dimensions of Intellectual Property Rights in Science and Technology Yet is it realistic for the United States to hope that enforcing IPRs through trade law will solve the problems inherent in the older system? Is it really the case, as with education and perhaps some trade concessions, that developing countries will join the "club" in support of unified, global IPRs, or are there factors that constitute such real differences in economic interests between developing and developed countries as to threaten this goal? As one considers these issues for developing countries, it is important to remember that IPRs are not designed merely to facilitate the transfer or export of technology from one country to another. They are designed to stimulate R&D and inventive activity in all countries. It is relevant to ask whether they actually do this in developing countries. They also are designed to stimulate the removal of secrecy from ideas so that those ideas can facilitate and stimulate other inventions. Finally, IPRs are limited rights. The seller (exporter) of IPRs should not expect full capture of all the economic returns associated with an IPR. Claims of losses by exporters of IPR-protected items to developing countries should be assessed accordingly. As a basis for discussing these issues further, summary data comparing relevant economic variables across groups of countries are presented in Table 16-1. Data are reported for six types of developing economies. It should be obvious that developing countries encompass many types of economies. The six categories in the table are based on work by Weiss (1990). These categories of technology capacity are not intended to be "stages," although they do reflect different levels of institutional development. They are basically differentiated by this capacity to develop and implement technology. These classes offer a broader and better sense than is usually provided of the range of economies encompassed within the term developing economies. Developing countries range from traditional economies (la) through economies that are regarded as nearing newly industrialized status (2b), and those newly industrialized countries (NICs) that are regarded as being on the threshold of global technological competitiveness (2c). It is important to note that all of the Stage 1 countries (roughly 60 to 70 countries) for the most part do not operate intellectual property systems of any real substance. Most, however, have some form of intellectual property system. Bangladesh, for example, has a patent law and a patent office, and it administers a patent system. It has only recently added a second domestic examiner, however, which is an index of its limited capacity to stimulate or examine technology agreements. Most of the countries in Stage 1 do not have adequate staffing or court systems to administer IPR laws according to the standard expected by the United States and GATT negotiators. The situation changes for the Stage 2 countries. Table 16-2 provides several indicators to illustrate this. The indicators are organized by using

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Global Dimensions of Intellectual Property Rights in Science and Technology TABLE 16-1 Representative Countries at Various Stages of Scientific and Technological Development Technology Capacity Classes Asia and Near East Latin America and Caribbean Sub-Saharan Africa Stage 1: Emerging Islands of Modernization 1a. Traditional technology-based economy Yemen, Laos Surinam Equatorial Guinea 1b. First emergence Nepal, Papua New Guinea Haiti, Guyana Ethiopia, Burkina Faso 1c. Island of modernization Sri Lanka, Tunisia, Indonesia Jamaica, Peru Kenya, Ivory Coast, Zimbabwe Stage 2: Struggle for Mobilization and Mastery 2a. Mastery of conventional technology Iran, Malaysia, Turkey Colombia, Argentina   2b. Transition to newly industrialized country India, Thailand, Hong Kong Mexico Republic of South Africa 2c. Threshold of technological competitiveness Singapore, Taiwan, South Korea Brazil   the same classifications as in Table 16-1, as well as categories representing the recently industrialized Mediterranean countries (e.g., Spain) and mature, developed countries in the Organization for Economic Cooperation and Development (OECD). The extraordinary growth performance of countries in categories 2b and 2c, particularly their industrial growth, is apparent. They have outperformed poorer countries and mature OECD countries by a large margin. Turning to R&D intensities in the public sector (i.e., R&D spending relative to production value), note that agricultural experiment stations have been established throughout each of the Stage 2 countries and, in fact, have been quite effective. The poorer countries do have R&D capacity in public sector agricultural fields. The Stage 1 countries, however, have virtually no industrial R&D capacity. Some have a small capacity in the public sector, but there is little evidence that it is very effective. Private sector R&D begins to be important in the Stage 2 countries. The NICs spend roughly 1 percent of the value of

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Global Dimensions of Intellectual Property Rights in Science and Technology their industrial product on R&D, which is well below the OECD standard of 2+ percent. It is also below the standard of the recently industrialized Mediterranean group. R&D personnel are relatively low priced in these economies, however, so the ratio of scientists and engineers to industrial product is comparable to that in developed countries. Most of the Stage 2 countries do not make large investments in science, and the poorer countries make almost none. Data on inventions are instructive, even if inventions are not strictly comparable among countries. Inventions per inventor are clearly highest in the NICs, which have about twice as many inventions per inventor as do OECD countries. They are lowest for the poorer developing countries. It is also clear from Table 16-2 that less developed countries do not export technology. They are large importers of technology. Some of the advanced NICs, such as South Korea, Taiwan, and Brazil, do export some technology, but the poorer countries have no such export capability. This has implications for the way traditional intellectual property conventions have functioned. For all practical purposes, the international IPR conventions have not worked well for any of the developing countries. I have argued elsewhere (Evenson, 1990) that this is largely because they do not have exporters' interests to protect. They also have little to gain from secrecy removal because foreign inventions are already public. They are not threatened by loss of rights in other countries because they simply do not have such rights. Most of their modest invention is local, imitative, adaptive, and well suited to their own economies. This is a very important type of invention, but conventional patent systems often do not provide satisfactory protection because of their high "inventive step" requirements. A primary condition for successful IPR piracy is that the pirating country has competence. This rules out most Stage 1 economies, which aspire to be pirates. After all, IPR piracy is closely associated with development success. Stage 1 countries do not, however, have the engineers and scientists to reverse engineer and copy complex inventions, although they can engage in simple counterfeit production. Most of the countries in categories 2b and 2c do have the competence to pirate more complex technologies. If a country is competent and has few exporters' rights to protect, it can engage in some pirating of IPRs under the traditional IPR conventions, which have few sanctions to punish piracy. It is important, however, to make a distinction in this regard between copyrights, trademarks, and inventions. For developing countries, inventions are more important to economic growth than designer clothes or other goods protected by trademarks and copyrights. Developing countries have a vital interest in using IPRs to stimulate domestic invention. They have a lesser stake in the stimulation of local trademarked goods.

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Global Dimensions of Intellectual Property Rights in Science and Technology TABLE 16-2 Growth and R&D Indicators by Type of Economy   Economy Type   Traditional (1a) First Emergence (1b) Island of Modernization (1c) Mastery of Conventional (2a) Transition (2b) NIC (2c) Recently Industrialized Mediterranean Mature OECD REAL GROWTH 1980s (Average annual percent increase in GNP) Agriculture 2.20 2.20 2.50 3.80 2.80 3.10 2.50 1.40 Industry 2.00 2.10 2.30 5.10 6.00 8.10 3.50 2.20 Total 2.50 2.60 2.80 4.70 5.30 7.10 3.00 3.00 GNP per capita (Average annual growth rate 1965-1990) Total 0.50 0.50 1.50 2.40 2.50 6.10 2.80 2.50

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Global Dimensions of Intellectual Property Rights in Science and Technology R&D INTENSITIES Public Sector Applied R&D Agriculture 0.40 0.40 0.40 0.60 0.70 0.80 0.80 1.50 Industry 0.10 0.10 0.10 0.15 0.40 0.30 0.25 0.30 Basic R&D Science 0.02 0.02 0.03 0.04 0.10 0.20 0.25 0.40 Private Sector Applied R&D Agriculture 0.00 0.00 0.01 0.05 0.10 0.20 0.50 1.50 Industry 0.00 0.00 0.02 0.05 0.05 1.00 1.20 2.30 INVENTION INDICATORS Inventions/ Inventora 0.05 0.10 0.50 0.30 0.20 Import Shareb 0.90 0.95 0.81 0.64 0.80 0.31 Export Ratioc 0.00 0.00 0.05 0.10 0.20 1.70 a Average ratio of patented inventions per scientist and engineer engaged in R&D. b Proportion of domestic patents granted to foreign inventors. c Ratio of patents granted abroad to patents granted in home country.

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Global Dimensions of Intellectual Property Rights in Science and Technology Have developing countries actually used their own IPRs to good purpose in this regard? The answer would appear to be that almost all of them have failed to use IPRs in their own best interests. They have allowed conflict over the terms of importing technology to overshadow the possible benefits that they might realize by developing domestic inventive competence and capacity. Their response all too often has been to have laws on the books, and a nominal system of enforcement with little funding, in the hope that this will enable them to avoid paying "unfair" licensing fees. For easily pirated, counterfeit goods, weak IPRs in the past allowed certain domestic groups to gain. The NICs and the near-NICs have used IPRs to facilitate the development of domestic inventive competence and capacity, but IPRs have not generally been their major policy instruments for this purpose. Most important, they have maintained a trade policy regime that has stimulated exporters of technology to sell to them, and they have purchased huge amounts of technology at low prices. They also have engaged in some piracy, although the extent of their piracy is usually overstated. What next? Is the enforcement mechanism associated with recent initiatives, including the current GATT round, going to work better than past mechanisms in developing countries? There is certainly going to be much more concern, much more policy dialogue on intellectual property rights, than previously. The real interest of countries without exporters' rights to protect, however, is likely to be as limited as it has been in the past. The shift to using trade rights as a means to protect IPRs is probably going to be the new enforcement regime for most developing countries. Will developing countries move aggressively to use IPRs to their own advantage? Very few policymakers in developing countries are asking whether IPRs actually stimulate domestic invention and capacity development or whether they improve the ability of developing countries to buy technology on better terms. There is also a related question about whether the willingness of foreign technology suppliers to provide technology to developing countries is improved by stronger IPRs. The literature does not show strong correlations between direct foreign investment and the strength of IPRs. The natural comparative advantage of most developing countries is to imitate—in the direction dictated by that country's resources. In the agricultural sector, the scope for adaptive invention is large. Almost all agricultural biological inventions (e.g., plant varieties) are, in fact, so location specific that there is little importing of technology. Utility models are a way of encouraging imitative inventions. Current developments in IPRs do pose some threats to public sector R&D institutions. Agricultural research systems in the United States are perceived to be threatened by the expansion of IPRs in the plant and animal

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Global Dimensions of Intellectual Property Rights in Science and Technology area, particularly in the area of protecting naturally occurring genetic resources. The patent protection of parent material and genes in plants—as well as, to some degree, the finished varieties of crops—could block public disclosure of research results and the free flow of genetic resources. Plant breeders' rights, the system used in the United States to protect plant varieties, have by and large avoided this problem. Experience has shown that agricultural scientists have accommodated themselves to the use of breeders' rights. However, the real threat comes from the growing pressure to provide full patent protection to plants and animals, and to block some of the genetic resource exchanges that occur in standard scientific and research systems. For the poorest countries (1a), the only capacity they have for R&D (other than what they purchase through technology contracts) is in the agricultural sector. It is important that their researchers not be cut off from vital flows of genetic resources. As developing countries recover from the ''surprise attack" launched by the United States and converted into the GATT initiative, they may be able to develop a more positive set of tactics and programs than they have managed to date. For the short run, they could bargain aggressively with the developed countries for trade concessions, in return for strengthened domestic treatment of foreigners' intellectual property. Developing countries have not been very good at this. Their stance has been one of continued resistance to strengthening IPRs and including them in the GATT. They would probably do better by acknowledging that IPRs are going to be part of trade laws and policy, and then proceeding to bargain for concessions. For the longer run, developing countries will have to face up to the question of what represent optimal IPRs from their national perspective. The current debate and conflict are over IPRs that serve the interests of developed countries. There is a great deal of latitude for the better use of existing IPR instruments, the development of new IPR instruments, and more effective administration of IPR systems. Consider the existing IPR regime. The natural comparative advantage of developing countries depends on where they are in the technology capacity classification. Stage 1 economies can do some adaptive inventing, but they are not internationally competitive. They should be developing the capacity to purchase technology more effectively, learn from experience, and develop minor modifications. The utility model (petty patent) will suit this purpose well. It should be strengthened in most developing countries to reward "blue-collar" invention and to stimulate the incentive to seek new products and process improvements systematically. Many of the developing countries currently purchase technology through complex turnkey arrangements with foreign firms. They not only pay a high implicit price for the technology they have purchased but often, in the process, lock themselves into that technology setting for a long period of

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Global Dimensions of Intellectual Property Rights in Science and Technology time. Stronger IPRs probably would improve the terms of contracting for firms operating in category I economies. That is, the recognition of IPRs might clarify the terms of contracting and lower the cost of the entire package. For the Stage 2 economies, where inventive capacity exists, stronger IPRs should stimulate the development of this capacity. Again, the utility model can be strengthened to make it, in effect, a national IPR that is almost as strong as the conventional patent. Countries might seek to define an "imitation" patent, in which a foreign and a national pair of corporations shares the rights. Such inventions may emerge from foreign investment partnerships. Developing countries will have to invest more in their IPR systems than is now the case. They will have to rely on international search services (i.e., to determine what technology has been protected) to a greater extent than they now do, and they will have to bring IPRs into their industrial policy mix in a positive and aggressive way if they are to realize their potential benefits. The current state of affairs is not optimal from a developing country point of view. Yet the system that is in the best interest of the United States and other developed countries is not also in the best interests of the developing countries unless the latter can gain large trade concessions in return for stronger IPRs for foreigners. The best response to the pressures placed on a developing country by bilateral trade and GATT negotiations will vary according to the extent of the country's scientific and technological capacity. For many countries that now have low capacity, it is unlikely that their IPR systems will change much over the next two decades, but more advanced countries will make IPR changes. If they can free themselves from their fixation on the international dimension of IPR policy, they can realize considerable gains. DAVID C. MOWERY I have been asked to discuss the effects on investment and trade of a change in the IPR regime. My focus is on a few topics raised within that context and on the effects of a successful completion to the Uruguay Round package that included Trade-Related Aspects of Intellectual Property rights (TRIPs) and the other provisions being dealt with by the many negotiating groups at work in Geneva. Three reasons are discussed for suspecting that the near-term effects of an IPR agreement may be quite modest, particularly with respect to foreign investment and foreign investment flows among industrialized nations. Those three reasons are followed by a more speculative discussion of an additional issue—the likely welfare consequences for the United States of stronger domestic and international property rights protection. The IPR agenda of the Uruguay Round and the U.S. leadership

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Global Dimensions of Intellectual Property Rights in Science and Technology in bilateral and multilateral negotiations concerning IPRs complement recent initiatives to strengthen the rights of patent holders in the domestic economy as well. Predicting the effects of an IPR agreement, particularly on investment, requires that one rely on recent historical or empirical data. As Edwin Mansfield and others have suggested in this volume, these data are highly equivocal in the conclusions they support. Certainly, the existing empirical studies support the conclusion that within industrialized economies, and the United States in particular, the effects of IPRs on different industries vary quite substantially. By the same token, the importance of intellectual property protection, particularly patents, to different industries varies quite considerably, according to a survey conducted by Mansfield (1986) and an inquiry by a group of Yale economists (Levin et al., 1987) who surveyed industrial research managers on the importance of patents as a means of capturing value from new technologies. This evidence suggests that patent protection and other forms of formal intellectual property protection are most important in regard to pharmaceutical and chemical-related technologies. One implication of this finding is that some of the "side payments" necessary to reach the Uruguay Round trade agreement are likely to be made by U.S. industries that derive very little benefit from an IPR agreement. The textile industry, for example, does not rate highly in terms of the importance of patent protection. Yet the U.S. textile industry is likely to be required to provide additional market access in a Uruguay Round package. The distribution of interindustry benefits and costs associated with a Uruguay Round agreement that includes stronger IPRs will, therefore, set the stage for a lively domestic political debate over ratification of the package. The available data on the differential importance of IPRs across different industries are quite limited and quite dated in several important ways. As noted earlier, the United States is "flying blind" in regard to the costs, benefits, and overall effects of stronger IPR protection. What are the limitations of these data? Many of these studies focus on relatively large, multiproduct firms. They rarely devote comparable attention to small start-up firms in asking managers about the importance of items such as patents. The authors of the Yale survey have suggested that if more small firms had been included, formal instruments of IPR protection might have been given greater weight. If you ask start-up entrepreneurs about their critical assets, they will in many cases respond that their patent applications or the patents they have received are the key assets of the firm. Another problem with the results of the surveys is the fact that a patent that is not completely "airtight" may still assist in the creation of a more smoothly functioning market for intellectual property. The cross-licensing that has been quite widespread in the semiconductor and computer indus-

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Global Dimensions of Intellectual Property Rights in Science and Technology tries has been facilitated by patent protection. Patents reduce some of the frictions and simplify some of the negotiations over licensing and cross-licensing transactions so that even if a patent does not completely exclude others, it may still support the development of markets in technology. The third reason for caution about these surveys is the fact that they draw on managers' reactions during the late 1970s and early 1980s. This period predates the significant strengthening of the rights of patent holders in U.S. domestic courts that occurred with the creation of the Court of Appeals for the Federal Circuit, as well as other statutory and enforcement changes. Thus, the surveys reflect perceptions formed during an era of weaker domestic protection for IPRs. Arguably, were these surveys administered today, the results might differ because of the stronger enforcement and strengthening of patent holder rights that have occurred. This hypothesis is speculative, but it points up a very important research need, namely, the need to update and extend these surveys, both to cover a broader array of firms (software, for example, scarcely existed as an industry at the time the surveys were conducted) and to bring the changed environment more centrally into the responses of managers. Another area in which the evidence on IPRs is highly equivocal has also been mentioned both by Mansfield (Chapter 5) and by Primo Braga (Chapter 6), who noted the weak nature of the evidence that links investment flows, or even domestic R&D investment, and growth of gross domestic product to the strength of domestic IPR protection. This again reflects a number of problems in the available data. For one, it is not possible to disaggregate different types of foreign investment or to distinguish between R&D and marketing-related foreign investment, and so on, which makes the empirical evidence here extremely weak. A second reason to expect that the near-term effects of an IPR agreement may be quite modest is the likelihood that a Uruguay Round TRIPS settlement will have fairly modest effects on direct foreign investment, particularly among industrialized economies. Although it is possible to argue that stronger protection for patents and copyrights will strengthen international markets for technologies, reduce frictions and transaction costs, and so on, these markets will still be afflicted with a number of problems that stem from fundamental uncertainty about the characteristics of new technologies themselves. Licensing negotiations, for example, may involve small numbers of people in an environment with many possibilities for opportunistic behavior and withholding of information. These problems will not necessarily be eliminated by the creation, or enforcement, of stronger IPRs. In addition, the forces driving growth in direct foreign investment, particularly among industrialized economies and between industrialized and newly industrialized economies, are much broader and are certainly subject

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Global Dimensions of Intellectual Property Rights in Science and Technology MICHAEL BORRUS The previous chapters have provoked several observations and thoughts that I want to share. First, there has been a clear premise underlying this report, articulated by Armstrong (Chapter 8) and many others, that the science and technology world and its associated industrial activities are somehow globalizing. Now it is certainly true that the costs of technology development are rising substantially. At the same time, the useful life of products that embody a particular technology is getting shorter and shorter. The result is a need to establish and maintain some kind of global market position to sustain the pace of development by earning sufficient economic returns to keep the game going. A few data points are useful to illustrate this problem of rising costs and declining time for new technology development. Almost all high-technology companies agree that, based on their experience and spending patterns, developing new technology has become increasingly expensive. The ubiquitous silicon microchip provides an illustrative case. Half a decade ago, a leading-edge chip design could cost $1 million to $2 million; the associated process technology, $50 million to $100 million to develop; and the manufacturing facility, an additional $100 million. Today, chip designs are in the $10 million range, process technology ranges upward of $250 million to $500 million, and manufacturing is about the same. In short, development of new silicon technology costs on the order of 5 to 10 times its cost only five years ago. Moreover, the breadth of technologies that must be mastered seems to be widening at similar rates, which adds dramatically to the expense. Consider, for example, just the manufacture of leading-edge electronic products, such as a hand-held television-videocassette recorder or a notebook computer. Manufacturers have to master semiconductor, display, battery, packaging, precision mechanical and magnetic component, sensor, software, microdesign, and systems integration technologies, among others—a far more complex task than was required in producing the televisions or personal computers of just a decade ago. Pharmaceutical companies similarly have to master biotechnological approaches in addition to chemistry, a dramatic broadening of technological possibility and requirement. Simultaneously, the useful lives of high-tech products are declining dramatically, thereby reducing the available time to recoup the accelerating expense of technology development. Pharmaceuticals again provide a good example: injectable cephalosporins for bacterial infections were first introduced in 1965; 12 years later, sales of their second-generation successors finally surpassed those of the first generation, but the fourth generation began to overtake the third in only a year (Nevens et al., 1990). Similarly, electromechanical-turned-electronic products (e.g., typewriters, telecommu-

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Global Dimensions of Intellectual Property Rights in Science and Technology nication switches, cameras, and automotive subsystem controls) used to have a useful life measured in decades; today, such products barely last three to five years before successors overtake them. New workstation generations now appear roughly every two years, a far cry from the decade-long useful life of the mainframe computational capability they are subsuming. Also, Japanese automakers have cut the time of new automobile development and manufacture from eight to three years. These constraints mean that major developers of new high-tech products have to move fast to market, and attain global scale and position, just to have a chance of recouping and continuing their accelerating investments. The very same constraints push toward increased cooperative activity to defray the accelerating costs of new technology development and of global market positioning. These constraints also create the need for rapid, responsive, and worldwide regimes of intellectual property protection because innovators have so little time to stake their claims and recoup their costs before the next innovation lays waste to their invention. Although this discussion has presumed that these very real pressures equate to globalization, I think the premise is worth examining. I would first observe that in most technology-based industries, particularly electronics and informatics, "globalization" is in some sense the reciprocal of the massive erosion of the once-predominant position of U.S. science and technology, of U.S.-based production activities, and of U.S.-owned companies. In place of U.S. predominance, there are now major players, substantial leading-edge know-how, and new technologies resident in places outside the United States. These new capabilities and players seem to be clustering geographically, due to political and economic forces that range from the North American Free Trade Agreement to the trade and investment patterns of Japanese industry in East Asia. There seems to be regional clustering: a Japan and Asian cluster, an American cluster, a European cluster, and so on. The reality of regionalization, rather than the image of symmetrical globalization, seems to me to have very different implications for intellectual property protection—under common constraints of collapsing time and increasing cost—than the paradigm that has been assumed during much of this volume. For one thing, the know-how and technology that are increasingly resident in each of these regions are not equally accessible between regions. The relevant institutions of science and technology are quite different in their degree of openness and their accessibility from one region to the next. The ways in which domestic economies and industries are organized are quite different from one region to the next. The science and technology practices, and related production activities, are quite different from one region to the next. Not least, as the discussion has emphasized throughout, the intellectual property regimes (and enforcement) in each of these regions are quite different.

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Global Dimensions of Intellectual Property Rights in Science and Technology Technological know-how is much easier to access in some regions than in others. Compare, for example, the United States and Japan. In the United States, relevant institutions such as universities and national laboratories are quite accessible. The social networks of technical peers and engineers are relatively easy to enter. Skilled personnel, in particular, leave companies; they go from one to another. Short-term capital market constraints in the United States often force new companies—small companies with good ideas—to license technology quickly. Firms that embed certain kinds of technology and know-how can be acquired outright. Compare that with the situation in Japan, where the relevant mechanism for technology development is largely the corporate laboratories. They and the relevant social networks are much harder to penetrate. The same kinds of capital market constraints do not exist and, therefore, do not create the same kinds of motivations. Firms cannot be acquired as easily. People do not change jobs with the same frequency or ease. Technology thus tends to accrue locally in the United States, but it diffuses very rapidly. It tends to accrue locally in Japan also, but it does not diffuse nearly as rapidly and is not nearly as accessible. Equally important, in addition to being asymmetrically accessible, the technological know-how that is clustering in these different regions is also asymmetrically appropriable. In electronics and informatics, the kinds of capabilities that still exist at the leading edge in the United States (e.g., software, design, and architectural skills) are more easily appropriated by others. For example, software can be pirated with relative ease. Compare that ease of appropriation with the high-volume, flexible, rapid-cycle-time manufacturing skills that are embedded in the practices and the people of a Japanese corporation such as NEC. Those kinds of skills are much harder to appropriate. The differences in accessibility and appropriability are complemented by another major regional difference—the capacity of firms and economies to cycle the know-how to which they have access and to accumulate it over time into advances in science and technology, new development and new production capabilities. Again, there is substantial variation in the ability of firms, operating within different economic circumstances in different regions, to accumulate technology. Faster accumulation is likely in Japan and Asia, for example, than in the Americas. These regional differences exist at the same moment that time and cost constraints create the need to have closer collaborative relationships between regions. Thus, there are asymmetrical access, asymmetrical appropriability, and asymmetrical accumulation of technological know-how in different regions at a time when there is an increased need for sharing. Now, it seems to me that if your know-how is harder to appropriate, harder to access, harder to keep up with, and you are entering into shared relationships with companies from other regions that have know-how that is easier to appro-

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Global Dimensions of Intellectual Property Rights in Science and Technology priate, easier to access, and easier to keep up with, you are going to have a much greater capacity to appropriate returns from the technology in ways other than strict intellectual property protection. That is, your more exposed partner is likely to be far more interested in strict intellectual property protection than you are. Indeed, one of the main reasons for the recent U.S. interest in a strict international IPR regime is precisely this: as the relative competitive abilities—production skills, for example—of the relevant U.S. industries have eroded in international markets, so too has their relative ability to appropriate know-how in ways other than through strict intellectual property protection. What is left to protect—information, software, ideas—really can be accomplished only through a strict IPR regime. Given the asymmetries in regional technology access and appropriability at a time when there is a push toward shared activities, the most likely future result is increased international disputes. The issues are going to be phrased in terms of trade and investment, and they will incorporate intellectual property concerns. No matter how the Uruguay Round turns out, there will be many more disputes as these regional asymmetries begin to play out in real business relationships. The attempt to incorporate intellectual property concerns into the GATT can be seen, then, as a precursor to this future of increased conflict. However, there are going to be increasing pressures to deal with intellectual property disputes in venues and in ways that lie outside the traditional intellectual property mechanisms because existing intellectual property mechanisms appear to be ill-equipped to deal with this conflict. The bottom line is this: Inevitably, increased protection will always lag the pace and costs of technological advance and the controversies that regionally asymmetrical access and appropriability are going to generate. For that reason, the U.S. approach seems to me to be quite defensive, trying to hold ground by increasing intellectual property protection. Given the potential controversies that are at stake, the need for shared research and development, the increased costs, and the decreasing cycle times for technology development, perhaps the United States ought to consider a different approach by looking at it from a different perspective. Perhaps the United States ought to consider complementary alternatives to the strict focus on increased IPR protection. Such a complement might include strengthening the nation's and firms' capacities to cycle technology more rapidly, to appropriate know-how that is developed elsewhere, and to diffuse and use new technological innovation more effectively. It may be somewhat heretical, but it is surely worth echoing one of Paul David's points in Chapter 2, namely, that it is not obvious whether an economy derives greater long-term benefits from stricter IPR protection that rewards innovation or from protecting less and choosing to favor the more rapid exploitation and use of technology.

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Global Dimensions of Intellectual Property Rights in Science and Technology Perhaps a preferable model might be to favor exploitation and use, rather than stricter protection, that could be accomplished through a liberal licensing regime, with reasonable royalties and without the ability to use blocking injunctions as a remedy. Such a liberal IPR regime might also include some degree of public subsidy for innovation. This is a model much like the one under which AT&T Bell Laboratories operated from 1956 through 1984. That model just might be preferable to the elaborate, and increasingly complex, system of sui generis protection of intellectual property that some have advocated in the report. ROBERT W. LUCKY My role is to tell you about the trends that I see in technology development that are likely to affect the environment for intellectual property in the future. I would like to say that I am a working researcher, but that would be self-flattery. I am a research manager, and my goal—my point of view—is to find ways to create incentives for investment in research. I am really very, very concerned about this. To the degree that IPR protection can help in that effort, I am all for it. To the degree that it creates disincentives, I am not. After thinking about this a fair amount, my conclusion is that it would be wrong to put the burden for creating all those incentives on intellectual property alone. Intellectual property rights are only part of a much bigger fabric of government and corporate policies, which involves tax laws, trade barriers, competency of management, the market, and so on. I drive to work in the morning and, as I approach my labs at AT&T, I go past a water tower with three legs. It is shaped like a transistor. I drive underneath it, and it reminds me of AT&T's historic past. The state of New Jersey has placed historic markers along the road proclaiming that, from this site, the first signals were transmitted to a satellite; the first signals from outer space were received and radio astronomy was born in 1927. The discovery of radiation from the ''big bang" won a Nobel Prize for two of my colleagues at Bell Labs. As I drive in, I think of what we are doing now at Bell Labs. I feel the burden as I think that I just closed down radio-astronomy research. People said, "What is in it for AT&T?" There was a letter to the company newspaper in my in-box yesterday from an employee who asked why we are investing money in future technologies, such as computer-generated environments, when we are laying off people. My having to answer this is not an enviable position. I go to meetings, and the business people have taken over— largely what we call "bean counters." They say, "Why are we spending money on research, explain this to me again? This is an investment. We can put our

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Global Dimensions of Intellectual Property Rights in Science and Technology money in research, or we can put it in something else. Now, explain to me how putting the money in research is an investment?" We tell them, "You are going to get a lot of money back; all the studies show that." They say, "Gee, that is really nice, and when do we get this back?" We say, "Well, in 20 years, give or take a bit." They say, "That does not sound so good." Then they ask, "Who gets the money back?'' and we are forced to admit, "Well, probably not you." Those are the facts. You cannot get around them. From the standpoint of AT&T, two threats—one from outside and one from inside the United States—occupy a lot of my attention. The international threat, epitomized by the Japanese—although it certainly does not involve them alone—is the speed with which they are able to capitalize on invention. I do not blame them for it, but we in the United States just have not been very good at this. We have got to get our own act together. I think of something like fiber optics, which has a front end of invention (the basic R&D) and a back end (the embodiment of research in a product). AT&T built up its fiber optics business over several decades—built it up to the point at which it suddenly became a good business—and then the rules of the game were changed. It becomes a question of business processes and manufacturing competencies, and that is where the payoff is. The problem is that the payoff from the front end—the research that led to the fiber-optic technology—does not seem to exist. So that is one threat. The other threat comes from within the United States, from other companies that are attempting to compete with AT&T. They are not all small, start-up companies; one has about 35 percent of the market. Yet they undertake no—zero—research. They are a living demonstration that you do not need to do research to be successful in this business. When the bean counters look at it, they say: "We have to compete against this company. Let's add up the bottom line. Where are we spending? What is the cost structure in these two businesses? What is this line, research, with nothing over there on the other side and why we are doing this?" I think about this again and again. One of our competitors has, on occasion, indicated that it is even proud of the fact that it has undertaken no research. In fact, the chief executive officer of that company reportedly has said that Bell Labs was "AT&T's expensive hobby. You do not need this to succeed." I think about this and how they get the benefits of AT&T's research without investing in it and about what would be fair. I do not mean just access to technology. There is much more than that out there. There is this whole seething, boiling, international community of researchers and developers who are building a knowledge pool of how to do telecommunications. There are the standards bodies, the literature, the conferences, and all the get-togethers and meetings through which people accumulate wisdom. I have no quarrel with companies that contribute to the

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Global Dimensions of Intellectual Property Rights in Science and Technology knowledge pool, but what happens when one or more companies opt out? This is, in fact, the case today. Let me address the issue of motivation. I am fascinated with the idea that IPRs are intended to provide incentives to inventors to make their results publicly available in return for exclusivity. When you deal with actual researchers, however, you realize that the overwhelming majority are not motivated by this at all. Indeed, their motivation is to publicize what they have. Period. This is the world they live in. In fact, the thing that upsets researchers most is when they submit a paper for company approval for publication, and it is turned down because it may have patent significance. They want to convene review boards, and then they say, "Maybe I should work on something else, something that is not so applicable, rather than something that has patent significance if I am not allowed to publish." Publishing is their world, the classic motivation of researchers. I convened a focus group of researchers the other day, and I asked them about intellectual property and what it meant to them, and whether it was an incentive or disincentive. One said, "I don't know; if it went away, it would be no big deal." I am less concerned about them than I am with business leaders and how they see intellectual property. In our company, it is a defensive posture. We cross-license everybody. It is just a way of opting out of this whole system, isn't it? Let me, finally, review a series of trends that I see occurring in technology that make a difference in the research environment. Globalization is the first. AT&T Bell Labs used to be a unique place; we were alone in the world. Now technology is strewn about the world, and competence is everywhere. Further, we are constantly forming consortiums and joint ventures. As a result, we are never quite sure who are our friends and who are our enemies. It is "mix and match" in business today, and it is happening all over. A second trend is collapse of the time scale. There is not time to do anything any more. In fact, outside of research, people stop writing things. We are fast becoming an oral culture, and in terms of getting a profit, you have got to get in and get out. It has little or nothing to do with this large flywheel of research. A third trend is rising complexity, for example, programs with multimillion lines of code, networks that one does not understand anymore. There is an accumulation of complexity that makes it much harder to make progress. Things have gone beyond the understanding of individual people. A fourth trend is that the physical world is changing to the virtual world. No one in the telecommunications industry cares about hardware devices any more. Don't invent another transistor; I don't want it. Tell me about software and things like that. So all of the telecommunications companies are cutting back on their physical sciences work.

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Global Dimensions of Intellectual Property Rights in Science and Technology A fifth trend is instant access to information everywhere. Networks exist for every kind of thing. Since the disappearance of limitations on information flow, fashions sweep the world of technology, and there is instant information access everywhere. One day it is high-temperature superconductivity; the next day it may be cold fusion; then it is something else, and everybody flits from here to there at the same time. A sixth trend is that the world is now run by standards and open architectures: "Let us get together and develop this, and then we will sort out who gets what." I do not know how this kind of world works at all. I do not understand why I put 30 years of work into picture processing, to have it standardized and given to everyone, with the returns going to the people who now can manufacture the best in that system. A final trend is the cost of research. It is rising much faster than the cost of living. In the world of electronics, where one now speaks in terms of pentaseconds and gigabits and things like that, the potential dollar costs are enormous. So it is a world full of complexity, difficulties, and mystery; and as a research manager, I have a problem. EUGENE B. SKOLNIKOFF I want to step back a bit from the details and think about the IPR issue as it fits into a larger international framework. First, there is the obvious point (but worth repeating) that change is genuinely a constant. Armstrong (see Chapter 8) and others have made the point earlier in this report. Technology changes; it is dynamic, and it is hard to anticipate. I would generally agree with the list of changes given by Robert Lucky, but let me review them and add some. Aside from the dynamic nature of technology, one must recognize that knowledge and competence in science and technology are spreading rapidly and growing all over the world. The United States is no longer the dominant power in every field, although it probably has the greatest technological breadth. In some areas it remains ahead, whereas in others it no longer leads, and that has become a very important factor in the IPR debate. It has been suggested by an earlier speaker that unauthorized access to technology is the natural result of the spread of competence and knowledge; there is likely to be much more of it in future years. As a result, the incentives and need for, and the purposes of, intellectual property protection are going to change as technology changes, as indigenous capabilities change, and as growth in competence continues to spread around the world. While unauthorized access to knowledge will continue to grow, the motivations of many countries, particularly the NICs, regarding intellectual property will change. There is likely to be growing interest among many countries in

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Global Dimensions of Intellectual Property Rights in Science and Technology some form of national and international protection that will parallel the spread of knowledge and indigenous capability. Yet, we in the United States can expect from that a continuous battle between IPR protection and unauthorized use, and continual fighting over the details of agreements and over what ought to be included. I believe we should be very wary of thinking that we can ever bring the battle to closure, to some sort of an international agreement that could settle the issue. It is an unrealistic and inappropriate goal, which cannot be accomplished. Although we may want to seek agreements that rationalize a variety of the IPR problems we face today, it is unrealistic to expect that we could create one integrated system somehow having an adequate dispute resolution mechanism while being able to keep up with technological change. I realize that this assertion flies in the face of some of the views expressed in this report, but I believe that it is a fact of life. In the political and economic context, we have to keep in mind the increasing globalization of many factors, not only technology but also markets; companies; social, economic, and political relationships; and environmental and other issues. We are living in the midst of a rapidly changing scene in which international economic competition, especially in high-technology trade, is emerging as a major—perhaps the major—international political issue for the future. It is replacing security competition. Yet while we see the very welcomed loss of Cold War confrontation, ethnic, national, and local forces and concerns have been unleashed that will create their own security dimensions for many years to come. Thus, ironically, we see a rise in nationalism accompanying globalization. In fact, I believe nationalism in the coming years will probably be the strongest political force with which we have to contend. The United States, too, is engaged in an economic competition with strong nationalist tendencies. We obviously are not doing terribly well in this competition, for a host of reasons. It is resulting in rising pressure to protect the products of our huge R&D investment. In that framework, IPRs are viewed as one of the elements of this international trade competition, one of the elements of protectionism. They will sometimes be used as a barrier to the entry of foreign goods. International trade itself, the larger context in which IPRs must be seen, is now very different than it was. Michael Borrus discusses the asymmetries between the United States and Japan earlier in this chapter, and I am in close agreement with his comments. I want to put this in a slightly different context, however; that is, international trade issues, which were seen in the past as matters of export subsidies and of tariffs and duties of various kinds, now go much deeper into society. International trade issues now involve cultural issues, different forms of economic structure and tradition, and even questions about the national support of R&D, which is in effect a kind

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Global Dimensions of Intellectual Property Rights in Science and Technology of subsidy. Moreover, international trade questions are going to get very much more difficult in the years ahead, whether or not the Uruguay Round is concluded successfully. Intellectual property rights will be embedded as one piece among many in international trade negotiations, negotiations that are subtle and complex and that will go to the heart of the sociocultural structure of a country. Let me mention some other issues relevant to the international scene. There has been much talk about developing countries and the North-South relationship. I can only foresee a continuing conflict of interest between the North and the South, one that is moderated by the growth and transition of some developing countries into NICs whose views of the world—and of their own self-interest—will change and move closer to that of developed countries. I think that the developed countries' disinterest, if I may put it that way, in the problems and difficulties of developing countries, which has become apparent over the past few decades, is likely to continue, at least with respect to the poorer nations. Several factors may change, however. One is that developing countries will have increased bargaining power against the North because of the emergence of global issues that require their cooperation. Climate change is an example of an issue that will require trade-offs, and the countries of the South are likely to attempt to draw linkages among quite disparate issues as a means of leverage to obtain resources, transfers of technologies, and other benefits. This will require a long time to work out, because I see little indication that the United States or other industrialized nations are yet seriously willing to put substantial resources into a North-South bargain. They will do so only if they have no other choice. The last area I want to mention is the United Nations and international organizations in general. They obviously are essential for dealing with IPRs and the other problems discussed in this report. It remains true that the United States prefers bilateral pressure and bilateral relationships to working through multilateral organizations. I do not think that this policy preference is likely to change soon, even with a change of administrations. In the effort to get broader participation in international agreements, multilateral organizations inevitably end up being slow and unwieldy, which has the effect of reducing the power and influence of the United States in that context. We will continue to use the United Nations because we have no choice. We will participate and develop positions as necessary, and there will even be considerable momentum toward new international agreements. However, those agreements will be limited and hard to reach, and they will usually lag behind technology. For these reasons, the United States (and probably other developed countries) will be reluctant rather than enthusiastic participants in international solutions to IPR problems.

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Global Dimensions of Intellectual Property Rights in Science and Technology Finally, I must take note of a relevant aspect of the American political process. I would argue that despite all the strengths of this nation, we are increasingly fragmented; our political process makes it difficult to come to grips with complex issues. Divergent and fragmented interests have so many different sources of leverage in the formulation of policy that it will continue to be very hard, especially on contentious issues such as IPRs, to reach agreement and to implement those policies consistently in the international arena. I believe that we are not in a good position to handle this aspect of our role. REFERENCES Edquist, C. and S. Jacobsson. 1988. Flexible Automation. Cambridge, England: Blackwell. Ergas, H. 1987. Does technology policy matter? in Technology and Global Industry, H. Brooks and B. Guile, eds. Washington, D.C.: National Academy Press. Evenson, Robert. 1990. Intellectual property rights, R&D, inventions, technology purchase, and piracy in economic development: An international comparative study. In Science and Technology: Lessons for Development Policy, R.E. Evenson and Gustav Ranis, eds. Boulder, Colo.: Westview Press. Levin, R.C., A.K. Kleverick, R.R. Nelson, and S.G. Winter. 1987. Appropriating the returns from industrial research and development. Pp. 783-820 in Brookings Papers on Economic Activity. Washington, D.C.: Brookings Institution. Mansfield, Edwin. 1986. Patents and innovation: An empirical study. Management Science 32:173-181. Mansfield, Edwin. 1988. Industrial innovation in Japan and the United States. Science (September 30): 1769-1774. Nevens, T. Michael, Gregory L. Summe, and Bro Uttal. 1990. Commercializing technology: What the best companies do. Harvard Business Review (May-June):155. Weiss, Charles, Jr. 1990. Scientific and technological constraints to economic growth and equity. In Science and Technology: Lessons for Developing Economies, Robert Evenson and Gustav Ranis, eds. Boulder, Colo.: Westview Press.