Dying to Spite the Graveyard:
Thailand and the Necessity of Creating a Culture-Based
IP Enforcement Paradigm
Matthew W. Parker *
I.
II.
III.
IV.
V.
INTRODUCTION ................................................................................... 93
PART I: STATE OF AFFAIRS .................................................................. 96
PART II: THE ASIAN VIEW ................................................................ 100
PART III: WHY THAILAND MATTERS, AND WHAT IT REPRESENTS ..... 102
PART IV: CREATING A CULTURE OF IP ENFORCEMENT ...................... 106
A. Education .................................................................................. 107
B. Community Building ................................................................. 108
C. Reasonable Economics ............................................................. 109
D. Flexible Penalties ......................................................................112
VI. CONCLUSION .....................................................................................113
I.
INTRODUCTION
“ตายไปทั้งๆที่สุสาน” Thai Proverb, “Dying to spite the graveyard”.
Meaning: Cutting off the nose to spite the face.
On its face, Thailand is a country of contradictions; a unique
bedlam of cramped megalopolis and sparse countryside, an industrialized
manufacturing center and an industrializing agrarian nation, all at the same
time. Intellectual property (“IP”) is not spared the dizzying contrasts that
make up the rest of its society and legal system.
It is impossible to quantify the extent of piracy in Thailand.
Thailand has been on the Special 301 Report, put out by the Office of the
United States Trade Representative (“USTR”) and the International
Intellectual Property Alliance, since 1994.1 The Special 301 Reports have
listed eight major “red-zones” in Bangkok where pirated DVDs can be
*
Copyright © 2016 by Matthew W. Parker, Associate Attorney, Brumbaugh &
Quandahl P.C. LLO. J.D. Washburn University School of Law 2013. The views reflected
in this article are exclusively mine and do not reflect those of any person or institution. I
would like to thank the following people for their valuable assistance in the conception,
writing, and editing of this article: Patricia Judd, Andrew Parker, and Pamela Cole. In
addition, this article benefitted greatly from the hard work of the APLPJ team assigned to
it: Emily Gaskin, Alicia Fung, Andy Kiyuna, and Randy Cortez. All errors are my own.
1
International Intellectual Property Alliance, Additional Appendix: Historical
Summary of Selected Countries’ Placement for Copyright-Related Matters on the Special
301
Lists
(2012),
45,
http://www.iipawebsite.com/pdf/2012SPEC301HISTORICALSUMMARY.pdf.
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purchased,2 over 100 BitTorrent sites hosted in Thailand,3 and extensive
book piracy for students (often times with explicit approval from
teachers),4 among the myriad of IP rights infringements that occur in the
country. The Report further notes that Thailand specifically failed to
address concerns in previous reports:5 media-box based piracy,6
government use of unlicensed software,7 and online piracy.8 Finally, the
Report “urges Thailand to do more to address longstanding organizational
challenges to enforcement and to prioritize [intellectual property rights]
enforcement.”9
Despite these findings, Thailand has taken steps, to improve its IP
enforcement. In 2012, Thailand was member of the Association of
Southeast Asian Nations (“ASEAN”) “that has succeeded in establishing a
system of specialized IP courts, joining China, Germany, United Kingdom,
and the United States, which have adopted similar systems.”10 Even with
the ineffectiveness of the punishments associated with the court (an
average fine of US$2,830.00 may be a lot to an individual Thai, but not
the pirate dealers), in 2011 there were 4,499 IP related raids and 457
customs raids.11 The Thai Government is also praised for an amendment to
their Copyright Act that “provides Thai Customs officers with ex officio
authority to suspend and seize illegal goods in transit, as well as copyright
law amendments to address unauthorized camcording.”12 Despite constant
placement by the United States Government on the special 301 report13,
2
INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE, 2012 SPECIAL 301
REPORT ON COPYRIGHT PROTECTION AND ENFORCEMENT: THAILAND 107 (2012),
available at
http://www.iipawebsite.com/rbc/2012/2012SPEC301THAILAND.PDF
(hereinafter IIPA, 2012 SPECIAL 301 REPORT).
3
Id. at 106.
4
Id. at 108-09.
5
OFFICE OF THE U.S. TRADE REPRESENTATIVE, 2015 SPECIAL 301 REPORT 8
(2015) [hereinafter 2015 REPORT].
6
Id. at 13.
7
Id. at 17.
8
Id. at 37-38.
9
Id. at 44.
10
Christian H. Nguyen, A Unitary ASEAN Patent Law in the Aftermath of
TRIPS, 8 PAC. RIM L. & POL'Y J. 453, 479 (1999).
11
OFFICE OF THE U.S. TRADE REPRESENTATIVE, 2012 SPECIAL 301 REPORT 105
(2012) [hereinafter 2012 REPORT].
12
13
2015 REPORT, supra note 5, at 44.
Thailand is one of six countries to have appeared on the Special 301 Report
every year since its inception. OFFICE OF THE U.S. TRADE REPRESENTATIVE, 2014
SPECIAL 301 REPORT 46 (2014) [hereinafter 2014 REPORT] at Foreword; see also OFFICE
OF THE U.S. TRADE REPRESENTATIVE, 2016 SPECIAL 301 REPORT 37 (2016) [hereinafter
2016
Parker
95
Thailand remains a strong trading partner; the 24th strongest trading
partner with the United States, at over $31 billion in trade.14 There has
been an effort to solve some of these issues, and the value of Thailand to
the United States as a trade partner has not been diminished. The Special
301 Report emphasizes that “[t]he United States looks forward to
continuing to work with Thailand to address these . . . and other issues.”15
It is this combination of Eastern and Western philosophies that makes
Thailand a fascinating model and case study for intellectual property
enforcement.
The Thai phrase “dying to spite the graveyard” is the Thai
equivalent of “cutting off your nose to spite your face” or taking an action
to solve a problem that results in more harm than good. In this case, the
current IP enforcement schemes used across the world and promoted by
more developed countries (i.e., heavy-handed negotiations, threats of
sanctions, and working provisions into free trade negotiations) are dying
to spite the graveyard. This approach, without any differentiation for the
circumstances of country or region, may produce grudging acceptance but
breeds resentment that hinders long term trade relations and enforcement.
The solution is to create a new paradigm of IP enforcement, one
that not only allows, but is predicated on, being adjusted for the culture of
each country. Because the only way to ensure IP enforcement as a genuine
long-term priority is to take steps to create a culture of IP respect, the only
steps that should be taken until then are ones designed to build and then
nurture those fundamental values.
This article reviews the history of IP regulations and IP
enforcement in Thailand. It then considers non-traditional enforcement
philosophies applied in other Asian countries and suggests how they could
be applied in Thailand. Finally, this article presents a culture-based
enforcement philosophy based on the lessons learned from Thailand.
Part I provides a brief background on the current state of IP
enforcement. It briefly touches on how enforcement is handled currently
under the Agreement on Trade-Related Aspects of Intellectual Property
Rights (“TRIPS”) before looking briefly at enforcement under the
previously proposed Anti-Counterfeiting Trade Agreement (“ACTA”), not
as a binding treaty, but as a brief overview of where the ‘First World’
countries appear to want enforcement to go.
Part II provides an overview of IP enforcement in Asia, ASEAN
and other Asian countries, in order to give a general view of the culture of
IP enforcement that runs across the region.
2016 REPORT]; 2015 REPORT, supra note 5, at 44.
14
Thailand, OFFICE OF THE U.S. TRADE REPRESENTATIVE, Office of the United
States Trade Representative, Thailand, https://ustr.gov/countries-regions/southeast-asiapacific/thailand.
15
2015 REPORT, supra note 5, at 45.
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Part III, explains why the history and culture of Thailand create an
IP mentality that is both similar to the rest of Asia and unique enough to be
valuable, and why creating the culture of IP respect in Thailand will lead
to beneficial ripples throughout the region. Thailand is the perfect lens to
understand culture-based IP enforcement the world over.
Part IV, entitled ‘Creating a Culture of Enforcement,’ lays out the
most effective method of creating a regimen of enforcement that will work
within Thai cultural and historic norms, through the use of flexible
philosophies of enforcement that can be applied across cultures. Finally,
this section explains how this approach can and should be taken not just in
Thailand, but around the world to promote IP enforcement as a cultural
norm in any country.
II. PART I: STATE OF AFFAIRS
The primary international agreement on IP rights is the Agreement
on Trade-Related Aspects of International Property Rights,16 which makes
up Annex 1C17 to the Marrakesh Agreement Establishing the World Trade
Organization (“WTO”).18 TRIPS Part III consists of 20 Articles on
enforcement. Article I provides: “Members shall ensure that enforcement
procedures . . . are available under their law so as to permit effective
action against any act of infringement of intellectual property rights
covered by this Agreement.”19 The TRIPS enforcement mechanisms are
broad, providing for civil procedures,20 suspension of the release of
infringing goods from customs,21 and laying out guidelines for criminal
procedures (“Members shall provide for criminal procedures and penalties
to be applied at least in cases of wil[l]ful trademark counterfeiting or
copyright piracy on a commercial scale”).22 TRIPS provides a broad
standard of enforcement for WTO members to utilize in settling their
disputes. These standards were part of the foundational goals of the
agreement.23
16
Agreement on Trade-Related Aspects of Intellectual Property Rights,
Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Apr. 15,
1994, 1869 U.N.T.S. 299 [hereinafter TRIPS Agreement].
17
Annexes are “additional legal texts” negotiated after the Marrakesh
Agreement that function to the Agreement as amendments do to the United States
Constitution. See, e.g., WTO Legal Text, WORLD TRADE ORGANIZATION,
https://www.wto.org/english/docs_e/legal_e/legal_e.htm.
18
See Marrakesh Agreement Establishing the World Trade Organization, Apr.
15, 1994, 1867 U.N.T.S. 154.
19
TRIPS Agreement, supra note 16, at arts. 41-61.
20
Id. at arts. 42-49.
21
Id. at art. 51.
22
Id. at art. 61.
23
World
Trade
Organization,
Overview:
the
TRIPS
Agreement,
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The extent to which TRIPS includes enforcement mechanisms has
been debated ever since its implementation.24 The enforcement
mechanism has been called “[o]ne of the great successes of the WTO,”
even though the case burden is significant.25 The dispute resolution
mechanism extends the mandatory dispute settlement process established
under the WTO. The dispute resolution mechanism has also been noted as
a highly praised part of the agreement.26 IP Professor Peter Yu, CoDirector for the Center for Law and Intellectual Property at Texas A&M
University School of Law, called the dispute resolution mechanism a
“crowning achievement,”27 while others offer a more measured
assessment.28 Professor Yu notes that the enforcement standards are so
sweeping that they have ambiguities built in to them29 and that rights
holders may be disappointed by the enforcement.30 By creating flexible
mechanisms, TRIPS may have holes in what might have otherwise been
an iron-clad floor of protections.31
There have always been disagreements over the efficacy and extent
of enforcement mechanisms under TRIPS.32 Professor Yu notes that “less
developed countries have always preferred enforcement standards that are
better tailored to their resource-deficient environments.”33 Furthermore,
TRIPS had a transitional period built into it that the less developed
countries knew were on the horizon, leading to frustration as the timelines
drew near.34 While these timelines were extended35 (particularly for
pharmaceutical patents), it remained a point of contention.
https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm.
24
See William J. Davey, The WTO Dispute Settlement System: The First Ten
Years, 8 J. INT'L ECON. L. 17 (2005).
25
Id. at 32.
26
Ruth Okediji, Toward an International Fair Use Doctrine, 39 COLUM. J.
TRANSNAT'L L. 75, 149 (2000) (“…most celebrated”).
27
Peter K. Yu, TRIPS and its Achilles Heel, 18 J. INTELL. PROP. L. 479, 481.
28
Id. at 482.
29
J.H. Reichman & David Lange, Bargaining Around the Trips Agreement: The
Case for Ongoing Public-Private Initiatives to Facilitate Worldwide Intellectual Property
Transactions, 9 DUKE J. COMP. & INT'L L. 11, 35 (1998).
30
Id. at 38.
31
Id. at 19, footnote 34.
32
Id. at 38.
33
Yu, supra note 27, at 514.
34
Id. at 515.
35
Responding to Least Developed Countries’ Special Needs in Intellectual
Property,
WORLD
TRADE
ORGANIZATION,
https://www.wto.org/english/tratop_e/trips_e/ldc_e.htm (last updated Oct. 16, 2013)
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Developed nations have also grown frustrated with the levels of
protection and lagging enforcement36 even as the developing nations were
challenged by the restrictions.37 In 2008, a number of developed countries
began negotiating the ACTA.38 The ACTA was the subject of intense
worldwide criticism over the extent of its reach,39 and there were a myriad
of calls and petitions to do away with the agreement.40 While the
agreement did not gain the widespread acceptance many developed
countries (or members of the United States Government and industries)
would have wished,41 the agreement did reflect the desires of first world
governments to enact stronger penalties and enforcement for piracy.
The ACTA was designed to be a firmer standard than TRIPS,
reflecting a more iron bound (and some might say heavy handed)42
(“[T]he TRIPS Council extended the period until 1 July 2013, and on 11 June 2013, it
extended this further until 1 July 2021 — or when a particular country ceases to be in the
least developed category if that happens before 2021.”).
36
Especially when speaking of those countries who have been on the report
since the beginning, the Reports can take on a somewhat frustrated tone. See, e.g., 2016
REPORT, supra note 13, at 37 (“The United States welcomes Thailand’s stated desire to
improve IPR protection and enforcement, including recent remarks by the Prime Minister
acknowledging the importance of respecting IPR and the role IPR plays in making the
Thai economy competitive. At the same time, IPR enforcement does not seem to be a top
priority for Thai law enforcement, and there has been limited improvement of poor
coordination among government entities despite the launch of the National IP Center of
Enforcement in 2013.”).
37
Peter K. Yu, TRIPs and its Discontents, 10 MARQ. INTELL. PROP. L. REV. 369,
379 (2006) (“Since the TRIPs Agreement went into effect, less developed countries have
been very dissatisfied with the international intellectual property system.”).
38
Proposal for a Council Decision on the Conclusion of the Anti-Counterfeiting
Trade Agreement between the European Union and its Member States, Australia,
Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of
Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the
United States of America, COM (2011) 380 final (June 24, 2011), available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0380:FIN:EN:HTML
[hereinafter Proposal for Council Decision on ACTA].
39
See Alberto J. Cerda Silva, Enforcing Intellectual Property Rights by
Diminishing Privacy: How the Anti-Counterfeiting Trade Agreement Jeopardizes the
Right to Privacy, 26 AM. U. INT'L L. REV. 601.
40
See, e.g., Say No to Acta, UK GOVERNMENT AND PARLIAMENT: PETITIONS,
https://petition.parliament.uk/archived/petitions/20685.
41
See, e.g., Office of the United States Trade Representative, Support for ACTA,
https://ustr.gov/callout/support-acta (including letters from the U.S. Chamber of
Commerce, the Recording Industry Artists of America, and the then Chairman of the U.S.
House of Representatives Judiciary Committee Lamar Smith).
42
See Benjamin Fox, MEPs to Vote on Acta [sic] Before Summer,
EUOBSERVER.COM (Mar. 28, 2012, 9:25 AM), http://euobserver.com/871/115725
(“Meanwhile, Green MEP Amelia Andersdotter commented that . . . [the treaty] would
‘lead to a heavy-handed and repressive enforcement of copyright with no regard to the
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philosophy on enforcement. The ACTA’s language was specifically
designed to be stronger than TRIPS, committing each signatory nation to
more rigorous standards than previously: “[e]ach Party shall ensure that
enforcement procedures are available under its law so as to permit
effective action against any act of infringement of intellectual property
rights covered by this Agreement, including expeditious remedies to
prevent infringements and remedies which constitute a deterrent to further
infringements.”43
The ACTA may not be where the world is, but it illustrates where
some of the world wanted to be. As Professor Yu noted above in previous
rounds of negotiations, developing countries have preferred to use the
mechanisms of the agreements to lodge their complaints rather than risk
being left out of the negotiation completely.44 While the standards of the
ACTA may have been rejected by the European Parliament,45 there are no
indications that the overall goals of the ACTA have been rejected by
Western countries.46
Interestingly, there was debate among commentators about
whether the ACTA represented the view of rights holders or their
countries. While there were a number of provisions beneficial to rights
holders, such as an exemption from having to prove actual damages47 and
an expansion of international injunctive relief,48 these provisions largely
focused on the expansion of government powers. Furthermore, generic
pharmaceutical companies had cause to be unhappy with ACTA because
they believed it could result in “the provision of sensitive commercial
information to competitors of generic pharmaceuticals manufacturers.”49
basic rights of citizens.’”).
43
Proposal for Council Decision on ACTA, supra note 38, at art. 6.
44
Yu, supra note 27, at 514.
45
Matt Warman, European Parliament Rejects ACTA Piracy Treaty, THE
TELEGRAPH
(July
4,
2012),
http://www.telegraph.co.uk/technology/news/9375822/European-Parliament-rejectsACTA-piracy-treaty.html.
46
See, e.g., After ACTA: EU Needs New Tools to Protect EU Intellectual
Property Rights, EUROPEAN PARLIAMENT NEWS, (June 9, 2015, 12:55 AM),
http://www.europarl.europa.eu/news/en/news-room/20150605IPR63110/After-ACTAEU-needs-new-tools-to-protect-EU-intellectual-property-rights.
47
Brent C. Jacobs, & Phillip Barengolts, The Anti-Counterfeiting Trade
Agreement (Acta): What It Is and How It Will Affect Intellectual Property Enforcement, 4
LANDSLIDE 59, 60 (2011) (“Of greatest significance is the availability of statutory
damages for both types of intellectual property violations, which exempts the rights
holder from having to prove actual damages.”).
48
Id.
49
Id. at 63.
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Whether the ACTA was intended for rights holders or contained
more nuanced applications of concepts, the agreement remains useful to
keep in mind as one potential future that seemed to have first world
support; it is useful for the understandings of IP enforcement it exposed
among the major powers of the West.
III. PART II: THE ASIAN VIEW
Thailand is hardly alone in Asia in having issues with IP
enforcement. It is one of many countries struggling to be a serious world
player and deal with a culture not grounded in the same concepts of IP as
the United States or Europe. Similar problems with IP enforcement exist
in China. China is similar to Thailand in that the culture views IP in a way
that an infringer may not even believe they have infringed.50 One would
be hard pressed to imagine a greater example of a country that in some
ways is still developing but in many others has become a true power
player of international politics.
China’s IP problems are as diverse as they are complex, with
different commentators seeing different issues. Some commentators see
the problem as a lack of Chinese political will, noting that:
It is laughable to hear excuses from Beijing that they can’t
control the 50 pirate CD factories. If they were turning out
thousands of copies of the BBC documentary on the
Tiananmen Square protest--rather than bootleg copies of
‘The Lion King’--the factory managers would be sharing a
cell with other dissidents in a heartbeat.51
Many commentators agree that there is something genuinely
different in how Asian nations and cultures view IP. While it seems
fundamental52 that we have some ownership of an artistic work we create,
this requires the evolution of a set of legal philosophies that have hardly
been universal in our own history. Professor Irina Manta, Director of the
Center for Intellectual Property Law at the Maurice A. Deane School of
Law, observed that “as a matter of historical record, policymakers have
largely relied upon analogies to property law in their decisions to
50
See Aileen M. McGill, How China Succeeded in Protecting Olympic
Trademarks and Why This Success May Not Generate Immediate Improvements in
Intellectual Property Protection in China, 9 LOY. L. & TECH. ANN. 1, 3 (2010) (“Nothing
about this process feels morally or legally wrong: you are selling a product in an open
market with hundreds of your peers and supporting your family.”).
51
Peter K. Yu, Three Questions That Will Make You Rethink the U.S.-China
Intellectual Property Debate, 7 J. MARSHALL REV. INTELL. PROP. L. 412, 420 (2008)
(quoting James Shinn, The China Crunch, WASH. POST, Feb. 18, 1996, at C1).
52
Albeit occasionally highly controversial. See, e.g., Carter v. Helmsley-Spear,
Inc., 71 F.3d 77 (2d Cir. 1995).
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introduce and legitimize criminal sanctions for violations of IP laws.”53
Implicit in this statement, and the rest of Manta’s article, is that without
the same historical reliance on the metaphor of property, and the same
Western evolution from object creation to ideation, the same philosophy
wouldn’t have developed. Most Asian countries lack the same background
and cultural assumptions, and therefore they may not arrive at the same
conclusions.
In China this phenomenon is demonstrably more extreme because
of the addition of Communism, which is predicated on the repression of
individual needs for the good of the whole (as established in the name of
the system). It has been observed that:
Chinese culture, isolated from Western societies for much
of its development, remains at odds with monopolistic and
exclusionary property rights for innovations, instead
maintaining that knowledge is to be shared. It is abundantly
clear why most of the Chinese population see little use for
protection of intellectual property rights; the sixty-year-old
communist regime that denies property rights and
subjugates the individual for the sake of the community
combined with the cultural disdain for proprietary
knowledge creates an environment hostile to intangible
property rights in creative expressions and innovations.54
This distance from the concept of property and ownership to
artistic works and even inventions is seen throughout the region. Even
Japan, a developed nation, is caught at the crossroads of the IP didactic
between IP producers and IP consumers.55 While the Japanese certainly
avail themselves of IP protection, and “benefit greatly from trademark
laws that prevent others from calling their cars ‘Honda Accord’. . . the
Japanese version of intellectual property law is porous and the attitude is
often ambivalent. The roots of this lie in social attitudes towards the role
of individuals within a society, interlocking relationships, the speed of
progress, and interaction with outside entities.”56 This is demonstrated in
the difference between the United States’ strong copyright protection, with
53
Irina D. Manta, The Puzzle of Criminal Sanctions for Intellectual Property
Infringement, 24 HARV. J.L. & TECH. 469, 473 (2011) (emphasis in original).
54
Jennifer A. Crane, Riding the Tiger: A Comparison of Intellectual Property
Rights in the United States and the People’s Republic of China, 7 CHI.-KENT J. INTELL.
PROP. 95, 97 (2008).
55
See Dan Rosen & Chikako Usui, The Social Structure of Japanese Intellectual
Property Law, 13 UCLA PAC. BASIN L.J. 32 (1994).
56
Id. at 33-34.
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some areas carved out for exception (such as fair use),57 versus Japan’s
implementation. In Japan, the stated goal is the promotion of the rights of
authors, but also fair exploitation of these “cultural products” to contribute
to cultural development.58 A work that is copyrighted can be reproduced
for personal, family, or other similarly limited use.59
Vietnam, a member of ASEAN with Thailand, has had an
interesting time forging its own path. Having overcome a number of
obstacles to joining the WTO, Vietnam, like China, now “has an economic
incentive to take a ‘sit and wait’ approach to compliance . . . Additionally,
the WTO requirements put Vietnam, like China, in an adversarial position
to the framers of the WTO.”60 Vietnam’s sit and wait position comes
because of the interplay of the country’s own needs, and the requirements
of TRIPS and the WTO.
Time and time again, the results of the countries accession to the
WTO results in an adversarial position, where countries are forced to deal
with Westernized standards and expectations in order to be a member of
“the club.” Monlux summarizes beautifully:
The shortcoming of such reforms is that they operate under
a Western style system of copyright rules and regulations
that fail to transcend Asian ideas of property rights,
especially in socialist countries. What is needed, then, is a
system that accommodates both the IP holders’ rights as
well as the unique social and cultural barriers in countries
such as Vietnam and China.61
IV. PART III: WHY THAILAND MATTERS, AND WHAT IT REPRESENTS
The following questions remain: In a world where Vietnam and
China have these issues writ large, why does Thailand warrant extra time
and effort for examination? What can it teach us? The answer is that
Thailand has a mix of Asian history but Western openness and
democratization, combined with a powerful economy. These factors put it
on the verge of tipping from an IP consumer to an IP producer.
Although many of Thailand’s neighbor countries have received
more attention for rapid economic growth and industrialization over the
last 25 years, Thailand has experienced steady growth and has had a
57
17 U.S.C. §§ 101, 107-112 (2011).
58
Rosen and Usui, supra note 55, at 35.
59
Id. at 36.
60
Nicholas R. Monlux, Copyright Piracy on the High Seas of Vietnam:
Intellectual Property Piracy in Vietnam Following WTO Accession, 37 AIPLA Q.J. 135,
182-83 (2009).
61
Id. at 185.
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powerful economic impact in Southeast Asia.62 Thailand’s annual gross
domestic product (“GDP”) has grown consistently since 1993, “averaging
over seven percent, per-capita GDP reaching levels in excess of
US$2,000.00.”63 Furthermore, “the manufacturing sector account[ed] for
over twenty-six percent of total GDP since 1991.”64 In 1995, it was
observed that “Thailand [was] well on its way to assuming the status of a
newly industrialized country by the end of this decade.”65 Although
Thailand’s economy was impacted by the Asian Financial Crisis of 1997,66
Thailand has continued to develop significantly and now sits as an
industrial power in the region.
This economic strength allows Thailand to be a strong trading
partner with the United States, as discussed supra, as well as to play a
powerful role in the region. Despite having gone through twenty
Constitutions67 in the eighty-four years68 since ending absolute monarchy,
Thailand has been a stable presence in a region that has gone through
much harsher royal overthrows and communist regimes; it is no surprise
then that Thailand was home to the Bangkok Declaration in 1967 that
formed the ASEAN.69
While informally known as the Land of Smiles, or by its current
advertising scheme of ‘Amazing Thailand,’70 the official name of the
country is the Kingdom of Thailand. The current King, Bhumibol
Adulyadej or Rama IX71, is the 9th Chakri King since the country was
62
Howard A. Kwon, Patent Protection and Technology Transfer in the
Developing World: The Thailand Experience, 28 GEO. WASH. J. INT'L L. & ECON. 567,
577 (1995).
63
Id.
64
Id.
65
Id.
66
See Steven Radlet & Jeffrey Sachs, The Onset of the East Asian Financial
Crisis, in CURRENCY CRISES 105, 105-62 (Paul Krugman ed., 2000), available at
http://www.nber.org/chapters/c8691.pdf.
67
Amy Sawitta Lefevre, Thai Junta Could Opt For a Previous Constitution If
Draft Rejected, Panel Official Says, REUTERS (Feb. 9, 2016, 3:07 PM),
http://in.reuters.com/article/thailand-politics-idINKCN0VI0PE (“Thailand's junta could
pick one from among 19 previous constitutions if a July referendum rejects a draft charter
unveiled last month, a constitutional panel spokesman said on Tuesday.”).
68
See
Promoters
Revolution,
ENCYCLOPEDIA
http://www.britannica.com/event/Promoters-Revolution.
BRITANNICA,
69
Ass’n of Southeast Asian Nations, The ASEAN Declaration (Bangkok
Declaration), Aug. 8, 1967, available at http://asean.org/the-asean-declaration-bangkokdeclaration-bangkok-8-august-1967/.
70
Amazing
Thailand,
TOURISM
http://www.tourismthailand.org/campaign/en/.
71
Bhumibol
Adulyadej,
AUTHORITY
ENCYCLOPEDIA
OF
THAILAND,
BRITTANICA,
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founded by King Chakri I (who was posthumously declared a
Buddha72).7374 In the centuries of its history, under different names and
capital cities, Thailand was never colonized.75 Thai people take great pride
in this fact,76 and this pride serves to encourage defensiveness whenever
they encounter something that they feel is a Western encroachment or
colonial mentality.
Thailand contrasts this defensiveness with a strong desire to work
with and enjoy the fruits of working with the West.77 Perhaps because it
was never colonized, it never displayed an anti-colonial backlash exhibited
elsewhere in the region, instead showing a great drive to maintain relations
with the West; Thailand has used these relations to encourage wealth and
technology and investment in their own country. 78 Thailand recognized
during the colonial expansion of France and England around it that it had
to level the playing field with Western powers as much as possible, and
adapted quickly to do so.79
IP law in Thailand is derived largely from Chinese Maritime Law
and Buddhist Law. These legal backgrounds, common to the region, have
resulted in the creation of some values which are antagonistic to
https://www.britannica.com/biography/Bhumibol-Adulyadej.
72
Rama
I,
NEW
http://www.newworldencyclopedia.org/entry/Rama_I.
WORLD
ENCYCLOPEDIA,
73
See Thongchai Winichakul, A Short History of the Long Memory of the Thai
Nation, U. VICTORIA, http://web.uvic.ca/~anp/Public/posish_pap/Winichakul.pdf.
74
On October 13, 2016, during the later stages of the editorial process for this
article, King Bhumibol Adulyadej passed away. See Danielle Belopotosky, What the
Death of Thailand’s King Means, and What’s Next, N.Y. TIMES (Oct. 13, 2016),
http://www.nytimes.com/2016/10/14/world/asia/thailand-king-death.html.
As
of
publication, the Crown Prince, Prince Vajiralongkorn, has not succeeded him on the
throne. See Richard C. Paddock, Thailand Says Bhumibol’s Cremation Is a Year Away,
With Heir’s Coronation to Follow, N.Y. TIMES (Oct. 15, 2016),
http://www.nytimes.com/2016/10/16/world/asia/thailand-king-bhumibol-adulyadej-deathcremation.html. The sentence has been left intact due to the lateness of the event in the
editing process.
75
Id.
76
INNA LIVITZ, MARGAUX MCDONALD, JODY MORITA & JANE YAGER, LET’S
GO: THAILAND 54 (3rd ed. 2007) (“The only country in Southeast Asia never to have
been colonized, Thailand has a proud and independent history . . . .”).
77
See Bureau of East Asian and Pacific Affairs, U.S. Relations With Thailand,
U.S. DEPARTMENT OF STATE, http://www.state.gov/r/pa/ei/bgn/2814.htm.
78
Andrea Morgan, TRIPS to Thailand: The Act for the Establishment of and
Procedure for Intellectual Property and International Trade Court, 23 FORDHAM INT'L
L.J. 795, 797-98 (2000).
79
See PHILIP G. ALTBACH & VISWANATHAN SELVARATNAM, FROM
TO AUTONOMY: THE DEVELOPMENT OF ASIAN UNIVERSITIES 64 (1989).
DEPENDENCE
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intellectual property.80 “In most Asian societies, including Thailand,
inventing a product, creating a work of art, or advancing learning is an
activity in the public domain. The fruits of these activities do not warrant
special legal protections that benefit the individual over the community.”81
As a result, Thailand, like China and India from whom Thailand derives
law, never developed the same cultural assumptions about the creation of
an original work that evolved in the West.
Again this cultural antagonism is balanced by a desire for Western
interaction. As Morgan points out, Thai law has recognized IP rights for
over a hundred years, even if such recognition only came because of
Western pressure to do so.82 Therefore, in many ways we can see Thailand
as where the rest of the region may be in ten or twenty years: rooted
steeply in a traditional anti-IP culture, but recognizing the Western
requirements to engage in international agreements and trade in order to
flourish and with the power to influence its regional partners when fully
committed.
Thailand, however, is not even close to completely buying into the
Western approach. Thailand does not have a Free Trade Agreement
(“FTA”) with the United States. Trade negotiations fell apart in part
because the United States was pushing a Trips-Plus83 set of IP restrictions
in the area of pharmaceutical licensing that would have cost Thailand
billions of dollars,84 as well as because of a coup while the then Prime
Minister was at the UN.85 While the Thai Judiciary has established the
aforementioned IP court, many international commenters also view the
80
Morgan, supra note 78, at 844.
81
Id.
82
Id. at 799.
83
Trips-plus refers to conditions negotiated between countries that expand on
the TRIPS minimums, often by a great deal. See, e.g., TRIPS, TRIPS-Plus and Doha,
MEDECINS
SANS
FRONTIERES
ACCESS
CAMPAIGN,
http://www.msfaccess.org/content/trips-trips-plus-and-doha
(“Despite
the
Doha
Declaration, in recent years, many developing countries have been coming under pressure
to enact or implement even tougher or more restrictive conditions in their patent laws
than are required by the TRIPS Agreement – these are known as ‘TRIPS plus’ provisions.
Countries are by no means obliged by international law to do this, but many, such as
Brazil, China or Central American states have had no choice but to adopt these, as part of
trade agreements with the United States or the European Union.”).
84
See Susan K. Sell, TRIPS Was Never Enough: Vertical Forum Shifting, FTAS,
ACTA, and TPP, 18 J. INTELL. PROP. L. 447, 475 (2011) (“Subsequently, and in
concordance with Aldis' judgment, the World Bank concluded that the U.S.-Thailand FTA
would have severely restricted its ability to issue compulsory licenses and would have
cost Thailand an extra $3.2 billion over twenty years.”).
85
See Seth Mydans & Thomas Fuller, With Premier at U.N., Thai Military
Stages
Coup,
N.Y.
TIMES
(Sept.
20,
2006),
http://www.nytimes.com/2006/09/20/world/asia/20thailand.html.
106
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Thai Pharmaceutical Patent Board (“TPPB”), and its harsh dealings with
foreign companies, as protecting Thai interests from the power of the
foreign pharmaceutical companies.86 As a result, Western companies,
predictably, view the TPPB as abusive.87 Like China and Vietnam,
Thailand has shown a willingness to play the same game; now is the time
when developing a culture of IP enforcement will help bring both sides
into harmonious enforcement.
Although Thailand is unique in many ways in the region, it shares
a large number of similarities with its neighbors. Thailand is unique
because it has never been colonized but its intellectual property law was
still derived from sources similar to that of many other Asian nations. In
the grand scheme of IP, Thailand may not be seen as terribly important
when compared to China.
Nevertheless, Thailand offers a lens to view the need for a
paradigmatic shift in IP enforcement. Thailand mixes all the contrasting
elements of IP enforcement and non-enforcement in the same way that all
of the nations in the world can be said to. Even China, with its powerful
economy and hundreds of articles devoted to it, has areas in which it is no
different in philosophy or implementation than other nations. Every nation
is in some ways compliant and in other ways defiant, driven by their
unique cultural assumptions. Thailand offers an opportunity to assess a
nation that has expressed a great desire to work with the West while
fiercely maintaining their independence and culture. Creating a system
that works for Thailand helps the West understand the flexible parameters
necessary to tailor enforcement regimens and create a culture of
enforcement anywhere.
V. PART IV: CREATING A CULTURE OF IP ENFORCEMENT
It has been argued that “WTO and TRIPS commitments must be
flexible enough to accommodate cultures that do not correspond to
Western notions of property rights.”88 The Thai saying that headed this
article is loosely interpreted to mean that someone is cutting off their nose
to spite their face; that they are acting to achieve a goal in a way that
ultimately harms the goal. That is the result of the current enforcement
paradigm as it is implemented across Asia: developed Western powers
demand new standards and timelines, which causes the less developed
Asian nations to take nominal steps
The first hard truth that rights holders and developed countries
have to accept is that there are no easy or short-term solutions to suddenly
make Asia TRIPS compliant. From the reports and assessments on how
86
Morgan, supra note 78, at 844.
87
Id.
88
Monlux, supra note 60, at 141.
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countries are failing to meet their responsibilities under TRIPS, or whether
their current efforts meet TRIPS,89 it is clear that none of the current
attempts are doing more than producing ill-will and law journal fodder.
A culture-based enforcement regimen is, by its very nature, going
to be a set of principles rather than a rigid code; it needs the flexibility, as
Monlux pointed out above, to make sure that the system can handle an
underlying culture that has no Western basis for IP. The four factors of a
culture based IP regimen are: (1) education, (2) community building, (3)
reasonable economics, and (4) flexible penalties. Only through organic
cultural creation, building up the ideas of enforcement and intellectual
property respect from the ground up rather than forcing top down change,
can the problems faced in enforcement be changed.
A. Education
Education applies not just to education on matters of intellectual
property, but a general investment by the local government and the
international community in the educational development of a country.
“[N]umerous theoretical and empirical studies have explored the impact of
education on IP perceptions and have revealed that countries with low
education levels tend to have high piracy rates, while those with high
education levels tend to emphasize the importance of IP protection.”90
IP rights themselves are a fairly attenuated concept. Only with a
broader and more theoretical education can the concept of someone
owning a concept or image, beyond an object bearing that image which is
in their physical control, becomes an obvious concept. Until 2008,
Thailand had a 2% drop in primary education, but a 61% increase in
secondary school education, and a 44% increase in university-level
education.91 The ongoing push in Thailand for expanded secondary and
post-secondary education gives an opportunity to include the basics of
respect for intellectual property in Thai education.
Thus, we find that in the broadest sense it is in the interest of the
rights holding developed nations to invest in the educational development
of the nations they wish to respect their rights; as a policy this increases
engagement between the two spheres of countries in ways that are
beneficial to both sides.
In a more specific sense, the first goal and policy must be to build
up in the populace the idea of abstract ownership. This is where the first
steps of the cultural change begin to take hold, in the consumers of five or
ten years from the start date. Not that the laws should not be enforced
89
Morgan, supra note 78, at 839.
90
Nan Sze Ling, Thailand's Ineffectual Intellectual Property Regime: A Trial
and Error Approach to Encouraging Foreign Direct Investment Technology Spillover, 24
N.Y. INT'L L. REV. 99, 123-24 (2011).
91
Id.
108
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during this time, or that those who are adults at the start date should be
given free reign, but that it is only in the emerging population that has
grown up understanding these to be fundamentally true concepts that
change will come. Without the fundamental basis of knowledge, you have
the myriad of ideas about intellectual property. On one end of the
spectrum is the belief that infringement is beneficial to local companies,
while on the other end of the spectrum there exist conspiratorial fancies
about patents being used to control developing nations.92
B. Community Building
Community building is the second step of education reaching out
to those who have passed beyond the level of primary and secondary
education, and concurrently with those in university education.
Community building involves taking the abstract lessons that piracy is
negative and applying it in a concrete way to how it affects Thailand.
Thailand has a number of companies based out of the country, with
protectable intellectual property.
For example, the world-renowned energy drink, Red Bull, was first
formulated in Thailand in 1976 as Krathing Daeng by Chaleo
Yoovidhya.93 The drink was incredibly popular and led the field in a style
of drinks known as ‘tonic drinks,’ a kind of herbal mixture very similar to
the Western style energy drinks, taking second only to a Japanese imported
drink.94 The little brown 60 mL bottles with the charging red guar bulls (a
kind of Asian bovine) quickly became ubiquitous.95 In 1982, an Austrian
businessman named Dietrich Mateschitz tried Krating Daeng to cure his
jetlag, and was so impressed he struck up a deal with Yoovidhya to refine
it and sell the drink internationally.96 This deal, which formed the modern
Red Bull LLC, made the former son of poor duck farmers as the third
richest man in Thailand with a value of five billion dollars.97 Yoovidhya is
an inspirational story to many Thais who hope to someday go from a
modest background to wealth, the same entrepreneurial spirit valued in the
United States.
92
Id.
93
Martin Childs, Chaleo Yoovidhya: Recluse Who Created the Red Bull Energy
Drink,
THE
INDEPENDENT
(Mar.
20,
2012),
http://www.independent.co.uk/news/obituaries/chaleo-yoovidhya-recluse-who-createdthe-red-bull-energy-drink-7579362.html.
94
Id.
95
See, e.g., Thai Billionaire Who Invented Red Bull Dies Aged 89, THE
GUARDIAN
(Mar.
17,
2012,
4:00
AM),
https://www.theguardian.com/world/2012/mar/17/red-bull-billionaire-dies-thailand (“It
became popular among Thai truck drivers and labourers.”).
96
Childs, supra note 95.
97
Id.
2016
Parker
109
Here then is an opportunity for Red Bull LLC and rights holders to
make the connection. There are many tonic drinks in Thailand, but it was
the protection provided Red Bull’s unique marketing and formula by the
laws of Intellectual Property that allowed a Thai invention to become the
most popular energy drink in the world. With a culture at least partially
inclined now to see IP rights as legitimate, the Krating Daeng rags-toriches story helps illustrate how these protections are not just for American
moviemakers; they are international rights available to Thais who create or
invent as well. This parlays into protection for Thai music stars, who are
regional celebrities in fields such as Pop and Thai Country but who faced
flat revenues in 2010 and 2011 because of piracy.98 Creating the
connection between those industries and the Thai economy, prosperity for
individual performers, and cultural power in the region will help begin to
move enforcement from something the foreign countries want to
something the Thai people need.
This requires a further investment of time and money by developed
countries, but encourages them to pursue involvement in business in the
developing countries. The best examples they can offer of international
rights giving local protection are new companies beginning to gain
regional or global prominence. Every time a local company can claim that
it is protected and its employees are prosperous because of Thai law and
TRIPS, it is one more group of people who are inclined to think of
property rights.
Even with the increased acceptance of IP law from a producer’s
perspective, a consumer can still be motivated simply by greed. When the
time comes for a consumer to find something to do with their evening, if
the cost of a legitimate DVD dramatically outweighs the cost of an
illegitimate one, the consumer will be fighting economic incentive with
philosophy – and philosophy is hard pressed to win that fight.
C. Reasonable Economics
Reasonable economics means the recognition by the rights holders
and the developed countries of the world that they cannot expect to make
the same amount of money in every country, and therefore their economic
expectations must be individually tailored as well. Instead, their goal must
be to make sure their choices allow them to make a profit in every country,
which will reduce piracy and ultimately bring them more money in the
long-run.
Set in 2012, the minimum wage for a worker in Bangkok and six
other provinces is 300 baht99 (US$9.70 at current exchange rate) per
98
99
IIPA, 2012 SPECIAL 301 REPORT, supra note 2, at 105.
Rate conversion as of October 2, 2016. See Thailand Minimum Daily Wage,
TRADING ECONOMICS, http://www.tradingeconomics.com/thailand/minimum-wages.
110
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day,100 or roughly US$260.00 per month.101 This is an increase from 221
baht from 2011.102 Thailand is a major electronics manufacturer where
many living on or close to the minimum wage have access to a TV, and
DVD players are ubiquitous and inexpensive.103 A pirated DVD costs an
average of 60-100baht per disc104 from one of the equally ubiquitous street
side stores where the movies are burned on demand, and new movies are
often available the day after they are in the theaters because Thailand is a
major contributor to the camcorder recording of new-run movies.105
Pharmaceutical fields face an even stronger disparity between the
cost of a legitimate run of medicine and that of one the Pharmaceutical
Board has compulsorily licensed, and provide an even greater area where
rights holders have died to spite the graveyard. Even when given an
opportunity to negotiate price with the Thai government so that a noncompulsory license could be used, Merck’s best offer was 1500 baht per
month versus the 800 baht per month that it would cost to import generics
from India.106 This is a significant price drop from the 33,330 baht
(US$924.00) per month of a full cost treatment. However, when faced
with licensing from Merck or importing from India, the almost double cost
meant that Thailand really had no choice but to issue a compulsory
license, import from India, and pay for it to be part of the “30 baht”
universal health care plan. By doing this they were able to set a goal of
providing the drug for 150,000 Thais by 2008107. Instead of seeing a small
100
Bangkok Pundit, Raising Welfare, Labor Productivity and Unemployment
Effects of the Minimum Wage Rise in Thailand, ASIAN CORRESPONDENT (Apr. 10, 2012),
http://asiancorrespondent.com/80128/raising-welfare-labor-productivity-andunemployment-effects-of-the-minimum-wage-rise-in-thailand/.
101
Currency
Converter,
XE.COM,
http://www.xe.com/currencyconverter/convert/?Amount=1&From=THB&To=USD.
102
Thailand Minimum Daily Wage, supra note 101.
103
DVD
Aconatic
AN-9260DVPH,
POWERBUY.COM,
http://www.powerbuy.co.th/en/p/dvd-aconatic-an-9260dvph. As of October 2, 2016, 990
baht is US$28.60. See Currency Converter, supra note 103.
104
DVD
Shopping,
TRAVELFISH.ORG,
https://www.travelfish.org/sight_profile/thailand/bangkok_and_surrounds/bangkok/bangk
ok/2994 (listing the costs of pirated DVDs at various malls and shops around the city of
Bangkok).
105
See IIPA, 2012 SPECIAL 301 REPORT, supra note 2, at 104-05 (“33 illegal
copies of Motion Picture Association of America member company movies were sourced
to illegal camcords in Thailand . . . .”).
106
Press Release, Medecins Sans Frontieres (Doctors Without Borders), MSF
Welcomes Move to Overcome Patent on AIDS Drug in Thailand (Nov. 29, 2006) (on file
at http://www.doctorswithoutborders.org/news-stories/press-release/msf-welcomes-moveovercome-patent-aids-drug-thailand).
107
Id.
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profit by recognizing economic realities, Merck acted to preserve its profit
margin and ended up seeing nothing.
This is what reasonable economics means. Education only takes a
consumer to the point where they are considering using a legitimate source
– if that legitimate source is substantially more expensive, a citizen in a
developing country is far more likely to rationalize that they are doing
something they now know is wrong under the justification of necessity. A
company that insists on charging US$50.00 per month for an AIDS drug
that costs (according to a MSF presentation) at most US$0.65 per pill,108 is
trying to preserve a Western style profit margin at the cost of having any
profit in the region. Similarly, charging US$10.00 for a legitimate DVD in
a country where that is an appreciable percentage of the minimum wage –
and the pirated version is a tenth of that – is destined to watch sales go to
the pirates even among those who recognize the practice is wrong. The
price point is even more ridiculous when compared against the fact that
Thailand manufactures DVDs, and a legitimately licensed creation on
demand service could put costs at so near to the pirated goods as to
provide genuine and legal competition. So long as rights holders and
developed states continue to demand inflexible Western style price points
in countries where vast numbers of consumers cannot regularly afford that,
they will see only the continuing trend of disrespect for IP rights and
compulsory licenses for pharmaceuticals.
That is not to say that pharmaceutical companies, or rights holders
selling their movies on DVD, are not entitled to a profit – even a profit
that includes the recouping expenses of creation. While The West Wing is
not wrong in its comment that while the second pill costs four cents, the
first cost four hundred million dollars,109 part of the theory behind sensible
economics is that a company has to recognize where it can make profit,
and how much it can make in that place. As such, they have to recognize
that their profit and the recouping of research expense isn’t going to come
from Thailand or Africa, that offering AIDS medicine for 30 baht would
have ensured a profit of one dollar instead of none, and that one dollar per
100,000 patients per day adds up.
108
Merck & Co., Inc., Again Reduces Price of Stocrin (efavirenz) for Patients in
Least Developed Countries and Countries Hardest Hit by Epidemic, BUSINESS WIRE
(Feb.
14,
2007,
5:00
PM),
http://www.businesswire.com/news/home/20070214005130/en/Merck-Reduces-PriceSTOCRIN-efavirenz-Patients-Developed (“Merck first announced that it was reducing
the prices of STOCRIN and CRIXIVAN in developing countries to prices at which the
Company makes no profit on March 7, 2001. Since then, access to HIV medicines has
accelerated in the least developed countries and those countries where HIV/AIDS has hit
hardest.”).
109
The West Wing: In This White House (NBC television broadcast 2000) (“You
know that's not true. The second pill cost 'em four cents; the first pill cost 'em four
hundred million dollars.”).
112
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D. Flexible Penalties
If sensible economics is modifying the carrot to fit the market, then
flexible penalties is modifying the stick. As seen with the ACTA, the
developed nations favor approaches that penalize not just a large-scale
enterprise infringer but also an end-using infringer. This can be seen from
the Recording Industry Artists of America (“RIAA”) pursuit of over
30,000 lawsuits for file sharing cases in the United States from 2003-2008,
with thousands of dollars (sometimes hundreds of thousands) in fines and
settlements.110 An attempt to go after Thai citizens for such funds would
be ludicrous on a variety of levels, but going after the end-user as much as
the supplier is not likely to create much more good will in Thailand than it
did with the RIAA lawsuits in the United States. Furthermore, going after
both the supplier and the end-user equally represents another view of the
situation as seen through a Western lens.
As stated in the 2012 Special 301 Report, fines in IP related cases
ranged from 320,000 baht (US$10,700.00) to 26,000 baht (US$870.00).111
In a country that reportedly suffers 3.5 billion baht (US$113,378,650.00)
per year in lost legitimate revenue,112 these fines are clearly not deterrents.
But to begin forcing fines on an end-user, or mandating internet
disconnects from a country that has 100% data connectivity, is clearly an
impracticable solution. Thus the only effective solution would be to
encourage the country to lower penalties for end-users while raising them
to the level of true deterrence for those who enable infringement. Street
level infringers should not be treated harshly, while those businesses
operating on a level that could be identified as being a criminal enterprise,
should be punished more harshly. While this paradoxically makes it easier
for an end-user to justify purchasing a pirated DVD, following on the
heels of the other reforms, it gives the end-user the feeling that the
government and international communities are going after the true largescale infringers. This leaves the end-user with the option to pursue
economical legal choices he understands to be moral. Offer a person a
moral choice within a consumer’s price range, and they will take it more
often than not under any but the most cynical worldview. The challenge
for lawmakers is finding the right balance between morality and
economics.
None of these concepts are particularly unique. Various proposals
through the years have called on a greater investment in education. In
110
David Kravets, File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA
Litigation,
WIRED
(Sept.
4,
2008,
2:55
PM),
http://www.wired.com/threatlevel/2008/09/proving-file-sh/.
111
112
2012 REPORT, supra note 11, at 105.
King-oua Laohong, 50,000 Pirated Items Seized in Store Raid, BANGKOK
POST (Feb. 28, 2012), http://www.bangkokpost.com/print/281901/.
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particular, there is a need for recognition that the price of a drug cannot
stay the same in every country and have a possibility of not being
counterfeited or compulsorily licensed if it is particularly valuable. But it
is in balancing all four of the inputs (education, community building,
reasonable economics, and flexible penalties) listed in this article that is
unique, and the only way in which a solution can be found. Individually,
none of the factors are sufficient to develop an effective IP enforcement
mechanism within the existing cultural norms. The key is to balance the
factors correctly and to create a cultural assumption that IP enforcement is
beneficial that a long-term solution exists. Finding the right balance
between all of the factors is as important as knowing they all exist, and
each country’s balance will be slightly different. Thailand shows us that
without, or no long-term change can be had.
Equally important, we can begin to see from the application of
these concepts, that this problem is not unique to Asian nations or
developing nations. Every country has issues with intellectual property
enforcement, even the United States – just look at the debate over music
piracy. Even the most developed nations must be responsible for creating
their own cultures of enforcement, and maintaining the balance between
economic benefits and moral standards. Thailand is not just a lens to Asia,
but should be used as a lens to a culture of enforcement in every culture.
VI. CONCLUSION
IP rights are widely recognized as one of the great divides in the
international legal world today, with the gulf separating the producers
from the consumers. Especially in a region where there is little culturally
ingrained respect for IP rights, it can seem like there is little hope of there
ever being a solution that is truly equitable to both sides. Faced with this,
Western powers use all of the tools at their disposal to create new and
harsher regimes for enforcement, often times foisting them on countries as
part of expanded doctrines contained in Free Trade Agreements. With
effort and a recognition that true change can only come from a ground
level cultural education and long term strategic planning, the gap can be
bridged. Thailand is a fertile ground for proving the effectiveness of
culture-based enforcement schemes. Thailand’s unique combination of
Asian cultural assumptions, coupled with a desire to be a player in the
Western world, the country presents an opportunity to begin the new
paradigm of IP enforcement. More importantly, by creating a scheme to
create that culture in Thailand, general and flexible paradigms can be
developed to help bridge the gaps in enforcement the world over.