WIPO Journal - World Intellectual Property Organization

212 The WIPO Journal
into the extant global IP policy and lawmaking order, they are keenly aware that the system has not served
their interests well. Increasingly aware of their new economic and political clout and the power in solidarity,
they have an opportune moment to break the now fragile hegemony of the present global knowledge cartel.
The history of IP demonstrates that when countries transition into hi-tech creative and innovative
economies, they become champions of stronger IP protection, as the United States, Japanese, German and
South Korean experiences demonstrate. 76 It is a history of getting to the top and kicking away the ladder. 77
The logic of that history dictates that given the political and economic disparities among the countries of
the South, especially in relation to the middle income or emerging regional powers like China, India,
Brazil, Mexico, Argentina and South Korea, this group of countries could soon get to the “crossover
point”. Singing the old tune, they could begin to succumb to the problematic “high-protectionist delusions” 78
of the present day knowledge cartels. Jerome Reichman observes that IP remains critically important to
the advancement of the emerging economies. He argues, rather bluntly, that they have two clear choices
on the table:
“One is to play it safe by sticking to time-tested IP solutions implemented in OECD [Organisation
for Economic Co-operation and Development] countries, with perhaps a relatively greater emphasis
on the flexibilities still permitted under TRIPS (and not overridden by relevant FTAs). The other
approach is to embark on a more experimental path that advanced technology countries currently
find so daunting.” 79
Similarly, broaching the issue of choices available to the high-income emerging powers in his reflections
on the undetermined future of the global IP order, Peter Yu observes:
“Although intellectual property in these countries will no doubt improve in the near future, there is
no guarantee that these countries will be interested in retaining the existing intellectual property
system once they cross over to the other side of the intellectual property divide. Instead, these new
champions may want to develop something different — something that builds upon their historic
traditions and cultural backgrounds and takes account of their drastically different socio-economic
conditions.” 80
Without over-flogging the issue, the ability of the emerging powers to chart a new global IP order will
depend, for the most part, on how they may successfully forge meaningful IPC4D. The success of this
and related efforts at coalition building will be undermined if they approach it from the sometimes unhelpful
confrontational binary of “us-and-them”, South-and-North or other related sentiments. Indeed, given the
reality of the boomerang effect on account of the overweening reach of the current global IP arrangement,
both developed and less-developed countries have valuable stakes in a reconfigured global IP order.
It is evident in the foregoing analysis that there are more areas of shared factor deficits, and more areas
of similarity in the socio-economic, political and cultural situations of the regional and emerging powers
potentially positioned to lead the charge to reform the global IP order, than there are areas of disparity
and difference among them. By way of just one example, those countries collectively share in the
transformative experiences of the two defining technologies of the new knowledge economy—namely,
bio- and digital technologies—and the latter’s ubiquitous multiplier effects. Not only have these technologies
76 See Yu, Building Intellectual Property Coalition for Development, 2008, p.24.
77 See Drahos and John Braithwaite, “Hegemony Based on Knowledge: The Role of Intellectual Property” (2004) 21 Law in Context 204; see also
Lawrence Lessig, “The Creative Commons” (2003) 55 Florida Law Review 763.
78 See Reichman, “Intellectual Property in the Twenty-first Century” (2009) 36 Houston Law Review 1115, 1121.
79 Reichman, “Intellectual Property in the Twenty-first Century” (2009) 36 Houston Law Review 1115, 1126.
80 Yu, “The Global Intellectual Property and Its Undetermined Future” (2009) 1 WIPOJ 1, 13.
(2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited