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Development of Intellectual Property Laws in Asia and Australia and it"s significance with both regions Essay Example

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Development of Intellectual Property

Development of Intellectual Property Laws in Asia and Australia and it"s significance with both regions

Its significance in Asia and Australia

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Abstract

This report has examined the development of intellectual property laws. This report has examined the development of intellectual property in various countries of Asia as well as Australia. It began with an example of the definition of intellectual property. Intellectual property is that which is not tangible, for instance, a song. In Europe the right to intangible property was not at first recognised. It was only in the sixteenth and seventeenth centuries that the argument was forwarded by artistes and inventors that they should hold particular rights to their handiwork in order to be motivated to use more time and energy in creation. The argument was that the composers expended a large amount of time creating a new composition and then once it was out in the public domain, anyone could learn it and sing it with no benefit to the composer. Eventually a consensus was arrived at where authors and inventors should retain some particular exclusive rights to their handiwork for a specified amount of time.

Therefore two policy reasons resulted in the introduction of intellectual property rights; the first one was that it was deemed unfair that the copying of insubstantial property could be done with ease while the composer who has carried out all the works gets nothing; and the second was the premise that providing intellectual property protection motivated further creation of artistic endeavors (Forsyth, 2011).

It then went on to break down the definition of intellectual property into its individual parts. The first is the limited nature of the protection given. The purpose being to provide sufficient protection to motivate creativity but not inhibit the development of science as well as the arts which would result from an excessive amount of ownership. The most substantial restriction is the twenty year period of protection known as patent (WIPO, 2001) as well as the author’s lifespan plus copyright of fifty years. After this protection period has expired, the works becomes intellectual commons or is in the public domain. In this domain, anyone is free to use the work without prior permission.

Table of Contents

Abstract 2

Introduction 4

Intellectual Property Laws in different Countries 6

Australia 6

Sri Lanka 11

ASEAN Countries 14

Compliance with TRIPS Agreements 18

Discussion 21

Conclusion 26

Introduction

Protection of intellectual property in the South Pacific countries is a pertinent topic. More and more, these laws are cited as a the solution to a plethora of problems ranging from unsatisfactory economic performance to the crumbling of cultural awareness (Cook Islands News, 2001) as well as bio-piracy carried out by multinational corporations (Cook Islands, 2002). As a result of this, there was intensification in laws to do with intellectual property as well as urging from the public to put forth additional protection (Pacific islands report, 1999). The World Trade Organisation (WTO) has also placed a lot of pressure on some countries in this region to bolster and enhance intellectual property rights via the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) (WIPO, 2003).

Intellectual property is that which is not tangible, for instance, a song. In Europe the right to intangible property was not at first recognised. It was only in the sixteenth and seventeenth centuries that the argument was forwarded by artistes and inventors that they should hold particular rights to their handiwork in order to be motivated to use more time and energy in creation. The argument was that the composers expended a large amount of time creating a new composition and then once it was out in the public domain, anyone could learn it and sing it with no benefit to the composer. Eventually a consensus was arrived at where authors and inventors should retain some particular exclusive rights to their handiwork for a specified amount of time.

Therefore two policy reasons resulted in the introduction of intellectual property rights; the first one was that it was deemed unfair that the copying of insubstantial property could be done with ease while the composer who has carried out all the works gets nothing; and the second was the premise that providing intellectual property protection motivated further creation of artistic endeavors (Forsyth, ).

The ideology behind this Western concept of intellectual property has resulted in the system being characterised by certain singular features. The first is the limited nature of the protection given. The purpose being to provide sufficient protection to motivate creativity but not inhibit the development of science as well as the arts which would result from an excessive amount of ownership. The most substantial restriction is the twenty year period of protection known as patent (WIPO, 2001) as well as the author’s lifespan plus copyright of fifty years. After this protection period has expired, the works becomes intellectual commons or is in the public domain. In this domain, anyone is free to use the work without prior permission. This is done so that a ready pool of ideas and works exist in which to use to come up with new concepts. Boyle calls it the ‘implicit quid pro quo of intellectual property’ (Boyle, 1996; 527).

The second feature involves public access to the work, where protection is predicated upon it. When industrial property is involved, this is achieved by the caveat which states that there needs to be registration of the trademark, invention or design for requisite protection to apply. In the case of copyright, mandatory licensing provisions must be in place as well as fair provisions in order to guarantee public access.

Copyright owners are looking for the help of Internet Service Providers (ISPs) more and more in the fight to curb copyright infringement online. The ISPs are tasked with enforcing copyright and leveling sanctions against users (McBride and Smith, 2013; Sookman and Glover, 2013). According to the ‘graduated response’ schemes ISPS are required to take action against users who are thought to be infringing on copyrights. This action can entail issuing warnings, collation of allegations made against subscribers and reporting them to the owners of the copyright as well as suspension or termination of services (Suzor and Fitzgerald, 2011).

This report will examine the development of copyright laws in Asia and Australia in order to attempt to gauge how significant these Intellectual Property laws are to the economies of these regions.

Intellectual Property Laws in different Countries

Australia

Under Australian copyright law, the pertinent issue is whether the ISP allowed its customers to infringe on copyright under section 101(1) of the Copyright Act which provides that a ‘copyright is infringed by a person who, not being the owner of the copyright, and without license of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright’ (Copyright Amendment (Digital Agenda) Act, 2000). Allowing copyright to be infringed is itself considered to be infringement. In order to make a determination of whether or not a person is authorised certain factors need to be taken into account; (Copyright Amendment (Digital Agenda) Act, 2000)

  • How much power the entity has to put a stop to the activity concerned.

  • The type of relationship existing between the authorised individual or entity and the person who committed the pertinent act.

  • Whether or not reasonable steps were taken by the person to prevent the act or avoid it, including compliance with pertinent industry codes of practice.

In addition to that, section 112E of the Copyright Act states that ‘ a person (including a carrier or carriage service provider) who provides facilities for making (…) a communication is not taken to have authorised any infringement of copyright (…) merely because another person uses the facilities so provided to do something the right to do which is included in the copyright.

The Australian Government invests significantly in the creation and development of intellectual property. This takes place through many avenues from science to education and health, information technology, public infrastructure, arts, culture and defense (AG Dept, 2012).

The Statement of IP Principles applies to Australian Government Agencies and it gives a management policy for Intellectual Property. The Financial Management and Accountability Act of 1997 (FMA Act) covers this policy and each agency was mandated to implement the policy by July 1st 2008. Intellectual property applies to a plethora of intangible property which comes about through creative and intellectual endeavours perpetuated by organisations and individuals. These endeavors are literary and artistic, inventions, databases, software, broadcasts, sound recordings, plant varieties, films, designs and trademarks. The Statement of IP Principles applies to all principles pertinent to the management of intellectual property such as procurement, industry development, record keeping, public access and wider innovation policy (AG dept, 2012).

The aims and objectives of different Australian Government agencies when it comes to business practice are not homogenous. Several agencies come up with content for publication and distribution to the public in order to inform and educate communities. They are not concerned with how this information is utilised in the public sector. Conversely, other agencies place strong emphasis on the commercial aspects and exert active management and control of intellectual property for purposes of achieving business goals (AG Dept, 2012).

The Statement of IP Principles gives a policy framework that is wide ranging for IP management by Australian government agencies but individual agencies are urged to come up with their own intellectual property management frameworks which take into account their own requirements and goals yet remain in congruence with the policies of other pertinent Australian government policies and requirements (AG Dept, 2012).

China

The United States repeatedly threatened China in the 1980s with economic sanctions, and opposing the entry of China to the World Trade Organisation as well as perpetuating trade wars. The threats eventually caused the Chinese government to comply and sign intellectual property agreements in1992, 1995 and 1996. However, the existence of the agreements has not stopped intellectual property piracy in China. Over two billion is estimated to be lost by the US in revenue each year because of intellectual property piracy within China. Since China opened its doors to the outside world in 1979, economic development has been the main focus in the country. Encouragement of foreign technology, capital, and information extended the reach of many multinational enterprises. Thus, intellectual property rights (IPRS) were initiated as a precursor for economic development in China (Yang, 2003). Although the history of intellectual property in the country shows that the concept of IPRS dates back more than 100 years, an effective system of intellectual property protection (IPP) emerged only in the last two decades. Ever since, an intellectual property structure was set up and has been functional to meet the necessities of economic development.

Intellectual property protection emerged as a product of human civilization and economic growth. In many countries, IPP is an effective legal tool used to protect the interest of owners of intellectual property (Bryan, 2012). China lagged behind other countries in the implementation of IPRS protection while others had their systems already working. In the wake of the reforms in China that opened the country to the outside world, the process of setting up an intellectual property rights protection accelerated swiftly to develop socially productive forces, promote social progress, and expedite the country’s entry to the world economy. China made a tremendous effort in less than 3 decades in establishing a comprehensive legal system that protects IPRS; thus, attracting universal attention for the establishment and enforcement of the system. IPP is an issue that concerns international economic, political, scientific, cultural, and technological exchanges. The agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS) pushed IPP a notch higher in the world and it has great significance globally, today. China’s engagement with the western system of IPRS strongly aligns with the country’s international trade relations. The need to be a member of the World Trade Organisation and the expectation of compliance with prescribed requirements in WTO agreement on TRIPS greatly influenced Chinese intellectual property regime.

IPRS have not received strong protection in China; however, external pressure and internal economic objectives propel China to move close to IPRS standards and practices of western countries. Sophisticated laws together with an increase in enforcement lead to a great number of IPRS infringement cases brought to Chinese authorities. Chinese IPRS laws have provisions for offering economic damages to people and companies in case their rights are infringed. Even though the laws were designed to comply with main international agreements, they differ in certain areas from laws in many western countries (Grosse, 2010). For instance, in some cases total damages that can be recovered are capped. If not capped, the fines and damage awards are often low compared to those in other countries. In recent years, China has developed IPRS laws and policies that strengthen the rights of IPRS owners. Nevertheless, the policies have not been fully implemented, which could lead to a high degree of deterrence to possible infringers.

The IPP system is essential to the Chinese government as it promotes progress in science, enrichment of culture and development of the country’s economy. The system functions as an essential institution that ensures smooth running of the economy. In addition, IPP creates a basic environment for conducting international cooperation and exchange in technology, culture, and economy. China regards protection of IP as an essential part in its strategy of reforming, opening its doors to the world into the country, and building a socialist legal system. Since the late 1970s, China embarked on formulation of laws and regulations in IPRS protection. The country took part in activities organized by relevant international organizations with the aim of strengthening international cooperation and exchange in IPRS (Williams and Mihalkanin, 2011). Since the inception of the Chinese IPRS protection system, it has operated on high international standards.

Encouraged by its development and opening up, China increased its legislation on IPP. The Chinese government relentlessly participated in IPRS negotiations and made efforts towards successful implementation of the necessary regulations. To meet the needs of the increased opening-up, China sought to fulfill international obligations in IPRS protection in an effort to bring its IPP level close to international standards. The country took key measures to raise its level of IPRS protection. Efforts to abide by international conventions, in addition to, bilateral agreements in the protection of IPRS, and implementation of international obligations earned China support and appreciation worldwide. The country accomplished these at unmatched speed in the history of IPP. Alongside the progress reform and opening up, China made big strides in IPP. In compliance with national and current tendency in international development, China formulated and tuned several laws and regulations regarding IPP with Chinese characteristics. The scope of IPRS protection in China and the level of protection gradually conformed to international practices. This led to the realization of high legal protection of IPRS.

In 1983, China set forth Trademark law and rules for its implementation, which were identical to international principles. Moreover, in 1993, it revised its trademark laws and terms of implementation in order to expand the trademarks protected. China also put in place regulation for management and registration of service trademarks. These regulations coincide with the requirements of TRIPS agreement. Further, the Chinese adopted supplementary regulations for punishing criminal counterfeiting the registered trademarks to intensify the punishment of such counterfeiting and further infringements (Ong, 2009). The laws together with the regulations guarantee exclusive use of foreign and Chinese registered trademarks.

In China, patent law and rules for its implementation were initiated in 1985 to expand the scope of IPP in the country, encompass inventions and new creations. The Standing Committee in the National People’s Congress approved an amendment to patent law in 1992, in order to propel China’s patent protection to international standards. In this amendment, the duration of invention patent was extended from 15 to 20 years from the date of application. The duration for utility model patents and exterior design patents were also extended from five to 10 years. Conditions for enforcing compulsory patent license were re-stipulated and now there is a strong protection of patent rights. All these measures indicate a new level in patent protection in China. Through these measures, its patent laws have been aligned with TRIPS agreement.

Recent amendment to the Chinese law elaborated and strengthened the utilization of preliminary injunctions. Previously, preliminary injunctions were not available in the laws and regulation. Under the new patent law in Article 6, a patentee may request the court to give a preliminary injunction and a property preservation order prior to the completion of litigation. Recent amendments included criminal liability as an available remedy for trademark infringement. Though it is unclear the extent to which criminal punishments can be brought, this marks a significant stride in the commitment of the Chinese government to the enforcement of IPR (Xiangjun and Wang, 2011).

Sri Lanka

Abeysekera (2006) compared a study done into intellectual capital reporting practices in Sri Lanka to that done in Australia. She concluded that if a policy framework is developed which applies consistent and comparable intellectual capital reporting, this would increase the accuracy of decisions made and resources allocated. The ideal setting to which to apply a framework for intellectual capital are the annual reports because this gives a cross section of trends across different organisations, sectors and nations.

They are used to convey issues in a comprehensive and concise manner and they are also produced at regular intervals and can therefore be utilised to evaluate management attitudes and policies. A study by Guthrie and Petty (2000) covered the experimental analysis of organisational practices among Australian firms as pertains to intellectual capital reporting. This involved literature review of policy pronouncements, both government and professional, in order to identify those organisations that talked about intellectual capital. Furthermore, reports from the top 20 listed firms in Australia were analysed in order to comprehend the lengths to which they went to report intellectual capital. This study was used to compare with Sri Lankan practices due to the fact that both researches did an exhaustive evaluation by utilising annual reports as their sources while using content analysis in their methodology. The period of review was also similar viz. 1998-2000. The Australian study was composed of twenty top firms that were listed in the Australian Stock Exchange and the Sri Lankan study used thirty firms listed in the Colombo Stock Exchange. Content analysis was used to analyse data and the data collection involved codifying qualitative data which was obtained in anecdotal and literary form. These were then categorised into groups that took into account internal, external and human capital.

Human capital consisted of training and development, equity issues, employee relations, entrepreneurial skills, employee safety, employee-related measurements and welfare. Internal capital consists of philosophy and culture, financial relations, intellectual property, processes and systems. External capital is corporate image building, brand building, distribution channels, and business partnering and market share.

Investor confidence is important in the face of global competition and therefore proactive intellectual capital reporting is crucial. In Sri Lanka, the importance of reporting external capital can be conjectured in three ways; the first is that the focus on external capital may take away some of the repercussions on investor confidence produced by sociopolitical aspects including civil war. The second is the mitigating effect it has on the influence of protective labour laws on optimising profit. The third is that the Colombo stock exchange is fairly small by market capitalisation and therefore heavily relies on foreign investment to sustain liquidity and make up the deficit between savings and investments.

An evaluation of the two indicators of market liquidity viz. Market capitalisation as a percentage of the GDP as well as the trade value as a percentage of market capitalisation, shows that the Colombo stock exchange has the least liquidity in south Asia. Reporting external capital has a significant influence on investor confidence especially as pertains to brand building which is a major element of intellectual capital reporting for companies in Sri Lanka. This contrasts with the annual reports of Australian firms that emphasis more on business partnering.

Australia

Sri Lanka

External Capital

Highest Frequency

Business Partnering

Brand Building

Lowest Frequency

Brand Building

Distribution channels

Human Capital

Highest Frequency

Entrepreneurial skills

Employee relations

Internal Capital

Highest Frequency

Philosophy and culture

Management processes

Fourth-highest frequency

Intellectual property

Philosophy and culture

Fifth-highest frequency

Networking Systems

Intellectual Property

Table 1: comparing frequency of reporting in Australia and Sri Lanka for various subcategories. Source: Abeysekera, 2006.

As can be seen from the table there was more brand building reported by Sri Lankan firms as compared to their Australian counterparts. This may be because 33% of firms in Sril Lanka are owned by multinational cooperations with more resources than are available to others. The annual reports show that global branded products peddled by these multinationals are marketed locally which correlates with previous research which showed that branded products are the most lucrative. The percentage of human capital reported in Sri Lanka was higher by six percent than that reported by Australia. This is probably because of the Sri Lankan culture which emphasises employee-company relationships as compared to developed countries. The impression made is that companies in Sri Lanka rely on their employees’ implicit skills instead of attempting to collate this knowledge. This is carried out by stressing the building of relationships and by indirectly encouraging communities of practice among personnel.

This format mimics the operations of successful Japanese organisations as carried out by Nonaka (1991) which discovered that skills creation is perceived as a process of delving into the implicit knowledge, intuitions, hunches and insights of employees which is based on the fact that knowledge starts at the individual level. The reporting of entrepreneurial skills is more frequent in Australia while least frequently reported in Sri Lanka. Australian companies have more research and development done than Sri Lankan firms. This is due to the tendency for more developed countries to support innovation in technology helped along by a dynamic risk insurance that assists in the conversion of technological change to commercial use. They are also able to absorb the risks brought about by innovation and high initial cost and hence support entrepreneurship.

In the internal capital group, intellectual property reporting was higher in Australia than Sri Lanka due to the greater support that the government of Australia gives to the entrepreneurial culture and its intellectual property laws are more exhaustive. Should the same strength of regulation exist in developing nations and enforced as such, there would be an increase in the transfer of technology (Abeysekera, 2006).

ASEAN Countries

There has been less attention paid to the development of intellectual property law in ASEAN nations as opposed to the more powerful and commercially appealing nations of India, China and Japan in the last twenty years. This is in spite of the extensive tradition of intellectual property principles existing in the region due to colonialism. For instance, in the Philippines the first intellectual property decree was introduced in 1833 by the Spanish. The region is a study in how intellectual property relates to various stages in economic development. Despite the Asian crisis of 1997, there are serious efforts by some ASEAN countries to launch themselves as important contenders in the field of intellectual property rather than being just spectators receiving principles and policies from somewhere else (Antons, 1991).

There are several elements that have resulted in the swift change in the intellectual property landscape for ASEAN countries in recent years. In the 1990s, ASEAN was much smaller than it presently is. It did not yet contain Laos, Myanmar, Cambodia and Vietnam. In the mid- 1990s, there was an enlargement which caused it to become two tier, as well as less unified both politically and economically. The old ASEAN six consisted of the Philippines, Singapore, Malaysia, Indonesia, Thailand and Brunei and then there is the new ASEAN four of Vietnam, Cambodia, Laos and Myanmar (Tay and Estanislao, 2001). This expansion is one reason why the efforts to unify the intellectual property laws has been an issue and the progress hoped for has not been made.

In the second place, countries which only had rudimentary laws in the late 1980s have made great strides in coming up with an intellectual property system specifically Malaysia and Singapore. Others that possessed a more comprehensive set of laws have decelerated moderately. Finally, in the 1990s the intellectual property systems of ASEAN countries looked more similar than they presently do. During the late 1980s and early 1990s, the ASEAN countries were pressurised chiefly by the United States and European Union to bring about contemporary intellectual property systems and bring about reform of the colonial laws.

This resulted in them experiencing similar issues in an effort to implement intellectual property laws quickly. In recent times, ASEAN countries represent a different stage of intellectual property development with countries like Singapore experiencing vastly different issues than say, Laos or Cambodia. Aside from the expansion of ASEAN countries, the diversity in the landscape of intellectual property is a factor of the TRIPS agreement as well and the response of different nations to it as well as the more recent Free Trade Agreements which were closed by the United States and others with regional nations which hone in on the more successful economies in the region (Antons, 1991).

Not until after 1985 did Singapore possess an intellectual property system of its own. Before this, it depended on re-registering intellectual property rights registered in the United Kingdom. It only launched its own legislation for intellectual property between 1987-2000 and this was made up of copyright, design acts, trade mark as well as an act that protected layout designs for integrated circuits (Loon, 2003). Although it is a departure from other countries in the region, Singapore has also achieved effective enforcement of rights. Intellectual property forms a crucial topic in legal education currently and there is a IP Academy for research and training which has been established to help with this assignment and give more training in the profession, IP administration as well as the public stakeholders. Singapore is ambitious in terms of development areas to do with intellectual property protection especially as pertains to biotechnology (Chaturvedi, 2004). In this context it is crucial to warrant that Singapore does not utilise the exception in Article 27.3 (b) contained in the TRIPS Agreement which has provision for the exclusion from patentability plants and animals by member states other than those micro-organisms as well as generally biological processes which produce plants or animals except non-biological and microbiological processes. According to Loon (2003) the Select Committee that scrutinises the Patents Bill conjectured that Patent Protection for plant and non-human animal varieties were required to promote studies and investment in biodiversity, agriculture and horticulture in Singapore. Under the agreement between Singapore and the United States FTA, the former is mandated to join the UPOV Convention and can no longer use Article 27.3 (b) of the TRIPS Agreement (Loon, 2004). Singapore joined UPOV in July 2004 (UPOV, 2006).

Malaysian legislation is also fully developed and for the most part is TRIPS compliant (Goon, 2003). Administration of intellectual property has improved significantly ever since the incorporation of the IP office as a body corporate as well as a statutory body as occurred in 2003 (Intellectual Property Corporation of Malaysia Act 2002; section 3 and 33). This new format accords Malaysian Intellectual Property Office with more leeway to regulate its own operations as pertains to its personnel and budget ( Intellectual Property Corporation of Malaysia Act 2002 Parts IV and V) even if the office still maintains its position under the aegis of the Minister of Domestic Trade and Consumer Affairs. There are still issues that remain in terms of enforcement and in the judiciary. According to statistics, Malaysian courts are backlogged and overloaded (Inaugural report of the Superior and Subordinate Courts in Malaysia, 2005). Similar to other countries in the region, there are consultations in place to establish intellectual property courts to deal with this issue.

Staunch efforts have been made to bolster the enforcement of intellectual property rights but Malaysia is still fighting the reputation of being the most important producer and/or exporter of pirated optical disc entertainment software in the world ( International Intellectual Property Alliance, 2005). Malaysia harbours robust ambitions when it comes to information technology and biotechnology. There is a multimedia super corridor located at Cyberjaya which is in the suburbs of Kuala Lumpur and gives conducive conditions and tax benefits to IT companies. With the enactment of the Digital Signature Act as well as the Computer Crimes Act and the Telemedicine Act of 1997, the legal framework for additional development of the information technology industry was improved. In addition to this are the Communications and Multimedia Act of 1998 and varying amendments to the Copyright Act ( Tee, 2001).

In the ASEAN region, the Philippines have the longest history of intellectual property protection which goes back to colonisation by the Spanish in the early 19th century ( Daud, 2004). Following a time of intellectual property protection resulting from Presidential decrees during the Marcos era, the Philippines was at the fore front in Southeast Asia of adopting an exhaustive intellectual property code which adhered to WIPO models in 1995. The code encompasses utility models, patents, geographical indications, trademarks, industrial designs, copyright, layout designs of integrated circuits and undisclosed information. Different legislation takes care of plant variety protection from 2002.

There is a lot of controversy surrounding intellectual property in Thailand. In the late 1980s there was a discourse on the alterations to the Copyright Act which were intended to bolster the position of rights holders which even resulted in parliament being dissolved and new elections called (Antons, 1991). After this the discourse moved to patents and pharmaceuticals in the 1990s. Due to the crisis garnered by AIDS in Thailand, the government was faulted for not utilising compulsory licensing mechanisms for pharmaceuticals due to the fear of negative repercussions from foreign investment (Kuanpoth, 2003).

In more recent times, Thailand has come to prominence due to launching the first specialised court in the region for intellectual property and international trade law in 1996 (Ariyanuntaka, 2000). There is a departure from the country’s tradition where the court is permitted to draft its own rules instead of making changes via amendment to the codes of civil and criminal procedure. As a result there are some common law remedies such as Anton Piller orders as well as interlocutory injunctions that were crafted after the model of the American Cyanamid decision of the House of Lords. The specialisation on intellectual property matters is not total due to the fact that it also deals with international trade laws to mitigate against the fear of adequate work. This fear has proved unfounded and there was a doubling of workload from 2000 to 2004, however most of the intellectual property cases were composed of criminal rather than civil cases (Antons, 2005).

Intellectual property legislation was completed in Indonesia in the 1990s and a completely new set of laws incepted between 2000-2002 in order to make them compliant with TRIPS ( Antons, 2003). The political upheavals in Indonesia have affected development of intellectual property laws as it has done in other areas of the economy and politics. The rate of piracy has risen as well and this can be attributed to poverty and the quick money made from pirated products. Conversely, the increased political space and diversity means that the former method using task forces to push through intellectual property reforms cannot work and it is more difficult to pass laws. Implementation is hampered by a large amount of implementation decrees that take years to be issued (Antons, 2004).

Liberalisation of politics in Indonesia has led to devolution of decision making to provinces and districts. This has impacted on the intellectual property field. There have been branches introduced to the intellectual property office through authorisation of local branch offices in the Ministry of Justice to deal with applications for intellectual property right registration. This facility has been available since 2001 and there has been growth of registration from trade mark owners since then (Directorate General of Intellectual Property Rights).

The commercial courts now decide cases dealing with patents, trademarks, copyright, layout designs of integrated circuits and industrial designs. The district courts are however still responsible for criminal cases, trade secrets, plant varieties and border control.

Compliance with TRIPS Agreements

Establishment of WTO in 1995 showed multilateral desire to unite trade principles to reduce impediments and distortions in international trade. IPRS played a considerable role in promoting international trade. Thus, WTO agreement requires members to adhere to another agreement, the TRIPS agreement, which was part of the General Agreement on Trade and Tariffs (GATT). TRIPS agreement offers international rules for the scope, use, and enforcement of IPRS and dispute avoidance and settlement. The TRIPS agreement recognizes and reinforces operations of existing IP conventions and establishes a supportive relationship with WIPO, and other relevant international organizations. A member can implement extensive protection beyond TRIPS agreement as long as it does not contravene the provisions of TRIPS.

Meanwhile, members have the freedom to determine the appropriate method for implementing the provisions of TRIPS agreement in their legal system and practice. However, the objectives of TRIPS in Article 7 need to be considered. The state’s protection and enforcement of IPRS contribute to the advancement of technological innovation and transfer. It also promotes the dissemination of technology for mutual advantage of users and producers of technological knowledge in a way conducive to economic and social welfare, while balancing rights and obligations. Having the right balance is core to the tension between monopoly rights determined via IP regimes and the need to prompt free trade between nations (Kamal and Trachtman, 2009). Ultimately, the efficiency of the enforcement regime marks the success of a member’s IP regime even after complying with principles and standards synchronized under TRIPS agreement. Arguably, China’s IPRs system failed in the majority of the principles of TRIPS agreement. Nevertheless, concerted efforts in recent times have been made to address the country’s enforcement inadequacies.

Thirteen years after signing the TRIPS agreement, strengthening the enforcement of IPRS became a critical issue in many bi- and multi-lateral negotiations. The anti Counterfeiting Trade Agreement (ACTA), focuses on issues of enforcing IPRS in the world. Nevertheless, enforcement of IP laws has its inherent rules and particular characteristics. It requires close collaboration of enterprise, government, individuals, and nongovernmental organizations. China established the comprehensive legal system for protecting IPRS in accordance with international treaties. Even though the IPRS system meets the requirements of key international treaties, the EU and US have often accused China of not complying with its obligations in enforcing effective IP laws. The Chinese government pays attention to the implementation of IP laws and exerts great efforts in the fight against IPRS infringement. However, due to factors such as poor education, lack of knowledge in IP laws, and other economic, administrative and cultural factors, the country’s enforcement activities seldom satisfy the expectations of major China’s trading partners like the EU, US, Japan and Korea. These countries have to recognize that making a law is easier than enforcing it. International law and public opinions can produce immediate and positive effects in the process of law making; however, they have little influence on the law’s enforcement (Xuan, 2010).

In IP legal system, it is easier for a country develop and revise its IP domestic laws in a limited time in order to comply with international IP treaties than enforce them due to the numerous conditions imposed. China is an example as it was successful in enacting the IPRS legislation, but it faces many hurdles in enforcing the laws. Since 1978, the country has gradually established and perfected its comprehensive legal system on IPRS. Upon signing the WTO agreement, China had to harmonize and enforce IP law in order to benefit people from other WTO member states. TRIPS agreement was part of WTO undertaking in 1994, and offers the minimum level of protection of IPRS and their enforcement. The establishment of minimum levels of IPRS under TRIPS recognizes that each country can have an incentive to enact a level of regulation that is below the global efficient level. Nevertheless, the fact that countries have incentives to under-protect IP does not necessarily imply that it is efficient to equalize the degree of IPR in all countries. While such harmonization of IPRS is essential under TRIPS, arguably such harmonization is neither necessary nor sufficient for achieving global efficiency. Chinese authorities have recognized the need for a strong enforcement and are taking the necessary steps. The main mechanisms in China that have been strengthened include elements of administrative enforcement, customs enforcement, civil enforcement and criminal enforcement (Xuan, 2010).

Protection of IP all over the world is at a dynamic stage. Having the international cooperation in science and technology, and development of the economy and trade, the legal protection of IP plays an essential role in society and is of great significance in the world. All nations have attempted to formulate development strategy for the new century and content protection is crucial in order to attain the commanding height in science and technology, economy and industry. Development of knowledge-based economy requires consistency in the legal system, in order to protect the advanced productive forces involved in new knowledge and new economy. Similar to the way civil and commercial legal systems have ties to the commodity economy and market economy, the legal system in IP also has ties to the market economy as well as the knowledge economy. Establishment and development of IP system is as a result of human civilization, social progress and the development of commodity economy. The development of knowledge-based economy resides on innovation of knowledge, while IP system offers the owner of innovation exclusive rights for a certain period in order to recover the high costs, and gain from innovation that drives economic development. This gives full value of IP and maximizes the interests of the owner, which increases people’s enthusiasm to innovate. Protection of IPRS is essential to innovation, research, and fair competition (Ordish and Adcock, 2008). Even though, focus on competition increasingly shifts toward invention and innovation, the cost of many creative activities rise as it becomes easier to copy them. Therefore, successful IPRS protection regards the producing effective, commercially driven results. Like other facets of business, IPRS protection needs to exhibit a return on investment. Best indicators of a return on investment are the increased market share and sales attributable to IPRS protection.

Discussion

One of the most critical challenges in contemporary society is disputes on intellectual property between developing and developed countries. One of the issues that arise is the global intellectual property infrastructures as well as intellectual property policies which are said to protect the wealthy rather than the disadvantaged in society (Ordish and Adcock, 2008).

In the back drop of this, studies on intellectual property laws need not only assess whether both developing and developed countries are utilising IP laws in a way that meets the demands of developed countries and also be improved in order to cater to the needs of developing countries.

The speedy dissemination of information as well as technologies to do with communication most especially the internet is bringing about transformation in contemporary society as well as economy. This is a threat to some long standing creative enterprises such as newspapers and causing extreme disruption to others such as the music recording industry (Naughton, 2012)

Others have derived some benefit from the situation, most notably American distribution and devices companies such as Amazon, Apple, Google or Facebook.

The Internet is coming up to its thirty years of existence yet the ICT revolution is not complete(McKinsey Quarterly, 2011). The Boston Consulting Group is of the opinion that the G-20 group of countries will have an Internet economy worth 4.2 trillion dollars by the year 2016 (Boston Consulting Group, 2012). Universal digitisation is claimed to be worth an extra £63 billion to the GDP of the UK in 2011 (Startup Genome/Telefonica Digital, 2012). McKinsey reports that economic growth in G-8 countries was ten per cent derived from the internet over the 15 years preceding the year 2009 (McKinsey, 2011).

The completion of the Digital Single Market in Europe was critical economically in recent times as was that of the single EU market which represented the prosperity of Europe for a generation (Copenhagen Economics, 2010). The growth of internet enabled smart phones which operate at super speeds as well as development of innovation in broadband means that there is circumvention of slower connections connected with fibre in the ground and precipitating inception of products that are competitive. Mobile phones constitute the gateway to the internet in emerging markets as opposed to computers. There is a diminishing minority which however remains significant within Europe and North America who suffer from digital exclusion which means they have irregular access to the internet. This constitutes about 20% of the population (Ofcom, 2012). There are several disadvantages to the Internet such as compromised privacy, the risk of breaching cyber security, illegal sharing of files and uncensored access to unedifying content. However, the majority of governments have concluded that a policy design is required to promote the positive effects of the Internet on creativity and economic growth while taking care of the risks.

The main manner in which regulation of the creation, distribution and utilisation of knowledge is done is through intellectual property rights. These rights have been globalised and the scope of intellectual property protection expanded which means that those international institutions that deal with issues to do with intellectual property such as the WTO and WIPO have grown in importance.

In the nineteen sixties and seventies, developing countries tried to improve the main international conventions which were to do with intellectual property for instance the Berne Convention for the Protection of Literary and Artistic Works (1886) which seeks to protect copyright as well as the Paris Convention on the Protection of Industrial Property (1883). This was done with the aim of increasing the responsiveness of these instruments to the socioeconomic needs of developing countries as pertains to availability of educational material, technology and scientific knowledge( Krikorian and Kapczynski, 2010). However these attempts at reforms did not have the desired effect and they increasingly have become irrelevant to the needs of these countries.

When the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) from the WTO concluded in 1994, many of the concerns held by developing countries were brought to the fore, since it signified a crucial development in the process of bolstering the intellectual property rights globally. New rules were internationalised by TRIPS which is key to the better distribution of knowledge for instance extending patent protection for pharmaceuticals as well as copyright protection of computer software (Krikorian and Kapczynski, 2010).

There were also minimum standards established in order to enforce intellectual property rights which were placed within the WTO dispute resolution mechanisms. These mechanisms could be employed in case of noncompliance which differs from the situation with WIPO in which there was a dearth of existing intellectual property agreements (Sell, 2003).

Knowledge may have always been important to the fabric of human society but in contemporary times there has been a shift in the prominence of knowledge as well known economists and social theorists attempt to prove that it has come to a new significance. They also seek to pinpoint when this alleged transformation occurred and what the meaning is (Krikorian and Kapczynski, 2010).

Looked at from an economic viewpoint, knowledge is important due to its technological potential and how it affects growth and productivity. Capitalism was said to rely on technological dynamism according to Karl Marx and Joseph Schumpeter (Scherer, 1999). However, the role that knowledge plays remained unacknowledged in the neoclassical paradigm until Robert Solow did a study in the 1950s. Solow proposed a relationship between economic growth and knowledge stating that the larger proportions of benefits accrued in early twentieth century productivity in America is due to technical change as opposed to labour or capital. This was known as residual(Scherer, 1999).

This residual proposed by Solow came to be known as a plethora of gains in knowledge which include the innovative machines of the time such as tractors to management techniques such as Fordism which streamlined processes to run more efficiently (Castells, 2000). Academic research carried out on the intellectual property issues that China is known for concentrates on the piracy problems. It has been reported with pride by Chinese media outlets that China has made great strides towards achieving WTO standards as well as the requirements of TRIPs. The delay occasioned by intellectual property issues to accession to the WTO upsets even ordinary citizens (Shao, 2007).

According to the Report of the Commission on Intellectual Property Rights(UK,2002) we are still a long way from achieving the goal of utilising intellectual property laws to assist global reduction in poverty, fight disease, improve maternal and child care and promote access to education as well as contribute to the sustainable development of developing nations (Commission on Intellectual Property Rights, 2002).

Current intellectual property regimes have several deficiencies. According to Graham Dutfield and Uma Suthersanen, a common problem is ‘overprotection’ of intellectual property owners (Dutfield and Suthersanen, 2004). It seems as though the balance is done and has been replaced by a feeding frenzy according to Lawrence Lessig who is an academic lawyer (Lessig, 1999). This results in an interest imbalance between developing and developed countries. This is worsened by the fact that the TRIPs Agreement was formulated with the interests of the U.S. Economy in mind as well as other developed countries to a lesser extent ( Endeshaw, 2002). The question then becomes whether the TRIPs Agreements and policies on intellectual property in the developed nations can benefit developing countries. There is an economic argument that should developing countries generate intellectual property protection that is more robust, they could garner a greater connection to globalisation processes (Maskus, 2000).

This poses a challenge because there is no critical examination of current international intellectual property regimes in the premise that if the developing countries comply they will be admitted into the global market. It does this without querying whether developing countries are able to afford the sort of intellectual property protection required to satisfy developed countries and whether this bargain is worth the return of access to the global market that is controlled by developed countries (Sell, 1998). What the main issue is that the IP standards of protection that are appropriate for developed countries may be financially unfeasible for developing countries (Lessig, 1999).

The contemporary creative sector is reliant upon digital technologies at its core (Garnham, 2005). Search engines, social networks as well as other digital platforms assist in the generation of new products and services with the help of highly creative talent which includes users (Potts et al., 2008).

There are also several ‘digitally native’ organisations that are intimately embedded into the creative industries value chains which indicate that their real home is the creative sector (Booz and Co., 2013). Since these digital creative activities are included in the framework of creative economy there is a question raised on why the existing DCMS definitions are preoccupied only with businesses that create and make use of intellectual property. Intellectual property is at the core of value addition in the creative sector but key elements of the creative sectors utilise business models which do not directly rely on intellectual property exploitation for instance, online advertising (Advertising Association/ Deloitte, 2013). Industries such as fashion design and advertising have illustrated that they thrive on competitive strategies even before the advent of the digital revolution. These strategies include first mover advantage in which there is a less obvious role played by intellectual property (Cox and Jenkins, 2005).

As has been observed from the report, there is an imbalance in the applicability of intellectual property rights when it comes to comparison between developing and developed countries. The IP agreements that are utilised in the market were made with developed countries in mind and therefore present something of a disadvantage to other nations. China especially has suffered with a reputation for copyright infringement and because of the struggle to comply with regulations from WTO and WIPO this situation might be detrimental to developing countries if regulations are not reformed.

Conclusion

This report has examined the development of intellectual property in various countries of Asia as well as Australia. It began with an example of the definition of intellectual property. Intellectual property is that which is not tangible, for instance, a song. In Europe the right to intangible property was not at first recognised. It was only in the sixteenth and seventeenth centuries that the argument was forwarded by artistes and inventors that they should hold particular rights to their handiwork in order to be motivated to use more time and energy in creation. The argument was that the composers expended a large amount of time creating a new composition and then once it was out in the public domain, anyone could learn it and sing it with no benefit to the composer. Eventually a consensus was arrived at where authors and inventors should retain some particular exclusive rights to their handiwork for a specified amount of time.

Therefore two policy reasons resulted in the introduction of intellectual property rights; the first one was that it was deemed unfair that the copying of insubstantial property could be done with ease while the composer who has carried out all the works gets nothing; and the second was the premise that providing intellectual property protection motivated further creation of artistic endeavors (Forsyth, 2011 ).

It then went on to break down the definition of intellectual property into its individual parts. The first is the limited nature of the protection given. The purpose being to provide sufficient protection to motivate creativity but not inhibit the development of science as well as the arts which would result from an excessive amount of ownership. The most substantial restriction is the twenty year period of protection known as patent (WIPO, 2001) as well as the author’s lifespan plus copyright of fifty years. After this protection period has expired, the works becomes intellectual commons or is in the public domain. In this domain, anyone is free to use the work without prior permission. This is done so that a ready pool of ideas and works exist in which to use to come up with new concepts. Boyle calls it the ‘implicit quid pro quo of intellectual property’ ( Boyle, 1996; 527).

The second feature involves public access to the work, where protection is predicated upon it. When industrial property is involved, this is achieved by the caveat which states that there needs to be registration of the trademark, invention or design for requisite protection to apply. In the case of copyright, mandatory licensing provisions must be in place as well as fair provisions in order to guarantee public access.

Copyright owners are looking for the help of Internet Service Providers (ISPs) more and more in the fight to curb copyright infringement online. The ISPs are tasked with enforcing copyright and leveling sanctions against users (McBride and Smith, 2013; Sookman and Glover, 2013). According to the ‘graduated response’ schemes ISPS are required to take action against users who are thought to be infringing on copyrights. This action can entail issuing warnings, collation of allegations made against subscribers and reporting them to the owners of the copyright as well as suspension or termination of services (Suzor and Fitzgerald, 2011).

This was followed by an examination of intellectual property law in various countries starting with Australia. Under Australian copyright law, the pertinent issue is whether the ISP allowed its customers to infringe on copyright under section 101(1) of the Copyright Act which provides that a ‘copyright is infringed by a person who, not being the owner of the copyright, and without license of the owner of the copyright, does in Australia, or authorises the doing in Australia of, any act comprised in the copyright’(Copyright Amendment (Digital Agenda) Act, 2000). Allowing copyright to be infringed is itself considered to be infringement. In order to make a determination of whether or not a person is authorised certain factors need to be taken into account; (Copyright Amendment (Digital Agenda) Act, 2000).

This was followed by Sri Lanka where Abeysekera (2006) compared a study done into intellectual capital reporting practices in Sri Lanka to that done in Australia. She concluded that if a policy framework is developed which applies consistent and comparable intellectual capital reporting, this would increase the accuracy of decisions made and resources allocated. The ideal setting to which to apply a framework for intellectual capital are the annual reports because this gives a cross section of trends across different organisations, sectors and nations.

This was followed by the examination of the ASEAN region. There are several elements that have resulted in the swift change in the intellectual property landscape for ASEAN countries in recent years. In the 1990s, ASEAN was much smaller than it presently is. It did not yet contain Laos, Myanmar, Cambodia and Vietnam. In the mid- 1990s, there was an enlargement which caused it to become two tier, as well as less unified both politically and economically. The old ASEAN six consisted of the Philippines, Singapore, Malaysia, Indonesia, Thailand and Brunei and then there is the new ASEAN four of Vietnam, Cambodia, Laos and Myanmar (Tay and Estanislao, 2001). This expansion is one reason why the efforts to unify the intellectual property laws has been an issue and the progress hoped for has not been made.

In the second place, countries which only had rudimentary laws in the late 1980s have made great strides in coming up with an intellectual property system specifically Malaysia and Singapore. Others that possessed a more comprehensive set of laws have decelerated moderately. Finally, in the 1990s the intellectual property systems of ASEAN countries looked more similar than they presently do. During the late 1980s and early 1990s, the ASEAN countries were pressurised chiefly by the United States and European Union to bring about contemporary intellectual property systems and bring about reform of the colonial laws.

The common issue that arises from these examinations is that both Asia and Australia have come up with some very comprehensive intellectual property laws in an effort to comply with intellectual capital laws that are active in developed countries. This is all aimed at improving the economic prospects of the individual nations as pertains to world trade as well as the overall economic health of the region. Of the entire region, China and Malaysia stand out as struggling with piracy issues and their reputation as such leads to various issues arising when dealing with branded products from multinational corporations. Since the branded products are known to be the most lucrative this puts pressure on this countries to bolster their enforcement mechanisms through the courts. All the countries examined have comprehensive laws in place to deal with this issue as well as being signatories to TRIPS Agreements.

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