The Journal of World Intellectual Property (2009) Vol. 12, no. 1, pp. 40–74
doi: 10.1111/j.1747-1796.2008.00349.x
Neo-Colonial Aspects of Global Intellectual
Property Protection
Andreas Rahmatian
University of Leicester
An essential instrument in the process of neo-colonialism by economic means is the
establishment of a legal framework of international trade that confers legally enforceable
rights that support and safeguard economic penetration and control. This includes, in a
similar way as in colonial times, the guarantee of protection of foreign property rights in
dependent regions. Today, intellectual property rights fulfil this colonizing role to a large
extent. It will be shown that the implementation of the Agreement on Trade-Related Aspects
of Intellectual Property Rights is one major device that drives such an economic neocolonialism forward. This is reflected in the history of the making of this treaty, as well as in
the methods of enforcement of intellectual property rights, which will be demonstrated in the
example of China. Besides this international expansion of Western-style intellectual property
rights, there is another, seemingly contrasting and alternative non-proprietarian, legislative
project, which nevertheless has neo-colonial effects: the protection of traditional cultural
expressions in the context of ‘‘traditional’’ arts. The article discusses that, despite presumably
good intentions, this measure reflects colonial features, such as the concept of indirect rule,
and invites segregationist legislation.
Keywords post-colonialism; TRIPS; traditional cultural expressions; property theory
The Concept of ‘‘Neo-Colonialism’’
The term ‘‘neo-colonialism’’ is perhaps even more imprecise than ‘‘colonialism’’ and
both terms are often used in an emotive way. Colonialism has been defined as the
domination of an indigenous (or forcibly imported) majority by a minority of foreign
invaders, whereby the colonial rulers, in pursuit of their own interests and convinced
of their own superiority and mandate to rule, implement the fundamental decisions
affecting the lives of the colonized people (Osterhammel, 1997, pp. 16–7). ‘‘Imperialism’’ is more comprehensive as colonialism because this concept comprises all forces
and activities contributing to the making and maintenance of transcolonial empires
for the purpose of the enforcement of its own national interests in the international
legal and political systems (Osterhammel, 1997, p. 21). The classical colonial era has
come to an end; when exactly, is unclear, probably with decolonization from the
1960s that lasted until about the 1980s (Osterhammel, 1997, p. 115, p. 118). Besides
the formal colonial empire in the classical age of colonialism between 1914 and 1945
(Fieldhouse, 1983, p. 112), there always existed an ‘‘informal empire’’ in which a
nominally independent and sovereign state without a colonial administration was
nevertheless exposed to selectively applied pressure. This usually occurred in the form
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of trade sanctions and unequal treaties, but also through military threat. The
dominant state (or group of states) had a distinct economic superiority that enabled
it to influence substantially or control the economic and political system of the
weaker state for the purpose of safeguarding its own economic interests (Osterhammel, 1997, pp. 19–20). In the nineteenth century, this was Britain’s strategy over
the Latin American states, China, Japan, Thailand, Persia and other formally
sovereign countries, which were requested to open their market to British products
and to guarantee foreign property in their own territory (Osterhammel, 1997, p. 19).
This concept of the ‘‘informal empire’’ has been applied to the situation that
countries found themselves in after decolonization in the third quarter of the
twentieth century. It was originally Marxist and neo-Marxist writers who pointed
out that the primary aim and effect of the ‘‘informal empire’’ of European
capitalism in less developed countries was to exploit their resources and to ‘‘underdevelop’’ them (Fieldhouse, 1983, p. 9; Gallagher and Robinson, 1964; p. 103;
Mommsen, 1982, p. 125).1 However, one should not reduce this phenomenon to the
restricting interpretation of Marxist historical determinism.2 Economic ‘‘imperialism’’ or, arguably more aptly, ‘‘colonialism’’ by multinational corporations, backed
by Western governments in one way or another, evidently exists (Bush, 2006, pp.
197–8), although an exact definition of economic colonialism can be difficult to
achieve at present (Mommsen, 1982, p. 137). The term ‘‘neo-colonialism’’ refers to
the existence of this phenomenon after formal decolonization (Woddis, 1967, p. 28,
pp. 43–4)3 and may suggest, incorrectly, that there is a discontinuity between the old
informal empires and the present ‘‘new’’ ones. In fact, the informal empire of
economic colonialism may have changed its shape somewhat, but has been in
existence throughout the times of colonization, imperialism, decolonization and the
present time. Economic colonialism is exercised by corporations and governmental
agencies under their influence and backed by legal instruments.4 These corporations
were historically (and still are) typically based in the United States or the former
colonial powers, but with the acquisition and merger wave in the 1990s, they can now
be of any or no specific nationality. In the times of classical colonialism and
imperialism, the motive for economic expansion was also economic (Hobsbawm,
1994, pp. 66–8). But the major difference between classical colonialism, which was
incorporated into formal imperialism as from the 1880s, and present neo-colonialism
through economic pressure is that in classical imperialism the acquisition of colonies
and the establishment of political control in them was motivated by national pride,
prestige and international political power, where commercial success was desired but
ultimately secondary,5 while for modern neo-colonialism, economic success is the
only driving force. Political prestige and strategy are merely relevant to serve
commercial interests but play almost no separate role. Hence, no formal political
control in the dependent state is sought (compare Fieldhouse, 1983, p. 53; Osterhammel, 1997, p. 20).
An essential instrument in the process of neo-colonialization by economic
means is the establishment of a legal framework of international trade, which
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confers legally enforceable rights that support and safeguard economic penetration
and control. This includes, as a prerequisite for the making of an ‘‘informal empire’’
like in colonial times, the creation of property rights and the guarantee of protection
of foreign property rights in dependent regions. However, unlike in the colonial era,
the most important property rights, which fulfil this role in the twenty-first century,
are intellectual property rights. This is because intellectual property rights do not
attach to objects of physical substance, like land, raw material or plant and
machinery, but are abstract legal concepts of unlimited flexibility as regards extent
and time. The fairly recent implementation of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) is one major device that drives
economic neo-colonialism forward, and the process of the making of TRIPS also
demonstrates instructively this development. The history and ‘‘colonizing’’ effects
of TRIPS on developing countries will be discussed below under the second section.
As TRIPS is the central international intellectual property instrument today, there
is no need to discuss additionally the relevant treaties of the World Intellectual
Property Organization (WIPO)6 in the following, but what will be said with regard
to TRIPS generally also applies to these. In contrast to the international intellectual
property regime of TRIPS modelled on Western laws, a seemingly anti-proprietarian approach (Drahos, 1996, pp. 210–2) to indigenous resources seeks to introduce
a cultural resource protection regime.7 But this idea of a protection of traditional
cultural expressions is, insofar as it covers artistic expressions in a broad sense, an
equally neo-colonial measure, perhaps an even more insidious one. This will be
discussed under the third section.
TRIPS and Other International Intellectual Property Conventions and their
Colonizing Impact on the Non-Western World
Introduction of Western Minimum Standards
The problems that the establishment of an international legal framework for world
trade could pose for developing countries had been noticed right from the beginning. In 1964, the United Nations Conference on Trade and Development (UNCTAD) was founded because it was felt by developing countries that the pattern of
world trade disproportionately favoured the industrialized nations (Blakeney, 1996,
p. 26; Zamora, 1995, p. 512, p. 518). In the course of the negotiations leading to the
Agreement Establishing the World Trade Organization (WTO Agreement), a
convergence in the positions of the industrialized and the developing countries
has repeatedly been attempted, with some success (Blakeney, 1996, p. 6). When the
Uruguay Round of the General Agreement on Tariffs and Trade (GATT) ended
with the Final Act on the results of the Uruguay Round and the WTO Agreement in
Marrakesh on 15 April 1995, the creation of the WTO as a specialized agency of the
United Nations (UN) realized the hope (reaching back to the time of the creation of
the UN itself) of an international organization with responsibility for world trade
(Blakeney, 1996, p. 29, p. 36; Jackson, 1998, pp. 24–9; Zamora, 1995, p. 503, p. 506);
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thus, in theory, the promotion of world trade should benefit each member, developed
or developing alike. The preamble to the WTO Agreement states expressly in the
second paragraph that especially the least developed countries should be secured ‘‘a
share in the growth of international trade commensurate with the needs of their
economic development’’. This overriding principle also applies to TRIPS (appendix
1C to the WTO Agreement), and the preamble to TRIPS expressly recognizes (in
paragraph 6) the special needs of the least-developed countries as far as the required
domestic implementation of laws and regulations is concerned, ‘‘in order to enable
them to create a sound and viable technological base . . .’’.
These aims indicate the intention to create the implementation of a benign
system of universal common standards of intellectual property rights for the mutual
benefit of all nations. However, it is well known that originally the principal
objective of what was to become TRIPS was actually the fight against piracy of
Western intellectual property rights in developing countries. In the 1970s, the
realization of the adverse effect that the increase of sales of counterfeited trademarked goods had on trade income prompted industrialized countries to reach an
‘‘Agreement on Measures to Discourage the Importation of Counterfeit Goods’’,
whereby the United States took the lead.8 It was also the United States that pushed
for a recognition of legislative measures for the protection of intellectual property
rights as to be considered within the jurisdiction of GATT, and not of WIPO
only, as developing countries, especially Brazil and India, had argued (Blakeney,
1996, pp. 2–3; Zamora, 1995, p. 529). This was the starting point for the present
situation of TRIPS being within the WTO framework (Drahos and Braithwaite,
2002, p. 109).9 The ‘‘anti-counterfeit’’ origin of TRIPS does not appear in its
final preamble (Blakeney, 1996, p. 9), but the preamble makes clear that the
objective of TRIPS is ‘‘the provision of effective and appropriate means for the
enforcement of trade-related intellectual property rights, taking into account
differences in national legal systems’’, which obviously encompasses measures
against counterfeited goods.
Thus, TRIPS grew out of the endeavours by the Western industrialized world
to safeguard and enforce their own Western intellectual property rights, based on
Western concepts, in the non-Western, and typically developing, countries.10
Theoretically, this could have been achieved without any reciprocity, because what
really matters to Western interests is that Western rights are respected in a nonWestern context and culture, especially by way of an effective combat against
piracy. Thus, bilateral agreements could have been reached, ensuring that, say, a US
patent will be duly protected and enforced in developing country X, without the
requirement that a patent granted in X will be enforced in the United States, or
indeed, without X even being required to maintain a national patent law that could
enable X to grant patents itself; hence, there would be no (theoretically) enforceable
right in a country outside X. Such a measure would be openly colonial in its
approach, but politically unsustainable in the late twentieth century or today,
because the developing countries have achieved sufficient political counterbalance
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against Western interests during the period of decolonialization that allows them to
counteract such strategies at a large scale.11
TRIPS wishes to represent a compromise that may have been honestly
conceived as such in that it leaves some flexibility for developing countries (Correa,
2002, p. 52), but, as it is modelled on Western intellectual property legislation, it is
nevertheless in effect slanted in favour of Western interests (Correa, 2000, p. 3;
Drahos and Braithwaite, 2002, pp. 11–6, pp. 143–6; Robbani, 2005, p. 565, p. 571).
The ‘‘provision of effective and appropriate means for the enforcement of traderelated intellectual property rights’’ (preamble, part C) is obtained through an
introduction of minimum standards of intellectual property protection (article 1(1)
of TRIPS). These minimum standards are determined by TRIPS itself, which is
remarkably detailed for an international instrument in respect of the substantive
law of the respective intellectual property rights,12 and by broad reference to the
central international intellectual property conventions, especially the Paris Convention for the Protection of Industrial Property 1883 (Paris Convention) and the
Berne Convention for the Protection of Literary and Artistic Works 1886 (Berne
Convention).13 The principle of minimum standards as a basis of mutual recognition and protection of intellectual property rights is reinforced by the national
treatment rule (article 3), which echoes the existing intellectual property conventions in this respect.14 As a result, non-Western countries are required to introduce
comprehensively the Western regime of intellectual property rights, irrespective of
whether this regime is necessarily compatible with, and useful to, their own cultures
and economies;15 otherwise, they would not be able to conform to the protection
obligation of Western intellectual property rights in their own territory. NonWestern countries are also expected to undergo an industrialization process
according to the model of Western industrialized nations to create a context in
which Western intellectual property rights would then become meaningful (Gana,
1996, p. 738; Ngenda, 2005). In return for the protection of their own rights,
Western countries could generously agree to recognize Western-type intellectual
property rights originating from developing countries, because these rights were
unlikely to arise often and would not pose a real competitive threat.16 This is a good
example of the liberal ideal of two equal contracting parties that is blind to the real
imbalance created by political and economic realities. It could also be seen as a
modern version of constructed savagery of the non-developed world that will be
overcome by the gift of intellectual property rights from the developed and civilized
nations.17 How Western in nature TRIPS effectively is can be shown by the fact that
Western national legal systems have had to adapt little to TRIPS,18 while, for
example, Latin American and Carribean states had to make significant changes in
their intellectual property laws to implement the minimum standards (Correa, 2000,
p. 101, p. 111).19 More recently, TRIPS also serves as a bottom line for further
extension of IP protection that the developed world continues to push for in
bilateral ‘‘TRIPS-Plus’’ agreements with countries of the developing world
(Drahos, 2001, p. 805).
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Such ‘‘friendly nudges’’ towards adaptation of international standards are
obviously not a development of the post-colonial era. The national treatment
provision of the Paris Convention in article 2 intended to compel Paris Union
members to provide mutually adequate industrial property laws. It contributed to
Switzerland’s decision to introduce a patent law (which it did not have when it
joined the Paris Union) in order to be able to give effect to this obligation towards
nationals of the Paris Union (Oddi, 1987, p. 869). The Netherlands also enacted
patent laws that it had abolished some time before (Bender, 2000, p. 54; Drahos and
Braithwaite, 2002, p. 36). The Paris Convention, and later the Berne Convention,
had the then industrialized Western countries of the 1880s as relevant potential
members to the Paris/Berne Union in mind; the non-Western world (where it did
not have the status of a colony anyway and was therefore part of the Paris/Berne
Union; see Drahos, 2002a, pp. 766–7; Drahos and Braithwaite, 2002, p. 75) was not
perceived as a significant candidate for such conventions, and conflicts with
indigenous cultures as a result of this transplantation of rights were then unlikely
to be noticed as a potential problem. Sensitivity in relation to one-sided technology
transfer and possible lack of economic equality was also less developed in the
nineteenth century, despite an otherwise generally far greater tendency to arrogant
nationalism among the European nations. An example is the awkward British
standard gauge of railways of 56 and a half inches (1,435 mm) that can be found in
much of Continental Europe (which adopted the metric system far earlier) because
George Stevenson’s first locomotives delivered from England were produced with
this gauge. The legal protection of such technological innovations usually follows
suit and this may help explain why it was possible at all to agree on a modest legal
standardization through the Paris and Berne Conventions in the much more
belligerent atmosphere of the nineteenth century.
Western laws are often declared as the best-developed rational legal solution,
but an economically powerful Western country does not necessarily have to agree
readily to them. What real bargaining power can achieve is shown by the example of
the United States. For instance, the United States did not sign up to the Madrid
Agreement Concerning the International Registration of Marks 1891 (Madrid
Agreement),20 the international convention for the international registration of
trademarks through a single application, which, unlike TRIPS, contains no substantive provisions on trademark protection. The United States objected to the
‘‘central attack mechanism’’ in article 6, according to which the invalidation of a
home country registration within the first 5 years of registration leads to the
invalidation of all international registrations, because under US trademark law
trademarks can be attacked on more grounds than in other countries, and so the
Madrid regime would have put US trademarks at a disadvantage. The United
States also opposed the fee structure, which did not reflect the true costs of a full
official examination, and the fact that French was the only official language, which
would have required the US Patent office to translate documents into French at a
significant cost (Klein, 2001–2; Samuels and Samuels, 1993–4, pp. 443–4). Many
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other Western nations also found the Madrid Agreement unattractive and never
joined (e.g. United Kingdom, Ireland, Denmark and Greece). The fact that principal
industrialized countries, some of which were also members of the European Union,
found the Madrid Agreement too unattractive to join, led to endeavours by the
Madrid Union Assembly (the governing body of the Madrid Agreement) and WIPO
to reach a compromise that would be acceptable to these nations. The result of these
negotiations was the adoption of the Protocol Relating to the Madrid Agreement
Concerning the International Registration of Marks (Madrid Protocol) in 1989,
according to its title an addendum to the Madrid Agreement, but in fact a new treaty
(Cornish and Llewelyn, 2007, p. 612), which provided a significant moderation of the
central attack rule,21 a revised fee structure and the introduction of English as the
second official language (Klein, 2001–2, pp. 486–7). Accordingly, both the United
States and the United Kingdom found themselves able to accede to the Madrid
Protocol, which currently has 72 members.22
The powerful position of the United States can also be shown in the surrounding circumstances of its decision to join the Berne Convention in 1989 after over a
hundred years of hesitation (Hatch, 1989, pp. 171–2).23 The main reasons for this
were initially the reluctance to give copyright protection to works by foreign
authors,24 later the incompatibility of the ‘‘manufacturing clause’’25 with the
prohibition of formalities for copyright protection in the Berne Convention, and,
after the Rome Revision of the Berne Convention in 1928, the reservation against
the recognition of moral rights in article 6bis (Hatch, 1989, pp. 173–5). The eventual
accession of the United States was probably decisive in turning the Berne Convention into the principal international copyright convention as opposed to the
Universal Copyright Convention (UCC),26 and accordingly, TRIPS incorporates
the Berne Convention,27 but does not mention the UCC. However, the UCC was
initiated mainly by the United States as an alternative international copyright
protection measure under the auspices of United Nations Education, Scientific and
Cultural Organization (UNESCO), which would not conflict with existing US
copyright law and compensate for the United States’ absence from the Berne
Convention (Hatch, 1989, p. 176).28 When the United States withdrew from
UNESCO in 1983, the utility of UNESCO for promoting US interests through
the UCC diminished exceedingly, as well as US-American influence on international
copyright law in general. This triggered a renewed interest of the United States to
join Berne (Bettig, 1996, pp. 221–3; Drahos and Braithwaite, 2002, p. 130), coupled
with the need to get a better grip on increasing piracy of US copyright material. At
the same time, the United States sought to preserve existing national copyright law
to the greatest extent possible, in that it decided to adopt a minimalist approach to
compliance with the requirements of the Berne Convention (Hatch, 1989, p. 178,
p. 189). The Berne Convention Implementation Act 1988 therefore abolished the
obligation for foreign authors to register their copyright as a prerequisite for an
infringement action, but preserved it for US authors (Hatch, 1989, p. 194).
Furthermore, it did not enact moral rights, and the United States maintained that
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existing statutes and common law fulfilled article 6bis, including remedies based on
the Copyright Act,29 the Lanham Act30 and common law remedies under contract,
defamation and unfair competition laws (Hatch, 1989, p. 182). Article 6bis(3) perhaps
indicates the acceptability of such an interpretation. But the United Kingdom, which
initially adopted the same approach to moral rights as the United States, eventually
felt obliged to enact specific moral rights in the Copyright Act 1988 in order to
comply with article 6bis,31 and the same happened more recently in Australia.32 It was
in fact not entirely clear whether the United States copyright regime really conformed
to the moral rights obligations under Berne, but the United States declared
unilaterally that it did conform, and the US Congress stated that the implementing
bill would neither expand nor reduce the scope of existing US copyright law. As an
additional precaution, the US Congress made clear that the Berne Convention and its
moral right provisions would not become self-executing upon ratification (Hatch,
1989, pp. 189–90). Given the political and economic position of the United States, a
challenge as to the accuracy of these statements is probably confined to academic
discussion; a political impact is unlikely. Any possible political pressure from other
countries on the United States to adopt a more expansive moral rights regime, which
would obviously conflict with the interests of the large US copyright industries, would
realistically have no effect. The position of the United States on moral rights also left
traces in TRIPS: the Berne Convention has been made part of TRIPS to a large
extent, but its moral rights provisions under article 6bis have been excluded,33 in part
as a result of the successful opposition by the US film industry (Drahos and
Braithwaite, 2002, p. 176; Macmillan, 2002, p. 491). Theoretically, however, if
existing law of the United States had indeed been compliant with article 6bis, the
inclusion of the moral rights provisions in TRIPS should have been unproblematic.
The fact that the Western world, particularly the United States, can dictate the terms
of international legal rules by virtue of their obvious economic superiority, and can at
the same time interpret these rules in a form suitable to their own interests without
any realistic challenge, indicates a legal framework on which an ‘‘informal empire’’ is
being built.
Would a country like Togo or Oman be able to produce similar effects on the
making of international trade conventions? In the future, however, especially China
could have a very substantial influence.
Safeguard of Enforcement of Intellectual Property Rights Originating from the West:
The Example of China
In the 1980s, the GATT/TRIPS negotiations in the forthcoming GATT round
almost came to a deadlock that would last for years. This contributed to individual
measures by the United States to counteract, in its view, flawed intellectual property
protection regimes in developing countries. The Omnibus Trade and Competitiveness Act 198834 introduced a ‘‘Special 301’’ regime that required the United States
Trade Representative to prepare an annual review of the intellectual property
practices of the trading partners of the United States. Countries that did not
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provide adequate and effective protection of intellectual property rights were to be
placed on a watch list, or priority watch list, for fast-track investigation and possible
trade retaliation through increased duties or import restrictions. The first priority
countries named under ‘‘Special 301’’ in 1991 were India, Thailand and China, but
also the European Communities and Australia, all for different reasons (Blakeney,
1996, p. 5; Farkas, 1996, p. 497; Kuruk, 2004, pp. 432–5). The United States
brought a unilateral enforcement action against China again in 1994 (Farkas, 1996,
p. 472; Schlesinger, 1995, pp. 138–9). The major concern of Western industries
especially in relation to China and Thailand was the inadequate copyright protection of computer programs and sound recordings. This concern found its way into
TRIPS, in that article 10(1) requires the protection of computer programs as literary
works under the Berne Convention (Correa, 2000, pp. 129–30). The Berne Convention, however, does not actually list computer programs as literary works in its
illustrative catalogue of literary and artistic works in article 2(1). Despite the fact
that pressure was sufficiently successful to get a more comprehensive intellectual
property protection into TRIPS that served Western business interests, the United
States continued to threaten developing countries with sanctions under section 301
after TRIPS came into effect in relation to software as well as patent protection of
pharmaceutical products,35 a measure that was arguably in violation of TRIPS
(Correa, 2000, p. 10).
In the 1980s, it became clear that the greatest anxieties of the industrialized
countries, above all the United States, concerned the biggest future market: China.
China provides a particularly good example for the way in which the Western world
regards or constructs non-Western cultures and accordingly perceives problems of
enforcement of intellectual property rights. Especially the United States demanded
an adequate intellectual property rights enforcement as a prerequisite for China’s
accession to the GATT/WTO. China had been permitted to take part in the
Uruguay Round of negotiations as an observer but it did not succeed in becoming
a founding member of WTO,36 mainly because of political opposition from the
United States and European countries. Apart from concerns regarding intellectual
property protection, the industrialized nations maintained that because of its size
China should not be allowed to participate in the WTO as a developing country and
therefore benefit from the favourable conditions (transition periods) that this status
entails (Farkas, 1996, pp. 472–3; Schlesinger, 1995, pp. 135–6). When China joined
the WTO in 2001, it undertook to amend its intellectual property laws to bring them
‘‘into full compliance with and full application of the TRIPS Agreement’’, and to
make ‘‘enhanced IPR enforcement efforts through the application of more effective
administrative sanctions . . .’’.37
The enactments of intellectual property laws were, however, not solely the
result of external pressure. The Chinese open-door policy of the 1980s gradually
recognized private economic rights and led to far-reaching changes in the intellectual property regime. But the United States tended to take little notice of China’s
significant improvements on intellectual property protection and enforcement that
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started with a new Trademark Law in 1982,38 a new Patent Law in 1984 and a new
Copyright Law in 1990,39 and that accelerated with the advent of TRIPS in 1995
(Schlesinger, 1995, pp. 94–7). The United States’ ignorance, especially in relation to
China’s Copyright Law 1990, was in part due to simple mistranslations of the
Chinese original legal text (Pendleton and Chengsi, 1991, pp. 257–8, with several
examples). As from the early 1990s, China’s development of judicial institutionalization of intellectual property enforcement could no longer be dismissed as
insubstantial.40 China entered into a memorandum of understanding on intellectual
property with the United States in January 1992, which included the commitment to
accede to the Berne Convention, notably only 3 years after the United States itself
had joined it (Schlesinger, 1995, p. 99, n. 28).41
All this shows that the conflict between the United States/Europe and China is
mainly based on the following assumptions: (1) the Western world regards China as
an essential market for the Western economy that is to be safeguarded and ringfenced for the preservation of Western interests, even if China may otherwise be
considered as commercially or culturally less developed;42 (2) these interests are for
a large part to be preserved by way of an introduction of Western-style intellectual
property rights that would ensure the protection of intellectual property originating
from Western countries (the protection of intellectual property stemming from
China itself is probably seen as a corollary that is not regarded as an interference
with Western interests—an increasingly outdated view);43 (3) as intellectual property rights, especially copyright, are considered alien to Chinese culture and legal
tradition, they need to be engrafted on the Chinese legal system if China is to be
permitted to partake in commercial relations with the dominant economic powers
and to join the WTO; and (4) even if China does enact laws in compliance with
international obligations, either under the Berne or the Paris Conventions, or under
TRIPS (which largely incorporates these), it is likely to be found wanting, and in
case of controversy, the United States and Europe are correct in their assessment,
while China remains in the wrong.
However, this line of argument contains several misconceptions. Intellectual
property rights are not an entirely new phenomenon in China. It seems to be little
known that, before the People’s Republic of China came into existence, China did
have intellectual property rights that were often drafted with the input of Western
experts: the Trademark law in 1904 promulgated by the leaders of the Qing dynasty,
the Patent law 1944 by the nationalist government (following the Provisional Rules
on the Encouragement of Arts and Crafts of 1911) and the Copyright law 1910,
published by the Qing government, then replaced by a law in 1915 under the
republican government that was itself superseded by a copyright law in 1928
enacted by the nationalist government (Schlesinger, 1995, pp. 99–100, p. 107,
p. 112). These laws were then abolished under the communist regime, although
regulations for a token protection of patents were adopted instead in the 1950s.
Their legal effect was diluted further in the 1960s (Schlesinger, 1995, p. 107 with
further references).
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It has usually been said that for China copyright protection is historically an
alien concept44—an explanation for the (unquestionably) widespread piracy industry in China45 and, for the US government in particular, a justification for the
exertion of further pressure on China to comply with Western laws. But this
prevalent Western perception has recently been challenged (Shao, 2005). Unauthorized imitation was not necessarily tolerated or even encouraged. Printing was
invented in China in the eighth or the early ninth century, and publishing for
commercial purposes started on a large scale in the eleventh century. This
necessitated the establishment of a publishing control mechanism by the state, not
only for the purpose of censorship and the maintenance of the emperor’s authority
but also in order to monitor the quality of printed books when cheap editions
began to inundate the market. In the sixteenth century, the Ming government
issued decrees to prohibit and seize books or printing blocks that were full of
errors and misprints, especially if they were classical philosophical texts used by
students for examination preparation (Shao, 2005, p. 403, p. 407). As early as in the
twelfth century, warnings and formal petitions for decrees against unauthorized
reprinting emerged, partly by authors who were publishers themselves. The decrees
granted then often appeared in the printed copies. During the Ming period,
it was common practice to print announcements in books that prohibited pirate
printing and threatened with prosecution. The usage of petition and decree
disappeared only with the Copyright law 1910 (Shao, 2005, pp. 423–8 with
examples). An overemphasis on tradition in Western interpretations of Chinese
culture led to a denial of the relevance of originality with Chinese individual writers
and artists; yet both Confucian philosophers and literati well back into the fifteenth
century encouraged considerably independent thinking and creativity and mocked
writers or poets who confined themselves to mere imitation of past masterpieces
(Shao, 2005, pp. 414–6). Outright plagiarism was condemned as immoral, sometimes even equated with stealing, and a line was carefully drawn in all divisions of
the arts between desirable imitation that engages with and reveres the tradition, and
unoriginal and inartistic replication or even plagiarism. The boundaries were
perhaps somewhat different in each art form (Shao, 2005, pp. 417–8, n. 99). In
this context, one should not forget Plato’s and Aristotle’s teachings on the concept
of imitation in the arts (linking poetry, music, dance, painting and sculpture
together) that were very influential in the Western history of ideas (Kristeller,
1997, p. 93).
Even this very brief discussion of the history of copyright in ancient China
indicates that Western governments tend to construct non-Western cultures in a
certain way (a kind of ‘‘Orientalism’’ according to Edward Said) and then
reprimand the non-Western countries for that distorted image as not conforming
with (more advanced) Western standards, without realizing properly the actual
culture behind the façade of prejudice. Such an approach can also lead to misguided
pleas of understanding, as has happened with China. The Western industrialized
nations have been urged by one author to reduce threatening sanctions that should
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force China to combat piracy: China cannot be expected to appreciate the Western
concerns because the notions of originality and authorship are apparently alien to
Chinese culture and tradition (Alford, 1996–7, pp. 140–1). This may be wellmeaning, but does not lead to a true understanding of different cultures of trading
partners, and trade relations based on false premises are unlikely to lead to lasting
results. In fact, some aspects of non-Western cultures do reflect Western concepts,46
some do not and, in relation to the latter, careful negotiation and compromise based
on mutual understanding needs to be sought. What happens instead, again, is the
stylizing of a kind of inferior otherness in a modern appearance, but in substance
similar to classical colonialist thought (compare Osterhammel, 1997, p. 108). The
yardstick and reference point is the system of Western intellectual property laws
that conveys progress and is perceived as the product and safeguard of superior
Western culture. One may have to show leniency towards the non-Westerners who
are currently ‘‘behind’’, but it is imperative to define them as being ‘‘behind’’, and
there is a self-imposed duty to entice them into the more prosperous, and morally
better, Western economic system.
However, because China now has a Western-style regime of intellectual
property rights and an increasingly effective system of enforcement, and is well
on its way to becoming one of the leading economies worldwide, the pressure for
compliance with Western intellectual property protection could backfire. (Other
candidates in this respect may be India and Brazil.) For example, in 2007, the
United States filed requests for consultations under the WTO dispute-settlement
mechanism47 with China. In the first request, the United States seeks consultations
with China on (a) the threshold requirements for criminal procedures and penalties
concerning intellectual property rights in Chinese law, (b) the disposal of infringing
goods seized by Chinese custom authorities, (c) the position of copyright protection
of works not authorized for publication or distribution in China and (d) the lack of
criminal sanctions against persons involved in unauthorized reproduction or
distribution of copyright-protected works (Roy, 2007, p. 476).48 In the second
request, the United States claims that China reserves in several legal regulations ‘‘to
certain Chinese state-designated and wholly or partially state-owned enterprises the
right to import films for theatrical release, audiovisual home entertainment
products (e.g. video cassettes and DVDs), sound recordings and publications (e.g.
books, magazines, newspapers and electronic publications)’’.49 The United States
has also stressed that these measures contravene the free trade principles of the
WTO50 that China explicitly undertook to adhere to in the protocol on the
accession of People’s Republic of China (Accession Protocol) in 2001.51 The second
dispute is not specifically in relation to intellectual property rights under TRIPS,
but it involves the distribution of typical products of the US copyright industries.
However, once China generates more and more intellectual property rights of
universally recognized high commercial value and obtains sufficient economic and
political power to enforce them, it may well seek to enforce its rights, for instance
with regard to its own copyright (entertainment and software) industries, in and
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against the United States, and perhaps even as aggressively as the United States.52
This obviously also applies, mutatis mutandis, to patent and trademark rights,
protection against unfair competition and breach of confidence. Furthermore,
China is the prime example of the fact that capitalist economic structures are
perfectly able to develop entirely without democratic concepts, and any democratic
accountability or checks and balances, which could counteract governmental
regulation that sanctions certain undesired moves of the business community, are
not at all available, even less so than in Western democracies. It may well be that in
the next decade the Western world will curse its insistence in the previous decade on
the introduction of a Western standard of intellectual property protection.
Technology Transfer as an Objective of Protection and Enforcement of Intellectual
Property Rights
Article 7 of TRIPS claims that the protection and enforcement of intellectual
property rights (especially patents) are important prerequisites to ‘‘the promotion of
technological innovation and to the transfer and dissemination of technology’’.53
This is rather astonishing and tends to suggest a contradiction in terms. As
intellectual property rights are property rights that confer exclusive private rights
to intellectual resources and the knowledge they contain, the promotion and
transfer of technological innovation is solely dependent on the willingness of the
intellectual property right owners to part with these resources, and if there is an
imbalance between intellectual property-producing countries and countries that are
mostly users of intellectual property, the economically powerful intellectual property producers, strengthened by the safeguard of their intellectual property rights
globally, will dictate the terms of that transfer, especially by way of determining the
fees/royalties for the grant of licences (Correa, 2000, pp. 18–9). This is indeed the
reality: in 1999, 4 years after TRIPS came into existence, developing countries still
accounted for only 4% of world research and development expenditures, and thus
have remained strongly dependent on transfer of technology from developed
countries (Correa, 2002, p. 41). The ‘‘mutual advantage of producers and users’’
and the ‘‘balance of rights and obligations’’ that article 7 also refers to are principles
that are unlikely to get significant relevance, because the TRIPS’ requirement of
accomplishing the highest possible level of protection of intellectual property rights
(which are concentrated with the industrialized nations) stands against them.
Article 7 also states that the protection of the intellectual property rights ‘‘should
contribute’’ to social and economic welfare, which may indicate that intellectual
property protection is not an end in itself and that it is not right holders alone who
should benefit (UNCTAD–International Centre for Trade and Sustainable Development [ICTSD], 2005, p. 126). However, the only effective measure for the
implementation of such objectives is a relatively generous compulsory licensing
regime. Most freedom in this respect can be found with regard to patents (article 31
of TRIPS, see Correa, 2007, p. 311), which allows developing countries (in theory)
some leverage. But, for example, African countries have rarely taken up this right
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even for essential medicines (Correa, 2002, p. 48, and generally on developing
countries, Matthews, 2005, p. 423). Compulsory licences are more restricted
(articles 9(1), 13 of TRIPS)54 in the case of copyright, and they are completely
prohibited for trademarks (article 21 of TRIPS). This reflects the fact that article 7
refers to transfer of ‘‘technological innovation’’ only, and thereby implicitly
excludes copyright and trademarks that TRIPS otherwise covers. The power of
trademark rights should not be underestimated, because it is the strategic package
of branding and patenting of technology, especially biotechnology and pharmaceuticals, which ensures control of worldwide product distribution.55 If a compulsory licence is granted for the production of a generic product in respect of patented
medicines that are marketed with a trademark, then it is only a question of time
until the patent/trademark owner will claim that the compulsory patent licence
undermines his hard-earned goodwill denoted by the trademark with which the
origin and quality of the original product are associated. The generic product can
obviously not be marketed under his trademark, but could nevertheless still be
associated with the trademarked original and could be regarded as potentially
diluting the trademark at some point.56 Hence, if the trend towards further
expansion of intellectual property protection continues, the compulsory licence,
although acceptable with regard to the patent right in principle, could finally be
considered as not permissible because of its effects on the linked trademark right.
The close connection with trademark rights also applies to copyright-protected
products of the entertainment industry, most prominently, cartoon characters and
related merchandize (Drahos and Braithwaite, 2002, p. 167, p. 177). While patents
and copyright eventually expire, trademark rights can last forever, if renewed in
time. The regime of TRIPS ensures a flow of technology transfer from developed
countries to developing countries, not conversely, and with many countries this will
not change in the foreseeable future.57 Whether the requirement of intellectual
property protection under TRIPS serves as an incentive to innovation and cultural
development (following the customary argumentation)58 is most doubtful (Khor,
2002, p. 205). Furthermore, developing countries have little or no adequate human,
technological and financial resources to conduct research and development, which
is especially relevant in the pharmaceutical sector (Balasubramaniam, 2002, p. 93),
and, invariably, they cannot escape from the position of being predominantly
importers of intellectual property rights and perhaps benefit from the opportunities
TRIPS potentially holds for them (Drahos, 2002b, p. 163).59 Foreign companies do
conduct research and development in developing countries (especially India). But
this is by no means representative (Correa, 2000, p. 42) and, in any case, may have a
limited positive effect on the local economy, and on dissemination of knowledge
and social welfare. Even new dominant, although non-Western, economies are
presently no exception to the principle of a one-way flow (e.g. the economic
presence of China in Africa), and this applies to the technology and entertainment
sectors alike. The most recent complaint of the United States against China under
the WTO Dispute Settlement Understanding mentioned above is only one example
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of the reality of generally one-sided technology, product distribution and know-how
transfer that TRIPS effectively endorses.
For African countries in particular, TRIPS seems to have very little benefit,
both with regard to patents (medicine, technology) and with regard to copyright
(education, software technology). What made them sign TRIPS at all was a
combination of pressure from Western countries, lack of understanding of their
own interests and lack of representation in the negotiations leading to TRIPS,60 and
the belief, nourished by campaigns of Western lobby groups, to be able to attract
foreign investment and become part of the ‘‘knowledge economy’’ (Drahos and
Braithwaite, 2002, p. 190, p. 196; Ngenda, 2005). Improvements in the education
sector of developing countries could, for instance, be achieved by way of generous
licence deals by Western publishers for the printing of reasonably priced textbooks.
But such arrangements have thus far been confined to private initiatives of
individual publishers, and have not been based on the readily available licensing
mechanism in the Berne Convention61 for fear of undermining Western publishers’
interests (Drahos and Braithwaite, 2002, pp. 77–9).
Even where TRIPS does give licensing rights to developing countries, this does
not necessarily mean that they can exercise them without impunity. Perhaps the
best-known example in this respect was South Africa’s controversial adoption of the
Medicines and Related Substances Control Amendment Act (Medicines Act) in
1997, which provided in article 15(c) that the Ministry of Health ‘‘may prescribe
conditions for the supply of more affordable medicines in certain circumstances so
as to protect the health of the public’’, which included the permission to parallel
importation of certain pharmaceutical products. South Africa was faced with highpriced pharmaceuticals and that was particularly critical in respect of the HIV/
AIDS, malaria and tuberculosis crises (Correa, 2002, p. 45; Pretorius, 2002,
pp. 189–90).62 Section 15(c) permitted the parallel importation of cheaper patented
drugs that had been put onto the market elsewhere with the consent of the patent
owner. Although South Africa’s measure was legal under TRIPS, article 6 (exhaustion rule for parallel imports)63, article 28 (patent rights conferred subject to article
6 as referred to in the accompanying footnote) and article 31 (compulsory licensing
rules), the lobby of the pharmaceutical industry and US government agencies
applied great pressure on South Africa to have the law changed (Drahos and
Braithwaite, 2002, pp. 6–7; Pretorius, 2002, p. 190). The United States government,64 assisted by the European Union,65 claimed incorrectly that by allowing this
parallel importation, South Africa was in breach of its obligations under TRIPS. In
1998, over 40 pharmaceutical companies sued the South African government in the
South African courts. Political pressure and the threat of trade sanctions (particularly by the US under its ‘‘special 301’’ regime) increased until April 2001,66 when
the pharmaceutical companies withdrew from litigation and the United States
government relented. The reason for this unexpected move was a public campaign,
instigated by several non-governmental organizations (NGOs) and experts with
large media coverage, which resulted in widespread public condemnation of the
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attitude of the pharmaceutical companies and led to an enormous damage to public
relations for the industry. These events contributed to the Doha Declaration on the
TRIPS Agreement and Public Health in November 2001 (further development and
impact of the Doha Declaration in Matthews, 2006).67 The Doha Declaration
supplements the objectives and principles of TRIPS by confirming that WTO
members are not prevented from taking measures to protect public health, and
the provisions in TRIPS are to be regarded as providing the necessary flexibility for
the purpose of the promotion of access to medicines for all (paragraph 4) (Abbott,
2005, pp. 318–23).68
The NGO campaign against trade sanctions directed at South Africa and the
Doha Declaration may be examples of a limited positive development. However,
one should not forget that the United States, usually seconded by the European
Union to a greater or a lesser degree, do not consider TRIPS as the last instance
when pursuing the enforcement of intellectual property rights if TRIPS does not
seem to live up to their expectations. For example, in 2000, the United States
negotiated a bilateral free trade agreement with Jordan, which obliges Jordan to
conform to a higher level of patent protection than TRIPS prescribes (Drahos and
Braithwaite, 2002, p. 107; El-Said and El-Said, 2005, p. 66, p. 68, p. 74; Malkawi,
2006, p. 213, p. 221). Free trade agreements with other Arab countries followed (ElSaid, 2005, p. 57). This reflects a now common practice of developed countries to
push for ‘‘TRIPS-Plus’’ standards through bilateral agreements, whereby TRIPS
minimum standards for IP protection can be extended and the WTO disputesettlement mechanism can be bypassed in favour of the economically stronger
contracting party (Drahos, 2001, pp. 792–3; El-Said, 2005, pp. 58–9, p. 65;
Robbani, 2005, p. 570). In addition, compliance with TRIPS does not necessarily
protect from (the threat of) trade retaliations by the United States (Correa, 2000,
p. 110). This phenomenon also has certain parallels to colonialist thought. TRIPS
can be seen as a kind of constitutional document for international trade in the
context of intellectual property, and this ‘‘constitution’’ imposes duties, but also
gives rights and potentially protects the economically weaker party against
intrusions of the stronger party through the dispute-settlement mechanism.
The constitutional monarchies of the nineteenth century already had this idea of
constitutional protection in relation to civil liberties that obviously also influenced
the economic position of individuals. But in their role as colonial powers the
states were keen not to make the system of their mother country too effective in
their colonies, or they suspended such rights for ‘‘natives’’ altogether and pursued a
paternalistic autocracy. This conflicted with their idea of a rule of law at
home, which always showed when a ‘‘native’’ came to the mother country (if
he/she was allowed in at all) and claimed rights. Today, TRIPS is relied on where
it is expedient to support Western interests, but where its effect is a kind of
charter setting down the rule of law and its protective consequences, it
becomes circumvented by bilateral ‘‘TRIPS-Plus’’ agreements that render it
ineffective.
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All that pressure based on, and exceeding, TRIPS should not suggest that
Western countries themselves have an immaculate history of intellectual property
recognition. In the nineteenth century, the United States refused to grant copyright
protection of foreign authors until 1891. The US publishers reprinted (or pirated)
especially English authors (Charles Dickens) at a large scale (Madison, 1966,
pp. 52–3, pp. 57–60). In a report in 1876, the British Copyright Commission
considered, but rejected, the possibility of trade retaliation by denying protection to
American authors. Britain did not want to jeopardize foreign relations over this
matter, especially because American authors did not form a great market share in
Britain in any case (Drahos and Braithwaite, 2002, p. 33). It is most unlikely that
the United States would respond in a similar way today, but this is an instructive
example as to the way in which a developing country would now realistically have to
react when some of its cultural goods, which are potentially protected by copyright
and enforceable in the United States on the basis of the Berne Convention and
TRIPS, are appropriated by the US copyright industries.69 The additional problem
today is that, when compared with the example from the nineteenth century, a
citizen of a developing country may get into the situation to have to obtain a licence
against the payment of royalties for the use of ‘‘his/her’’ works in which US
industries assert ‘‘their’’ US copyright.
Exercise of Quasi-Sovereign Power Abroad through Intellectual Property Rights
One aspect of the globalization of intellectual property protection that deserves
greater attention does not appear in the substantive international intellectual
property law itself. This aspect consists of a combination of normative concepts
in property theory and socio-economic realities.70 Intellectual property, as any kind
of property, establishes powers against persons by conferring exclusive rights over
things. These things may be part of the material world,71 such as land or chattels in
case of traditional property law, or they may be concepts created by law, as is the
situation of intellectual property. When the law turns a certain intellectual creation
of the human mind into a property right (be it a patent, a trademark, a copyright, a
design right, etc.—these divisions are more the product of historical development
rather than conceptually determined; see Sherman and Bently, 1999, pp. 95–8,
p. 101, pp. 217–8), it applies a conceptual device that enables the law to incorporate
the creation into its specific abstract-normative framework. This theoretically
applies to physical and conceptual property alike. Thus, a chattel ‘‘exists’’ for the
law if it attaches property rights to it and therefore makes it an instance of a
normative category. The same applies to an intellectual property right: the otherwise elusive creation of the human mind becomes extant and concrete for the law
because it has been transformed into a property right with a normatively defined
extent and content. The difference between property rights over things of the
material world and intellectual property rights is that the extent of the rights over
the material property is delineated by the physical characteristics of the object of the
property right, while with intellectual property rights this cannot be the case,
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because the intellectual property is an abstract legal concept that may be represented by, but does not attach to, an object in the physical world. Therefore, a
landowner’s property right in relation to the land ends on its borders, while a
copyright owner’s right, represented by, but not attaching to, say, the printed copy
of a novel,72 can extend worldwide and even beyond if the law permits/orders this,
because an abstract concept has no limits dictated by physical characteristics. As far
as the essentials of copyright are concerned, the Berne Convention and TRIPS
indeed ensure that the copyright owner can claim worldwide protection. The powers
of the intellectual property right are granted to the owner (patent proprietor,
author,73 etc.), who in this way obtains the usual ownership rights over the property
(‘‘ius utendi, fruendi, abutendi’’), including the right to assign or license it. Furthermore, from a sociological perceptive, the ownership right effectively confers powers
over people (Cohen, 1927–8, p. 12; Story, 2002, p. 127), because the property right
can be enforced against them. This aspect is more dominant with intellectual
property, but applies to any kind of property: in the case of land or chattels, the
exercise of ownership is not restricted to a ‘‘trespass action’’, but also encompasses
the use of the physical object that is of equal importance, while the exploitation of a
patent or a copyright consists primarily in the enforcement against others74
(Rahmatian, 2006, p. 182, pp. 187–8). The capability of free alienation of intellectual property rights has led to a concentration of rights with a small number of large
commercial entities that obtain enough bargaining power to shape markets and the
socio-economic situation of whole communities, especially through the way in
which they operate their rights enforcement, licensing and franchizing policies. The
lobby groups of these intellectual property industries also have great influence on
the law and policy making of their governments.
These conceptual elements contain all the necessary ingredients for a neocolonial system through economic measures. In the long run, the relevant intellectual property rights in this respect are, arguably to a lesser extent, patents, even
biotechnology and pharmaceutical patents, but rather copyright and trademarks;
first, because these rights have a much longer term of protection (trademarks, if
renewed, can even last forever)75, and second, because they attach to, and confer, a
property right in relation to more elusive and far-reaching concepts than patents76
and therefore give diffuse but extensive power over persons and regions. Their effect
is not too dissimilar to the old privilege system under which regal patents (‘‘letters
patent’’) were granted as a tool of protectionism for all kinds of trades, products
and types of manufacturing before the advent of a modern patent system in the
nineteenth century as we understand it today.77 As in colonial times (Fieldhouse,
1983, p. 71), a Western trademark-owning corporation can have its goods manufactured in the Far East, at much reduced labour costs and with little concern about
the various insurance, health and safety regulations that it would have to comply
with, at a significantly greater expense, in its home country.78 If it is a multinational
enterprise, it may, at least together with other companies, have sufficient impact on
the way in which possible protection regulations are to be policed in the relevant
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region, and it will also exercise substantial influence through its lobby groups on the
government agencies and legislation of its own country to protect its interests.
The history of the making of TRIPS as outlined above is one instructive
example of this. Thus, the company can assert its power through affixing its
trademark on the goods produced in a certain region and under circumstances
substantially brought about by the company. The trademark, which—as a result of
TRIPS in particular—can enjoy world-wide protection, denotes the goodwill of the
company, but it also symbolizes the means and conditions of production for people
in a region. The origin, communication and quality functions (Cornish and
Llewelyn, 2007, pp. 620–1; Maniatis, 1997, p. 68, p. 113; Schechter, 1926–7,
p. 814, p. 817, p. 821, p. 831) that the trademark has ensure that this symbol of
the means and conditions of production will be referred back to the company,
because it is this state of affairs from which the claimed quality of the product (or
service) originates and on which basis the company builds its identity and communicates it to the public.79 This complex of incidents and conditions forms part of a
company’s goodwill, which includes the economic situation of a certain region and
the working conditions of the company’s labour force,80 besides the usual elements
of goodwill, such as quality of goods, reputation, preference of customers for this
undertaking and its products over others.
The trademark, which denotes the goodwill in its complex meaning, also has, in
this way, a proprietary function: it is property for power rather than use;81 it
symbolizes the assertion of ownership or dominum over the employees’ labour force,
the working conditions, the standard of living, the future acquisition and distribution of goods (Cohen, 1927–8, p. 13),82 the local market and the circumstances of
the exploitation of raw material, education and the whole social network that an
economy entails.83 Strictly speaking, this dominium is the power of ownership
conferred by private law, not imperium or sovereignty, the power of the state under
public law and the trademark is trademark, not coat of arms or state emblem. But it
is obvious that this sharp classical Roman law distinction between private law and
public law84 is blurred: in practice, because power over things is also power against/
over other persons, and even conceptually, because common to both is the idea of
(in theory) unlimited power over a (notional) realm, and therefore property can be
seen as a type of sovereign power (Cohen, 1927–8, p. 8, pp. 12–3; see also Tawney,
1921, p. 92), which originates in private law. Historically, in the era of imperialism
from the late 1870s, it was often trading enterprises that exercised private rights in a
given territory that prepared the ground for the states to establish colonies and thus
assert sovereignty: this sovereignty provided an administration and protection, also
military protection, for businessmen.85 The close connection between emblems of
dominum and emblems of imperium can be seen in the provisions of trademark laws
that prohibit the registration of state emblems as trademarks.86 As this sovereign
power under private law symbolized by the trademark—perhaps a less noted
element within the definition of goodwill—is not in the realm of public law and
constitutional law in particular, it gives multinational enterprises the comfortable
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position to enjoy the power of king makers in the process of law making and legal
policy without the responsibility and the accountability87 that a holder of a public
office would have before, ultimately, a parliament. Unlike in the age of imperialism,
multinational enterprises today no longer need the express assertion of sovereignty
by a state in a certain region as a backing. This does not rule out military
interventions for commercial ends, sometimes rephrased as human rights concerns,
and these evidently continue to happen.88
What has been said in respect of trademarks also applies, mutatis mutandis, to
copyright. In addition, particularly the entertainment and software industries,
strengthened further by a series of mergers from the late 1970s on,89 are characterized by a complicated distribution network based on copyright licences. This
distribution system guarantees a dependence of users90 on these industries and a
steady income to them, and encourages a significant homogenization of cultural
products (in particular, music and film; see Macmillan, 2002, pp. 485–6), because
only the tried and tested, not the unusual and creative, is generally considered as
being able to yield safe returns, contrary to the official rhetoric (Rahmatian, 2005b,
pp. 276–7). The universal practice of licensing, partial licensing and sublicensing
against payment of a fee/royalty shares some functional features with the historical
clientele system of ancient Rome (Osterhammel, 1997, pp. 64–5) or the feudal
system (Ganshof, 1964, pp. 70–9, pp. 106–17), especially as to the grant of use of
land for payment of a rent charge or a tithe.91 The IT industries, Western and nonWestern alike, generally have to pay copyright and patent licence fees, usually to US
companies as a kind of corporate ‘‘rentiers’’ (who may, however, now be owned by
Korean or Japanese business conglomerates) when they want to develop their
products and enter the world trading system (Drahos and Braithwaite, 2002,
p. 104). Feudal homage that historically established the personal element between
lord and vassal92 is no longer necessary to make the new system of dependence
work, but to what extent the current situation may develop into a form of patronage
with elements of state-like sovereignty remains to be seen; regionally large companies, whether reliant on their intellectual property rights or not, have often assumed
such a function. It would be historically incorrect to claim that the present
condition originates in the feudal system—even leasehold property (with the right
to grant subleases, etc.) as perhaps the closest parallel to the feudal tenement on the
one hand (Ganshof, 1964, p. 9, p. 106) and the intellectual property licensing system
on the other was technically allodial,93 not feudal, property (as regards English law,
see Harpum 2000, p. 14, p. 42)—but certain political, sociological and psychological
similarities94 cannot be ignored (Drahos and Braithwaite, 2002, pp. 198–9). In
particular, the creation of effectively real rights over things and persons through the
feudal bond (compare Ganshof, 1964, p. 73) has a certain resemblance to the
modern situation in its sociological consequences. It is possible that some of the old
eighteenth-century arguments against feudalism may become relevant again in a
discussion on modern international intellectual property law (Rahmatian, 2006, p.
200). These arguments were actually raised by representatives of early capitalism
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against feudalism, but it seems that international intellectual property protection
today assists capitalism in emulating certain elements of feudalism.
The Protection of Traditional Cultural Expressions
Another potentially neo-colonial device is the attempt at turning back the clock and
seeking the protection of a cultural past of indigenous communities against future
economic and cultural developments. This is really the essence of the idea of a
‘‘protection of traditional cultural expressions’’, in most cases by no means an illspirited concept, but misguided (Rahmatian, 2005b, pp. 290–3; Rahmatian, 2007, p.
202, p. 207, p. 223, with more extensive discussion). It is a modern version of the
construction of otherness, as it is known from colonial times (Osterhammel, 1997,
p. 109), although currently not directed at defining the ‘‘other’’ also as inferior. But
once this intellectual segregation and stereotyping of a traditional ‘‘character’’ and
culture has been made, it is difficult to see why that next step should not follow suit.
Furthermore, this ‘‘protection’’ of ‘‘tradition’’ against exploitation serves Western
economic interests far more than one would assume. International conventions
providing the legal framework for such an ideology exist already. A prominent
international measure in this respect is the recent UNESCO Convention on the
Protection and Promotion of the Diversity of Cultural Expressions.95 Problems of
this protective approach towards tradition can be gleaned even from this instrument,96 but most of them cannot. What is meant by the term ‘‘traditional cultural
expressions’’ in the following section is not the complex of the protection of
traditional knowledge as a whole, but only a certain element of it that Westerners
would relate to copyright protection: one could broadly describe this element as
traditional art in a wide sense, especially visual art, music, dance, any kind of oral or
written literature, any combination of all these, and all these being created
individually or collectively, whether in a communal, spiritual or other cultural
context. This definition admittedly originates from Western thinking, but so does
any protection scheme.
The Making of a Tradition for the Purpose of Protection and Control
The conventional argument is that traditional cultural expressions form the basis of
an indigenous community’s cultural identity. Their protection contributes to the
maintenance of collective identity and is a consequence of the general right to selfdetermination. Traditional cultural expressions or expressions of ‘‘folklore’’ (these
terms seem largely interchangeable) are increasingly in danger of being commercially exploited by Western businesses on a global scale. Adequate protection could
prevent that, and, at the same time, provide a reward for contributing to the stock
of knowledge of the world and improve the livelihoods of indigenous communities
(Dutfield, 2002, p. 73; Gibson, 2005, pp. 1–12; Lucas-Schloetter, 2004, pp. 259–62).
The problem with this approach is, high-minded as it may often be, that in the
context of artistic expressions any legally enforceable protection effectively creates
the artistic ‘‘tradition’’ it purports to safeguard.97 What is modern art today will
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form part of a new tradition in the future. Any modern development—and that
applies by no means to Western cultures only—is an engagement with, and also
subversion of, traditional values: artistic, cultural and political ones alike. Any
process within the arts contains a conflict between ‘‘traditionalists’’ and ‘‘reformers’’, and this satisfyingly uncontrollable flow of discourse would be brought to an
end by an effective legal protection of some kind of ‘‘tradition’’. Legal remedies98
would give ‘‘traditionalists’’ a power against violators of what they perceive as the
tradition—or what they regard as worth preserving—but these deviants would
typically be ‘‘indigenous’’ modern artists. In this manner, any artistic and critical
engagement with the past (usually a colonial past), which may not only be directed
at (former colonial) Western powers but may also lead to criticism of previous and
present indigenous rulers and the role they play in the colonial and neo-colonial
developments, could conveniently be banned.99 Such a protection of tradition is an
expedient tool of factual censorship and also promotes cultural parochialism
against cultural borrowing, interaction and hybridization. But it is the latter that
constitutes all arts, at all times and everywhere (Rahmatian, 2005b, p. 292;
Rahmatian, 2007, pp. 199–200, pp. 205–8, with further references).
A protection mechanism100 for traditional cultural expressions also permits
stereotyping and commodification of non-Western arts with an ‘‘ethnic’’ and ethical
look. The idea of the object of protection, a readily available and picturesque
immutable ‘‘tradition’’, perhaps with no historical past, is a classical Western
stereotype. Especially, the African continent suffered for a long time under the
idea that Africans had no real history, were merely repeating the past, without
innovating, and the lack of recognition of the oral traditions of African civilizations
as sources of history reinforced this view (Boubou Hama, 1990, p. 20). This Western
approach to non-Western history, as was common until after the Second World
War, seems to repeat in the context of protection movements for traditional culture.
But there is also development in the ‘‘traditional’’ arts. In a globalized world,
Western and non-Western artists invariably influence each other. Non-Western
modern artists play with collages of Western and non-Western cultural elements
and challenge both. They do not fit into the erected categories of ethnic authenticity
and modernism, and in particular, they are no longer preoccupied with ‘‘finding
their indigenous voice’’ (Njami, 2005, p. 16, p. 21). This ‘‘ethnic’’ label is an
oversimplifying device that Westerners often apply to the arts of other cultures that
they do not understand and with which they want to engage only to the extent to
which it satisfies their aesthetic, ethical or commercial interests. Such a concept of
‘‘ethnicity’’ belittles representatives of non-Western cultures as attractive creatures,
like the pretty black boy servant kept in households of the colonial era. Creative
movements are frozen into an artificial static tradition through their protection, and
artefacts that apparently embody this tradition are regarded as ‘‘authentic’’ and
‘‘must be salvaged’’ (by Westerners), which curiously often means that they are
taken out of their cultural context and become a dead object in a museum or a
gallery. In this manner, such products of tradition, and effectively their makers, are
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turned into administrable and commercially exploitable commodities. In reality,
cultural difference has already become subject to global commodification (Huggan,
2001, p. 155, p. 158). Thus, the protection of traditional cultural expressions can
present itself as making amends for the injustice of the colonial past by unearthing
the ‘‘tradition’’ before colonial influence (forgetting that this ‘‘tradition’’ has been
irretrievably altered and often destroyed by that colonial force), while at the same
time delivering a commodifying device of exclusive rights, a concept that is not too
distant from intellectual property rights, licences and royalties (Rahmatian, 2005b,
pp. 292–3; Rahmatian, 2007, pp. 206–7). As in the colonial era (compare Osterhammel, 1997, p. 109), the Western world sees a duty to fulfil the ethical mission to
guard and protect the traditional arts of indigenous cultures because they are
apparently unable to do that themselves or are unwilling to be forced into a certain
pattern of development (or into no development at all) for effectively satisfying the
demands of a Western intellectual fashion.
The Consequences of a Protected Tradition for the Perceived ‘‘Indigenous
Community’’
The paternalistic aspect of the protection of traditional cultural expressions shares
many features with the British indirect rule in colonial times (on the indirect rule,
see Fieldhouse, 1983, pp. 29–35; Morris and Read, 1972, p. 3). Similar to the
colonial era, the justification of this measure is based on the construction of
otherness, which, although no longer regarded as being inferior, should be
preserved or isolated and administered,101 and the advocates for implementation
believe in the ethical rightness of their mission to guard and protect indigenous
cultures (Osterhammel, 1997, p. 109). The protection of the tradition would
presumably be administered by leaders of indigenous communities (or other entities
of authority) for a central government, which is a European/Western one in nature.
These ethnic communities often live in reservates. The indigenous rulers would be
given a power that they did not originally have and that they would be able to use
against the actual interests of individual members of the community (Rahmatian,
2007, p. 224). In this way, a concept of cultural difference would be imposed or
entrenched (compare Loomba, 2005, p. 93, p. 97, p. 99), and although it may have
been well meaning, it would be a good fertile ground for negative stereotypes.
Once a tradition is constructed through its protection and can become a legally
recognized concept and enforceable right, it is then necessary to establish who this
right is to be conferred to. The question of right allocation is reminiscent of
intellectual property rights or property rights in general, no matter how much effort
may go into the creation of a system of non- or anti-proprietarian rights (Drahos,
1996, pp. 210–9; Gibson, 2005, p. 161) and irrespective of the actual name chosen;
they are in effect exclusive rights and therefore have proprietary features, including
potentially the right to alienation, with all the shades of meaning associated with
this term (Rahmatian, 2005b, p. 293).102 The consequences of such a measure may,
again, be described as the establishment of quasi-sovereignty on the basis of
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extensive quasi-property rights.103 The beneficiary of such exclusive rights is
supposed to be the ‘‘indigenous’’ or the ‘‘traditional community’’, although, as
already indicated, an individual member may actually suffer under this imperium of
exclusive rights that the community as a whole enjoys. But who determines whether
someone is or is not a member of an indigenous community and therefore ‘‘entitled’’
to create traditional art, and (this is the drawback) also bound by the limits of the
protected tradition? This is/is-not test of beneficiaries would inevitably be determined by segregationist and racist legislation, if the protection measure is to work at
all. A prominent example was the apartheid rule in South Africa, which sought to
preserve a separate development of each racial group and its own culture and
language. This rule did not start with the measures of the South African National
Party government after 1948, but was already at the centre of the seemingly
‘‘benign’’ segregation policy as it was administered by the Native Affairs Department in the 1920s and 1930s (Dubow, 1989, p. 112, p. 114, p. 117). The parallels
between this pre-1948 policy and the consequences of an effective protection regime
of traditional cultural expressions are obvious.104 At least this pedigree should make
one refuse endorsement of this protection measure.
Conclusions
TRIPS and the long-established intellectual property conventions that it incorporates serve as an essential device in the building and strengthening of an informal
empire of economic colonialism by the industrialized nations in the non-Western
world. These international instruments introduced or reinforced Western-style
intellectual property rights in non-Western countries according to minimum
standards that predominantly advance the interests of the intellectual propertyproducing and -owning industrialized nations. One justification for this development has been the promotion of global technology transfer, an argument that
overlooks the economic and social imbalances between industrialized and developing countries. Actual technology transfer is thus far less effective than perhaps
envisaged. In fact, the principal concern in the drive for global intellectual property
protection of a Western nature and Western level is the successful enforcement in
developing countries of intellectual property rights that originate in the West or are
owned by enterprises of industrialized nations. The intellectual property-owning
enterprises are often large multi-national corporations that are able to wield
impressive power by asserting worldwide their intellectual property rights that are
backed by international conventions. These conventions are, in turn, the legal basis
for political and economic pressure on formally independent and sovereign states.
In this way, an informal system of socio-economic dependence with similarities to
the colonial era is established. Formal imperialism has come to an end with
decolonization, but informal economic colonialism continues to exist and increases
in its importance, and intellectual property rights play a far more significant role in
this process than in the past. Informal colonialism does not seek formal political
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control in the dependent states, most commonly developing countries. This
phenomenon can therefore be termed as neo-colonialism as opposed to the
historical situation in the formal colonial (and later imperial) epoch, when, unlike
today, national pride, international political power and prestige were at least as
important as commercial success. Modern informal neo-colonialism establishes a
network of economic, social and consequently political dependence that is increasingly based on licensing and enforcement of intellectual property rights. Western
countries, especially the United States, now constantly press for higher levels of
intellectual property protection beyond the standards of TRIPS in bilateral agreements and thus consolidate the framework of dependence. Connected with the
present tendency towards the expansion of exclusive rights is another, less apparent,
neo-colonial legislative project: the protection of ‘‘traditional cultural expressions’’,
insofar as this term is understood in the limited sense of what Western lawyers
would loosely associate with traditional art and the scope of copyright protection.
Again, this idea reflects colonial features. The protection of the ‘‘tradition’’
(essentially a Western construct) in fact creates this tradition and serves Western
interests, and is to be administered by organs of the indigenous community in a kind
of indirect rule. Modern non-Western art and its potentially critical force can in this
way be defused, and the worldwide commodification of ‘‘ethnic’’ and ‘‘traditional/
authentic’’ artefacts can be pursued even better, although with a moral label. The
requirement of ascertaining the members of the indigenous community, the
intended beneficiaries of this protection, invites racialist and segregationist legislation if this measure wants to be effective at all.
About the Author
Andreas Rahmatian is a Lecturer in Law at the University of Leicester. His two first
degrees are in law and in musicology and history (University of Vienna). He also
holds an LL.M. from the University of London and a Ph.D. in private law from the
University of Vienna. He worked as an Associate Attorney at Law in Vienna and
subsequently trained as a solicitor in London. After qualification as a solicitor, he
became a full-time academic. His research interests and main publications are in
intellectual property law, property and trust law, property theory and in comparative law, with particular reference to private law and its legal and intellectual
history; e-mail: [email protected]
Notes
1 On neo-colonialism in Africa, see, for example, Shaw (1982, p. 239).
2 Overview of non-Marxist socio-economic theories of imperialism in Mommsen (1982,
pp. 81–6).
3 Hence, the more neutral term ‘‘post-colonialism’’, which avoids sharper political terms
such as imperialism or colonialism, is not used; compare Shohat (1992, p. 99).
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4 These legal instruments, typically treaties of international economic law, serve as tools
of a legal imperialism; compare Fitzpatrick (2001, pp. 212–5).
5 Indeed, many colonies were commercially unsuccessful and had to be subsidized by the
central power, or economic reform was provoked to justify the costs of empire; see
Fieldhouse (1983, pp. 103–5). On the Belgian Congo, see Albertini (1976, p. 295); on the
German colonies, see Speitkamp (2005, p. 19, p. 24, pp. 87–90).
6 Especially the WIPO Copyright Treaty 1996 (in force since 6 May 2002) and the WIPO
Performances and Phonograms Treaty 1996 (in force since 20 May 2002). On WIPO’s
role in the preparation of a ‘‘TRIPS-plus’’ path, see Drahos (2002a, pp. 774–8).
7 Exemplified recently by the UNESCO Convention on the Protection and Promotion of
the Diversity of Cultural Expressions, CLT-2005/Convention Diversité-Cult. Rev., 20
October 2005.
8 Agreement on Measures to Discourage the Importation of Counterfeit Goods, GATT Doc.
No. L/5382, 18 October 1982.
9 It is worth noting that Western lobbyists were very concerned to establish that GATT is
competent on intellectual property matters, and not UNCTAD, which could, in
principle, also have been equally competent, because the power distribution was
considered more favourable to Western interests in GATT. See also Zamora (1995,
p. 529) and Abbott (1989, p. 713).
10 This way of thinking appears, for example, from Farkas (1996, p. 463).
11 For example, the developing countries tried to create new rules on a New International
Economic Order in the 1970s; see, for example, UNCTAD-ICTSD (2005, p. 3). On the
moral value of reciprocity, see Kuruk (2004, p. 430).
12 Compare rules on patents: article 27 et seq.; trademarks: article 15 et seq.; copyright:
article 9 et seq.
13 For example article 2, article 9, article 15(2) and 16(2) and (3) of TRIPS.
14 These conventions, together with their exceptions to the national treatment rule, are
directly referred to in article 3(1) of TRIPS. See also Paris Convention, article 2, Berne
Convention, article 3.
15 In fact, the benefits of an intellectual property regime for a developing country are often
doubtful; see Abbott (1989, pp. 698–9).
16 This is indeed usually the case, but not always, for example with regard to India and East
Asia, especially China; see section Safeguard of Enforcement of Intellectual Property
Rights Originating from the West: The Example of China.
17 On the concept of the savage as opposed to the civilized colonist in colonial times and its
legal reflections, see Fitzpatrick (2001, pp. 175–9).
18 Compare for the United States, Farkas (1996, p. 464, p. 487).
19 Often, the adoption of Western style (especially US style) intellectual property laws was
prepared by enactments of intellectual property rights modelled on US law in turn for
trade advantages with the United States; see Drahos with Braithwaite (2002, pp. 82–4,
p. 87).
20 The Madrid Agreement was last amended in 1979.
21 Article 9quinquies of the Madrid Protocol.
22 UK: implementation in Trade Marks Act 1994 (accession 1 December 1995); US:
accession 2 November 2003.
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23 Berne Convention Implementation Act 1988, Pub. L. No. 100–658, 1988 (17 USC,
section 116A).
24 Foreign authors did obtain copyright protection in the United States with the Chace Act
1891 on condition of reciprocity. However, at the same time, the ‘‘manufacturing
clause’’ was enacted; see Hatch (1989, p. 174).
25 The manufacturing clause required that copyright protection for literary material
printed in the English language depended on the manufacturing of the work in the
United States or Canada (old 17 USC, section 601 [1982]). It expired in 1986.
26 Universal Copyright Convention (signed at Geneva on 6 September 1952, revised at
Paris on 24 July 1971).
27 Article 9(1) of TRIPS.
28 The United States ratified the UCC in 1954.
29 Exclusive right of the copyright owner to prepare derivative works, 17 USC, section
106(2).
30 Section 43(a): prohibition of false designation of the origin of literary or artistic works.
31 CDPA 1988, chapter IV, subsection 77 et seq., see also Dworkin and Taylor (1989,
pp. 93–4).
32 Copyright Amendment (Moral Rights) Act 2000 (no. 159, 2000), amending Australian
Copyright Act 1968, subsection 189 et seq.
33 Article 9(1) of TRIPS.
34 USC, section 2242 (1990).
35 Compare Farkas (1996, p. 474, p. 505) and Robbani (2005, p. 565).
36 China was a founding member of GATT in 1947, but the Communist regime that
subsequently came into force decided to withdraw from the GATT in 1950.
37 WTO Ministerial Conference Decision on 10 November 2001, annexure 1A, VI(a) and
(b), WT/L/432, 23 November 2001; WTO Press Release (Press/243, 17 September 2001).
38 Major amendment on 22 February 1993 (1993 Trade Mark Law) and on 27 October
2001 (2001 Amendment, to conform with TRIPS); see Yang and Feng (2003, p. 251,
p. 253).
39 Since then, China has passed several new regulations that have revised its intellectual
property rights substantially. This will not be discussed further.
40 Schlesinger (1995, pp. 120–35) with examples of trademark, patent and copyright cases
from the late 1980s and early 1990s.
41 China joined the Berne Convention on 15 October 1992.
42 By comparison, many African countries are considered as commercially insignificant to
Western market interests and often only perceived as typical recipients of foreign aid
donations. However, recently especially China considers them as trading partners and
pursues its business interests vigorously, which increasingly eclipses the Western
influence (often originating from the old colonial ties) in Africa.
43 See immediately below.
44 At an academic level, this has been put forward especially by William Alford (Alford,
1995). Similarly, Bender (2006, p. 234).
45 Recent piracy figures, for example, in Bender (2006, p. 232).
46 Compare an Islamic view on copyright, Amanullah (2006, pp. 306–7; on plagiarism, p. 310).
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47 Article III (3) and annexure 2 of the WTO Agreement.
48 WTO document: China—Measures Affecting the Protection and Enforcement of
Intellectual Property Rights—Request for Consultations by the United States, WT/
DS362/1 10 April 2007, [online]. Available at hhttp://www.wto.org/english/tratop_e/
dispu_e/cases_e/ds362_e.htmi [Accessed June 2007].
49 WTO document: China—Measures affecting trading rights and distribution services for
certain publications and audiovisual entertainment products: request for consultations by
the United States, WT/DS363/1, G/L/820, S/L/287 16 April 2007, [online]. Available at
hhttp://www.wto.org/english/tratop_e/dispu_e/cases_e/ds363_e.htmi [Accessed June
2007].
50 Compare Preamble with the WTO Agreement, paragraph 3.
51 Protocol on the Accession of the People’s Republic of China, WT/L/432, 23 November
2001.
52 The Korean industries start doing that; see Drahos with Braithwaite (2002, p. 104).
53 Doubts about this view in Blakeney (1989, p. 87).
54 The compulsory licensing provisions for developing countries do not appear in TRIPS
itself, but in the Berne Convention, appendix, article I et seq., being a part of TRIPS
through article 9(1). See also UNCTAD-ICTSD (2005, p. 190) and Correa (2000, p. 155).
55 See, for example, for Thailand in a ‘‘TRIPS-plus’’ form, Kuanpoth (2006, p. 588). See
also section, Exercise of Quasi-Sovereign Power Abroad through Intellectual Property
Rights.
56 Compare the already wide-ranging confusion and dilution provisions in the US
Trademarks Act 1946 (Lanham Act, section 43(a), (c)) 15 USC, section 1125(a), (c).
On the present idea of dilution as whittling away an established trademark’s selling
power and value through its unauthorized use by others upon dissimilar products, see
Schechter (1926–7, p. 832).
57 This goes hand in hand with the fact that developing countries are importers of
intellectual property rights; see Drahos (2002b, p. 163).
58 Compare also the Preambles to the WTO Agreement and TRIPS.
59 On the rather negative impact of compulsory licensing under TRIPS on the access to
drugs, see for India, Sampath (2006, p. 694, p. 719).
60 This is of particular concern with regard to the need for affordable drugs against AIDS;
see Drahos with Braithwaite (2002, p. 142).
61 Berne Convention, appendix, articles I and II.
62 A study comparing the prices of the 30 most prescribed patented drugs in South Africa
with prices in the European Union showed that the prices in South Africa were, on
average, 98% higher than the best price in the European Union (Pretorius, 2002, p. 189).
63 Whether the adopted exhaustion rule is international, regional or national exhaustion is
to be determined by each member. This is now confirmed by paragraph 5(d) of the 2001
Doha Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/W/
2 of 14 November 2001; see also UNCTAD–ICTSD (2005, p. 106).
64 US law in principle allows parallel importation if it is not in conflict with contractual
restrictions; see Correa (2002, p. 45).
65 EU law also allows parallel importation (regional exhaustion principle); see Slotboom
(2003, p. 423).
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66 More information, together with a timetable of events in Pretorius (2002, p. 192).
67 14 November 2001, WT/MIN(01)/DEC/W/2. See also UNCTAD–ICTSD (2005,
p. 130).
68 On the compulsory licensing solutions in paragraph 6, the Doha Declaration and the
Decision on the Implementation of paragraph 6 in 2003 (WT/L/540), see UNCTADICTSD (2005, p. 484).
69 As it happens quite frequently in the US film and music industries; see, for example,
Drahos with Braithwaite (2002, p. 177). The problem is even greater in the case of
(unprotected) traditional cultural expressions or ‘‘folklore’’; see one of the numerous
examples (here indigenous music) in Story (2002, p. 138).
70 On the following discussion of the proprietary concept of (intellectual) property, see also
Rahmatian (2003, p. 423, p. 430; 2005a, pp. 373–4, p. 376; 2006, pp. 179–88; 2007,
pp. 218–9).
71 These are especially tangible things, but they can also be electricity, gases and the like,
which are physical, but not ‘‘tangible’’ in the ordinary meaning of the word.
72 The representation of the goodwill of an enterprise by its trademarks is similar.
73 Provided that is before assignment in which case authorship and ownership separate. On
the legal concept of the author as initial grantee or attributee of property rights as
opposed to the non-legal term and presumably exaggerated idea of the ‘‘romantic’’
author, see Rahmatian (2007, p. 214).
74 ‘‘Negative rights’’; see Cornish and Llewelyn (2007, p. 6). However, intellectual property
rights should not be viewed merely as negative rights of enforcement (infringement).
They are also rights of use (e.g. licence, assignment).
75 Compare article 18 of TRIPS.
76 Patented products are usually combined with a branding strategy; the trademark
element will survive the expired patent.
77 Brief overview of the history of patents in English law in Sherman and Bently (1999,
pp. 101–2); Drahos with Braithwaite (2002, pp. 34–5).
78 This company, of course, does not have to be ‘‘Western’’ in the traditional sense; it can
be Japanese, Korean and, increasingly often, Chinese or Indian, and in the latter cases it
is quite common that profit-inhibiting regulations may not come into existence at their
place of business in the first place.
79 Schechter points out that the trademark does not only symbolize goodwill but is often
the most effective agent for the creation of goodwill; see Schechter (1926–27, p. 819).
Thus, the fact that the trademark is only a symbol does not mean that the power it
denotes (which is a component of the ‘‘goodwill’’) is exercised independently of the
trademark. All property rights and the powers arising from them are symbolized in some
way, with legal consequences, for instance by way of possession, use, obtaining income;
the actual power is exercised through the interaction of human beings in the light of
these property rights.
80 For example, when companies agree to a fair trade arrangement or a code respecting
ethical obligations towards workers, they usually advertise this and thereby make it an
element of their goodwill. Unacceptable working conditions would therefore also have
to be regarded as part of (negative) goodwill; see on the human rights implications in the
context of trademark law, Rahmatian (2008, pp. 354–5).
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81 On this distinction between property for power and property for use, see Tawney (1921,
p. 66); Cohen (1927–8, p. 22, n. 10) with reference to the Austrian socialist jurist and law
professor Anton Menger (1841–906); Hobhouse (1915, pp. 9–10).
82 The regulatory aspect of intellectual property rights for the future acquisition and
distribution of goods (services) applies to all types of intellectual property rights and
means in the context of copyright, for instance, access to copyright-protected material
and the costs that are involved. See, for example, Story (2002, p. 141, n. 9).
83 Compare also Tawney (1921, p. 163). On the social interconnections of property, see
Renner (1949, pp. 266–73).
84 Compare Grotius (1964, p. 207) (book II, chapter 3, section 4).
85 Albertini (1976, p. 15, on British East-India Company, pp. 294–5 on Belgian Congo);
Mommsen (1982, p. 105, referring to Fieldhouse); Hobsbawm (1994, pp. 66–7).
86 Compare article 6ter of the Paris Convention.
87 Under company law, a board of directors would only be accountable to the shareholders
with voting rights in a general meeting (and, in some jurisdictions, also to a separate
supervisory board), which is in fact a rather inefficient measure, even for shareholders,
let alone outsiders on whom corporate decisions have a direct or an indirect impact.
Compare also Tawney (1921, p. 92).
88 According to a report by the Financial Times (Cathy Newman, ‘‘Oil groups eye stake in
wake of conflict’’, Financial Times, 12 March 2003), the two oil companies BP and Shell
talked with UK government officials at the onset of the Iraq invasion about the
commercial benefits from developing Iraq’s oilfields once Saddam Hussein was toppled,
so that the United Kingdom would not lose out to the US industry.
89 On the concentration in media ownership in the United States, see, for example, Bettig
(1996, p. 36).
90 This obviously also applies to patent and trademark licences and franchising.
91 Compare Tawney (1921, p. 79), who refers to ‘‘royalties’’ in this context as ground rents
and returns from mineral mines, but the principal concept is the same.
92 Homage (and the oath of fealty) established the personal element in the classical feudal
relationship, besides the proprietary element of fief or beneficium; see Ganshof (1964,
p. 69, p. 72, p. 75, p. 106).
93 Thus, it was in outright ownership, not within the feudal system of land-holding.
94 The economic similarities between feudalism and modern capitalism are perhaps the
fewest.
95 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural
Expressions, CLT-2005/Convention Diversité-Cult. Rev., 20 October 2005. It came into
force (according to article 29) on 18 March 2007.
96 The UNESCO Convention appears to be mainly a declaration of desired future policy,
but from its articles 6–8, which deal (in general terms) with suggested measures of
protection and promotion of cultural expressions, one can get an idea of the way in
which such measures could work (or not).
97 See, for example, the interesting discussion of the making of the academic discipline of
‘‘African Music’’ and its partly European and American scholarly origin in Kidula
(2006). However, this partly artificial construct fortunately does not benefit from any
kind of legal enforcement.
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98 The UNESCO Convention on the Protection and Promotion of the Diversity of
Cultural Expressions does not seem to require its parties to give individual legal
remedies at the national level.
99 The UNESCO Convention on the Protection and Promotion of the Diversity of
Cultural Expressions ‘‘guarantees’’ in article 2 the ‘‘human rights and fundamental
freedoms, such as freedom of expression, information and communication, as well as the
ability of individuals to choose cultural expressions’’, but to what extent this can be
enforceable depends on the national constitutional laws in particular. The sovereign
right of the signatories ‘‘to formulate and implement their cultural policies’’ has been
reaffirmed in article 5.
100 As to the possible measures to achieve this protection, see the UNESCO Convention on
the Protection and Promotion of the Diversity of Cultural Expressions, articles 6–8.
101 Compare for the colonialist ideology, Osterhammel (1997, p. 108).
102 The second meaning of alienation as ‘‘estrangement’’ is already detectable in Rousseau’s
Social Contract (book I, chapter 4), but especially in Marxian theory of society
‘‘alienation’’ denotes at least four different concepts besides ‘‘transfer’’; see Gordon
(1993, pp, 330–4): estrangement, powerlessness, ethical normlessness, divorcement and,
as a consequence, dissociation.
103 Such rights would, however, probably be more public than private rights, which moves
them closer to the concept of sovereignty under public law or imperium.
104 Rahmatian (2007, pp. 226–7) with more extensive discussion and further references. An
earlier extreme case, which has nevertheless some relevance in the present discussion, was
Nazi Germany (p. 225).
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