Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 7-2012 Intellectual Property and Asian Values Peter K. Yu [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Comparative and Foreign Law Commons, and the Intellectual Property Law Commons Recommended Citation Peter K. Yu, Intellectual Property and Asian Values, 16 Marq. Intell. Prop. L. Rev. 329 (2012). Available at: https://scholarship.law.tamu.edu/facscholar/399 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. INTERNATIONAL INTELLECTUAL PROPERTY SCHOLARS SERIES* INTELLECTUAL PROPERTY AND ASIAN VALUES PETER K. YU** I. INTRODUCTION...........................................330 II. THE ASIAN VALUES DEBATE..............................336 A. Human Rights................... ................... 336 B. Intellectual Property.................... ............. 339 1. Cultural Developments....... ..................... 340 2. Economic Developments..........................351 3. Geopolitical Rivalries.............................365 III. CHINDIASEAN ........................ ................... 370 IV. AGENDA ................................................ 378 A. Traditional Issues ............................ ....... 379 * The Marquette Intellectual Property Law Review International Intellectual Property Scholars Series features the works of leading national and international scholars whose areas of research include the study of important topics in international intellectual property law and policy. The 2011-2012 Editors of the Marquette Intellectual Property Law Review would like to thank Professor Yu for accepting the invitation to publish in this series. ** Copyright ©D2012 Peter K. Yu. Kern Family Chair in Intellectual Property Law and Director, Intellectual Property Law Center, Drake University Law School; Wenlan Scholar Chair Professor, Zhongnan University of Economics and Law; Visiting Professor, Centre for International Intellectual Property Studies, University of Strasbourg. Earlier versions of this Article were presented at the Colloquium on China and International Law at the Univ 'ersity of Chicago Law School, the "International Intellectual Property Law and the 21st Century: Will Developing World Lead or Follow?" Symposium at UCLA School of Law, the "Recent Developments in Intellectual Property Law in Southeast Asia" Workshop organized by the Centre for Comparative Law and Development Studies in Asia and the Pacific at the University of Wollongong, as a public lecture sponsored by the Asia-Pacific Intellectual Property Law Institute in the School of Law at Murdoch University, and as a faculty colloquium at Marquette University Law School. The Author would like to thank Christoph Antons, Irene Calboli, Tom Ginsburg, Neil Netanel, and Ken Shao for their kind invitations and hospitality and Bruce Boyden, Irene Calboli, Sun Haochen, and the participants of these events for their valuable comments and suggestions. He is also grateful to Lindsey Purdy for excellent research and editorial assistance. 330 MARQ. INTELL. PROP.L. REV. [Vol. 16:2 1. Enforcement ...................................... 379 2. Traditional Knowledge and Cultural Expressions............380 3. Geographical Indications ................ ........ 382 4. Access to Essential Medicines .............. ...... 383 5. Internet and Other New Technologies...............................385 B. New Issues.. .............................. ....... 388 1. Climate Change ............................... 388 2. Alternative Innovation Models .............. ..... 389 3. Special and Differential Treatment .......... ...... 392 4. Uneven Economic and Technological Developments......395 5. Abuse of Rights and Restraint on Trade ........ ....... 396 C. Summary ............................................ 397 V. CONCLUSION.................................................398 I. INTRODUCTION In the past few years, many scholars and commentators have explored why the West has been more economically developed and technologically advanced than other parts of the world. In his new book, Civilization: The West and the Rest, renowned historian Niall Ferguson identified six "killer applications" that have helped the West achieve its rise to global dominance.' In a cautiously titled book, Why the West Rules-for Now, archaeologist-historian Ian Morris also questioned why the West has dominated the globe for the past two centuries and whether such dominance would continue amid the rise of China, India, and other emerging powers.2 Using a different entry point, Newsweek Internationaleditor Fareed Zakaria explored the "rise of the rest," discussing how global powers could shape up in what he called the "Post-American World."' Although all of these books carry a mostly positive message, they were all written against a background of growing worries that the West will eventually lose its competitive edge. Indeed, the release of these books has coincided with the growing attention commentators are now paying to the rise of Asia. While some wonder whether the twenty-first century will be the Asia Century,4 1. NIALL FERGUSON, CIVILIZATION: THE WEST AND THE REST 13 (2011). 2. IAN MORRIS, WHY THE WEST RULES-FOR Now: THE PATTERNS OF HISTORY, AND WHAT THEY REVEAL ABOUT THE FUTURE (2010). 3. FAREED ZAKARIA, THE POST-AMERICAN WORLD (2008). 4. See, e.g., MARK BEESON, INSTITUTIONS OF THE ASIA-PACIFIC: ASEAN, APEC AND BEYOND 3 (2008) (noting the "overblown hyperbole about the 'Asian Century'"); Symposium, The Asian Century?, 44 U.C. DAVIS L. REV. 715 (2011) (interrogating whether 2012] INTELLECTUAL PROPERTY AND ASIAN VALUES 331 others have examined the growing role of the so-called BRICS countries,' which initially included Brazil, China, India, and Russia but have now been generalized to cover other emerging middle-income countries, such as South Africa. A growing number of books have also looked at the role of China and India in Africa and Latin America. this century will be the "Asian Century"). Some commentators, however, are more certain. See, e.g., STEVE CHAN, CHINA, THE US AND THE POWER-TRANSITION THEORY: A CRITIQUE ix (2007) ("It is anticipated that by the year 2025, seven of the world's ten largest economies will be located in Asia."); ODED SHENKAR, THE CHINESE CENTURY: THE RISING CHINESE ECONOMY AND ITS IMPACT ON THE GLOBAL ECONOMY, THE BALANCE OF POWER, AND YOUR JOB (2005) (declaring the twenty-first century as the "Chinese Century"); EDWARD TSE, THE CHINA STRATEGY: HARNESSING THE POWER OF THE WORLD'S FASTEST-GROWING ECONOMY 6 (2010) (stating that "one of the safer predictions for the first half of the twenty-first century is that China's growth, supported by that of India and several other countries, will make Asia the source of more than half the world's gross domestic product by around 2030"). 5. See Dominic Wilson & Roopa Purushothaman, Dreaming with BRICs: The Path to 2050 (Goldman Sachs, Global Economics Paper No. 99), available at http://www2.goldmansachs.com/ideas/brics/book/99-dreaming.pdf (advancing the concept of the BRICs countries); see also PRICEWATERHOUSECOOPERS, THE WORLD IN 2050: THE ACCELERATING SHIFT OF GLOBAL ECONOMIC POWER: CHALLENGES AND OPPORTUNITIES 3 (2011), available at http://www.pwc.com/enGX/gx/world-2050/pdf/world- in-2050-jan-2011.pdf ("E7 [China, India, Brazil, Russia, Indonesia, Mexico and Turkey] would overtake the G7 before 2040."). 6. See, e.g., CHIDI OGUAMANAM, INTELLECTUAL PROPERTY IN GLOBAL GOVERNANCE: THE CRISIS OF EQUITY IN THE NEW KNOWLEDGE ECONOMY 221-22 (2012) (expanding BRICS to cover other emerging middle-income economies); Peter K. Yu, Access to Medicines, BRICS Alliances, and Collective Action, 34 AM. J.L. & MED. 345, 346 (2008) [hereinafter Yu, Access to Medicines] (expanding the BRICS acronym to cover South Africa); S6bastien Hervieu, South Africa Gains Entry to BRIC Club, GUARDIAN WKLY. (Apr. 19, 2011, 09:04 AM), http://www.guardian.co.uk/world/2011/apr/19/south-africa-joins-bric-club (reporting about the South African president joining his counterparts from Brazil, Russia, India, and China for the third summit meeting of the informal group in China). 7. See, e.g., AFRICAN PERSPECTIVES ON CHINA IN AFRICA (Firoze Manji & Stephen Marks eds., 2007); CHRIS ALDEN, CHINA IN AFRICA: PARTNER, COMPETITOR OR HEGEMON? (Alex De Waal & Richard Dowden eds., 2007); DEBORAH BRAUTIGAM, THE DRAGON'S GIFT: THE REAL STORY OF CHINA IN AFRICA (2009); HARRY G. BROADMAN, AFRICA'S SILK ROAD: CHINA AND INDIA'S NEW ECONOMIC FRONTIER (2007); PADRAIG CARMODY, THE NEW SCRAMBLE FOR AFRICA (2011); CHINA AND THE DEVELOPING WORLD: BEIJING'S STRATEGY FOR THE TWENTY-FIRST CENTURY (Joshua Eisenman et al. eds., 2007) [hereinafter CHINA AND THE DEVELOPING WORLD]; CHINA INTO AFRICA: TRADE, AID, AND INFLUENCE (Robert 1. Rotberg ed., 2008); CHINA RETURNS TO AFRICA: A RISING POWER AND A CONTINENT EMBRACE (Chris Alden et al. eds., 2008); CHINA'S EXPANSION INTO THE WESTERN HEMISPHERE: IMPLICATIONS FOR LATIN AMERICA AND THE UNITED STATES (Riordan Roett & Guadalupe Paz eds., 2008) [hereinafter CHINA'S EXPANSION INTO THE WESTERN HEMISPHERE]; CHINA'S NEW ROLE IN AFRICA AND THE SOUTH: A SEARCH FOR A NEW PERSPECTIVE (Dorothy-Grace Guerrero & Firoze Manji eds., 2008) [hereinafter CHINA'S NEW ROLE]; ROBERT EVAN ELLIS, CHINA IN LATIN AMERICA: THE WHATS