Bric Ip Enft

American Business Law Journal
Volume 43, Issue 2, 317363, Summer 2006
Defending Intellectual Property

Rights in the BRIC Economies
Robert C. Birdn
I. INTRODUCTION
Protecting intellectual property rights in Brazil, Russia, India, and China,
collectively known as the BRIC economies, has become an important policy focus of the U.S. government. These important emerging economies
have not yet fully developed intellectual property protection and enforcement mechanisms. In all four countries, intellectual property infringement
ranges from rampant to merely widespread. Nonetheless, U.S. firms cannot afford to ignore the market opportunities in these rapidly growing
nations. This presents an obvious quandaryFhow can U.S. companies
remain competitive in the BRIC economies while still protecting their intellectual property rights? This article will investigate possible answers to
this question.
This question holds particular importance in light of a 2003 study
titled Dreaming with BRICs: The Path to 2050, published by Goldman
Sachs.1 This paper examined growth projections of the BRIC economies
from the present date to 2050 relative to long-term projections of the G6
Assistant Professor, University of Connecticut. I would like to thank Subhash Jain and the
University of Connecticuts Center for International Business Education and Research for
funding to support the completion of this article. My thanks are given for the comments and
support of the attendees of the BRIC Conference held at the University of Connecticut in
April 2005. I appreciate comments and support from Dan Cahoy and Leigh Anenson. I
gratefully acknowledge research assistance from Christophe Pane and Anne Taylor. An earlier
version of this article is forthcoming in a chapter of a book edited by Subhash Jain. All errors
and omissions are my own.
Dominic Wilson & Roopa Purushothaman, Dreaming with BRICs: The Path to 2050 (Goldman
Sachs, Global Economics Paper No. 99, 2003), available at http://www.gs.com/insight/research/
reports/99.pdf.
r Academy of Legal Studies in Business 2006
317
318
Vol. 43 / American Business Law Journal
countries.2 The authors applied demographic trends to projections of capital accumulation and productivity growth to make their predictions. The
results were startling. In less than forty years, the BRIC economies collectively will be larger than the G6.3 Indias economy is projected to be
larger than all nations except the United States and China in as little as
thirty years.4 China may overtake Germany in economic size within four
years, Japan within ten years, and the United States within thirty-five
years.5 India is expected to grow at the rate of five percent per year for the
next thirty years.6 By 2050, only the United States and Japan may be left of
the current six largest economies in the world.7
It is reasonable to conclude that over the next forty years the BRIC
economies will increasingly influence the worlds political, economic, and
military balance of power. Also, the rise of BRIC power will have significant
implications for the international business legal environment. Yet few legal
scholarly articles discuss the BRIC economies collectively as an emerging
economic force.8 This article focuses on one important legal aspect of
BRICs economic growthFthe international protection of intellectual
property rights.9 The lack of intellectual property rights protection ranks
2
Id. at 3. The G6 was the G8s immediate predecessor. Members of the G6 are generally
viewed as the United States, Japan, Germany, France, Italy, and the United Kingdom. For
more information on the G8, which includes the G6 plus Canada and Russia, see Profile: G8,
http://news.bbc.co.uk/1/hi/world/americas/country_profiles/3777557.stm; G8 Information Centre,
http://www.g7.utoronto.ca/.
3
Wilson & Purushothaman, supra note 1, at 4.
Id.
Id.
Id.
Id. at 4.
Exceptions to this rule are, for example, Michael Littlewood, Tax Competition: Harmful to
Whom?, 26 MICH. J. INTL L. 411, 478 n.278 (2004) and Srividhya Ragavan, The Jekyll and Hyde
Story of International Trade: The Supreme Court in Phrma v. Walsh and the TRIPS Agreement, 38 U.
RICH. L. REV. 777, 824 n.279 (2004).
9
This article examines intellectual property protections in all four BRIC countries, but places
extra emphasis on the Chinese economy. The Chinese economy absorbs the most investment
from the United States, is studied the most out of the four economies, and has received the
greatest attention from the United States regarding intellectual property rights enforcement.
As the Chinese economy appears to be the most advanced of the four, discussions of intellectual property in China will be relevant to the other BRICs as Brazil, Russia, and India
follow Chinas economic path.
2006 / Defending Intellectual Property Rights in the BRIC Economies
319
for many firms as the single most significant threat to their international
competitiveness.10
This article is divided into five parts. Part II examines the efforts of
the United States to establish intellectual property as a trade issue,
develop an international intellectual property regime, and enforce rights
of U.S. firms abroad. It also examines the use of the TRIPS enforcement
regime and Special Section 301 by the United States to pressure the BRIC
countries to adopt higher standards of intellectual property protections.
Part III further explores the effectiveness of coercion in protecting U.S.
intellectual property rights abroad. This part discusses U.S. reliance on
sanction-based measures and the long-term effect of these measures on
protecting intellectual property rights. Two coercion-response models are
examined: the China Cycle of Coercion and the India Cycle of
Coercion. The first model reflects a retaliation-response and the the second model reflects a delayed-response reaction to U.S. coercion. This
part concludes that while coercion is sometimes necessary, it is not an
ideal strategy to sustain the long-term protection of intellectual property
rights.
Part IV of this article examines the efficacy of unilateral initiatives as a
component of a national intellectual property protection strategy. Unilateral initiatives are defined as measures presented to a recipient without an
immediate expectation of reciprocation. This part shows that unilateral
initiatives are an effective part of any negotiating strategy to improve
intellectual property rights internationally. This article concludes that
unilateral initiatives have been given insufficient attention in intellectual
property rights strategies and should become a part of any measure to
protect such rights in the BRIC economies.
II. THE RISE OF THE INTERNATIONAL INTELLECTUAL

PROPERTY REGIME AND THE U.S. STRATEGY OF
COERCION
During the eighteenth and nineteenth centuries inventors desiring patents
would be required to simultaneously submit patent applications in all the
10
Ilkka A. Ronkainen & Jose-Luis Guerrero-Cusumano, Correlates of Intellectual Property

Violation, 9 MULTINATL BUS. REV. 59, 59 (2001).
320
countries where the inventor wanted patent protection.11 Failure to do so

resulted in nullifying patent protection for all except one of the nations to
which the patent was submitted on the grounds that the first application
destroyed the novelty of subsequent applications.12 The lack of global
protection became so acute that inventors refused to attend an international exhibition of inventions in Vienna in 1873 for fear of losing their
patent rights.13
The lack of international protection of intellectual property rights
remained the norm until the passage of the 1883 Paris Convention for the
Protection of Industrial Property14 and the 1886 Berne Convention for
the Protection of Literary and Artistic Works.15 Among other things, these
conventions established the principle of national treatment.16 The national
treatment principle requires nations to grant foreign patent holders the
same rights given its own citizens. These agreements also required signatories to impose minimum standards of intellectual property protection.
Revised and amended extensively over time, these conventions remain the
foundation of international intellectual property law.17
Unfortunately, the Paris and Berne Conventions have failed to adequately limit the global piracy of intellectual property. Nations retain broad
discretion in granting intellectual property protections despite being
11
Gerald J. Mossinghoff, National Obligations Under Intellectual Property Treaties: The Beginning of
a True International Regime, 9 FED. CIR. B.J. 591, 593 (2000).
12
Id.
13
Id. at 59495 (citing Warren S . Wolfeld, Note, International Patent Cooperation: The Next Step,
16 CORNELL INTL L. REV. 229 (1983)).
14
Paris Convention for the Protection of Industrial Property, July 14. 1967, 21 U.S.T. 1583,
T.I.A.S. No. 6295, 828 U.N.T.S. 305 [hereinafter Paris Convention]. Belgium, Brazil, France,
Guatemala, Italy, the Netherlands, Portugal, Salvador, Servia, Spain, and Switzerland were the
original signatories to the Paris Convention. Gregory W. Hotaling, Ideal Standard v. IHT: In the
European Union, Must A Company Surrender its National Trademark Rights When it Assigns its
Trademark?, 19 FORDHAM INTL L.J. 1178, 1240 n.365 (1996).
15
Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised at
Paris July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 [hereinafter Berne Convention].
16
Frank Emmert, Intellectual Property in the Uruguay RoundFNegotiating Strategies of the Western
Industrialized Countries, 11 MICH. J. INTL L. 1317, 1337 (1990).
17
Id. See also Jason Taketa, Note, The Future of Business Method Software Patents in the Intellectual
Property System, 75 S. CAL. L. REV. 943, 958 (2002).
321
signatories to these conventions.18 Entire fields of patentable technology,

such as pharmaceuticals, biotechnology, and agricultural chemicals, have
been excluded from protection.19 Copyrightable documents such as educational materials have also been excluded.20 The duration of patent
protection, at times, was so limited as to be only minimally effective in
protecting such rights.21 Some countries limited patentability to the process alone and not the end product.22 The result was an international legal
environment that failed to protect the most basic of intellectual property
rights. Limited intellectual property rights protection and the lack of any
real harmonization led to complaints about the effectiveness of the Paris
and Berne Conventions.23
The failures of global intellectual property protection rose to prominence in the United States during the 1980s, when executives became
concerned with the decline of American competitiveness in manufacturing.24 The rise of technologically focused industries also gave intellectual
property enhanced importance.25 The time had come for American businesses to use their economic and political power to encourage other
nations to respect intellectual property rights.
American businesses began in earnest to reshape the modern global
intellectual property regime during the early phases of the Uruguay
Round of the General Agreement on Tariffs and Trade (GATT), negotiated between 1986 and 1994. The proposed agenda for this round of
negotiations was similar to topics discussed in the past: the improvement
of trade in the textiles and apparel, services, agriculture, foreign direct
18
Emmert, supra note 16, at 1340. See also Andrew T. Guzman, International Trust and the WTO:
The Lesson From Intellectual Property, 43 VA. J. INTL L. 933, 948 (2003).
19
Emmert, supra note 16, at 1340.
20
Id.
21
Id.
22
Id.
23
Guzman, supra note 18, at 94849.
24
Peter M. Gerhart, Reflections: Beyond Compliance TheoryFTRIPS as a Substantive Issue, 32 CASE

W. RES. J. INTL L. 357, 367 (2000).
25
Id.; Kenneth W. Dam, The Growing Importance of International Protection of Intellectual Property,
21 THE INTL LAWYER 627, 629 (1987). See generally Ralph Oman, Intellectual PropertyFOur Once
and Future Strength, 27 GEO. WASH. J. INTL L. & ECON. 301 (199394).
322
investment, and government procurement.26 Both developed and developing countries had much to gain from the negotiations. Developing
countries wanted to liberalize trade in textiles and apparel products.27
Developed countries hoped to liberalize service and foreign direct investment requirements.28 Despite attempts by American businesses, intellectual property rights, although a significant global issue by the mid-1980s,
was not part of the GATT agenda. The United States sought support from
their European and Japanese allies to make intellectual property a trade
issue.29 The inadequacy of intellectual property protection in the areas of
patents, copyrights, and trademarks facilitated the emergence of common
interests among disparate companies and organizations.30 The Pharmaceutical Manufacturers Association (PMA) promoted intellectual property
protection as a trade issue in its testimony before Congress.31 The International Intellectual Property Alliance (IIPA), an organization dedicated to
policing national copyright protection efforts, also played a major role in
changing the GATT agenda.32 Large multinational corporations formed
a cross-industry organization called the Intellectual Property Committee
(IPC), representing companies like Merck, Johnson & Johnson, IBM,
Hewlett Packard, General Motors, General Electric, Monsanto Chemical,
and Warner Communications.33 All of these groups sought to place intellectual property rights at the top of the international trade agenda.
26
Mossinghoff, supra note 11, at 598.
27
Id.
28
Id.
29
Susan K. Sell, Multinational Corporations as Agents of Change: The Globalization of Intellectual

Property Rights, in PRIVATE AUTHORITY AND INTERNATIONAL AFFAIRS 169, 18384 (A.C. Cutler
et al. eds., 1999).
30
Mohamed Omar Gad, Impact of Multinational Enterprises on Multilateral Rulemaking: The Pharmaceutical Industry and the TRIPS Uruguay Round Negotiations, 9 L. & BUS. REV. AM. 667, 674
(2003).
31
Id. at 675.
32
Id. at 674 n.32.
33
Michael Perelman, In Patents we Trust, htttp://www.ipfrontline.com/depts/article.asp?id=

6687&deptid=6. Perelman quotes Edmund J. Pratt, Chairman Emeritus of Pfizer, as stating
that:
In 1983, Pfizer joined with other corporations such as Merck, Johnson & Johnson, Bristol-Myers, IBM, Hewlett Packard, General Motors, General Electric, Rockwell Interna-
323
In 1987, a vice president of IBM argued to Congress [that] intellectual property has become a trade problem . . . because . . . [like] other trade
issues . . . nations often put domestic priorities first and only later understand that [such actions] . . . seriously erode their own international trade
interests.34 The IPC noted that inadequate international protection of
intellectual property has become a major cause of distortions in the international trading system . . . and that it is both appropriate and necessary for
intellectual property issues to be dealt with under international trade rules
. . .35 These groups targeted developing countries for special scrutiny.36
Developing countries, led by BRIC nations of India and Brazil, resisted American efforts to link trade and intellectual property rights under
GATT in order to improve intellectual property protections.37 They argued that discussion of intellectual property rights exceeded GATTs original mandate.38 They further responded that developing nations were able
to achieve their current development levels in part because they were not
restricted by intellectual property rules.39 If developing countries accepted
strong intellectual property restrictions, they argued, there would be less
of an opportunity to catch up to more advanced nations and the gap
tional, Du Pont, Monsanto, and Warner Communications to form the Intellectual Property Committee to advocate intellectual property protection. The committee helped
convince U.S. officials that we should take a tough stance on intellectual property issues,
and that led to trade-related intellectual property rights being included on the GATT
agenda when negotiations began in Punta del Este, Uruguay, in 1986.
Id.
34
Dam, supra note 25, at 630.
35
Gad, supra note 30, at 676.
36
For example, the President of the PMA testified before Congress that, [a]ll [developing
countries] have significant deficiencies in intellectual property protection for pharmaceuticals,
the correction of which would substantially improve the market share for U.S. pharmaceutical
companies. Id. at 675. For a useful summary of the PMAs position during this era, see Gerald
J. Mossinghoff, Research-Based Pharmaceutical Companies: The Need for Improved Patent Protection
Worldwide, 2 J. L. & TECH. 307 (1987). Gerald Mossinghoff was the President of the PMA at the
time of the publication of this article. Id. at n.aa1.
37
Gerhart, supra note 24, at 369 n.30.
38
Elizabeth Chien-Hale, Asserting U.S. Intellectual Property Rights in China: Expansion of Extraterritorial Jurisdiction?, 44 J. COPYRIGHT SOCY U.S.A. 198, 226 (1997).
39
Id.
324
between rich and poor would continue to expand.40 The developing

countries considered the World Intellectual Property Organization
(WIPO) to be the appropriate forum.41 Developing countries, which make
up more than half of the WIPO membership, could effectively block any
changes to intellectual property standards.42 With a strong local manufacturing industry of generic drugs and other products, India initially refused
to even discuss the possibility of including patent protection in any GATT
agreement.43 By 1989, most of Indias allies had succumbed to U.S. threats
of trade sanctions. India grudgingly accepted intellectual property rights
improvement as a trade issue44 and allowed it to be placed on the GATT
agenda.45
The subsequent negotiations led to the adoption in 1994 of the
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS).46 This agreement provided broader protections for intellectual
property rights by granting most favored nation treatment for all signatories, establishing minimum terms of protection, imposing significant
40
Id.
41
Lee Petherbridge, Intelligent TRIPS Implementation: A Strategy for Countries on the Cusp of
Development, 25 U. PA. J. INTL ECON. L. 1133, 1135 n.11 (2004).
42
Id.
43
Debate on this issue continued until 1989, three years after the Uruguay GATT Round of
negotiations began. C. ONeal Taylor, Linkage and Rule-Making: Observations on Trade and Investment and Trade and Labor, 19 U. PA. J. INTL ECON. L. 639, 668 n.114 (1998).
44
George K. Foster, Opposing Forces in a Revolution in International Patent Protection: The U.S. and
India in the Uruguay Round and its Aftermath, 3 UCLA J. INTL & FOREIGN AFF. 283, 315 (1998).
45
Id.
46
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, LEGAL INSTRUMENTS
FRESULTS OF THE URUGUAY ROUND vol. 31, 33 I.L.M. 81 (1994). [hereinafter TRIPS]. See also
Donald P. Harris, TRIPS Rebound: An Historical Analysis of How the TRIPS Agreement can Ricochet Back Against the United States, 25 NW. J. INTL L. & BUS. 99 (2004) (discussing TRIPS). The
TRIPS agreement, which implements sweeping protections to intellectual property rights on
a global scale, has been hailed as the most important international law governing intellectual
property rights. Susan K. Sell, What Role for Humanitarian Intellectual Property? The Globalization of Intellectual Property Rights, 6 MINN. J.L. SCI & TECH. 191, 191 (2004). See also XuanThao N. Nguyen, Nationalizing Trademarks: A New International Trademark Jurisprudence?, 39
WAKE FOREST L. REV. 729, 761 (2004) (similar); Martin J. Adelman & Sonia Baldia, Patentable
Inventions: Prospects of Limits of the Patent Provision in the TRIPS Agreement: The Case of India, 29
VAND. J. TRANSNATL L. 507, 512 (1996) (The importance of TRIPS cannot be easily overemphasized.).
325
local enforcement and dispute settlement requirements, and authorizing

trade sanctions against noncompliant nations.47 This landmark agreement48 was due, at least partially, by the concerted effort of U.S.-based
companies.49
At the same time, American multinational interests advocated for additional domestic legislation to coerce developing countries into adopting
more intellectual property protections. U.S. law already had in place
Section 30150 of the Trade Act of 197451 which contains significant measures to ensure trade compliance and fair competition. Section 301 power
arose from Congressional dissatisfaction with the lack of protection U.S.
trade was receiving under the then-current GATT regime.52 Section
301 grants the President broad authority to impose sanctions against a
47
For one of many useful articles summarizing TRIPS see Robert J. Gutowski, Comment, The
Marriage of Intellectual Property and International Trade in the TRIPS Agreement: Strange Bedfellows
or a Match Made in Heaven?, 47 BUFF. L. REV. 713 (1999).
48
One commentator states that TRIPS was without question the grandest event in commercial diplomatic history, Foster, supra note 44, at 283 (citing ERNEST H. PREEG, TRADERS IN A
BRAVE NEW WORLD: THE URUGUAY ROUND AND THE FUTURE OF THE INTERNATIONAL TRADING
SYSTEM xi (1995)).
49
TRIPS would have been unthinkable without the concerted efforts of U.S.-based corporate
executives. Sell, supra note 29, at 170.
50
19 U.S.C. 2411 (2005).
51
The stated purposes of the 1974 Trade Act are:
(1) to foster the economic growth of and full employment in the United States and to
strengthen economic relations between the United States and foreign countries through
open and nondiscriminatory world trade;
(2) to harmonize, reduce, and eliminate barriers to trade on a basis which assures substantially equivalent competitive opportunities for the commerce of the United States;
(3) to establish fairness and equity in international trading relations, including reform of
the General Agreement on Tariffs and Trade;
(4) to provide adequate procedures to safeguard American industry and labor against unfair or injurious import competition, and to assist industries, firm, workers, and communities to adjust to changes in international trade flows;
(5) to open up market opportunities for United States commerce in nonmarket economies;
and
(6) to provide fair and reasonable access to products of less developed countries in the
United States market.
19 U.S.C. 2102 (2005).
52
Kim Newby, The Effectiveness of Special 301 in Creating Long Term Copyright Protection for U.S.
Companies Overseas, 21 SYRACUSE J. INTL L. & COM. 29, 33 (1995). The congressional Senate
Report reviewing the act stated:
326
priority foreign country53 that engages in unfair trade practices.54 Section 301(a) authorizes retaliation against a nation that has breached a trade
agreement with the United States.55 Section 301(b) authorizes retaliation
against a nation that has taken actions which burden[] or restrict[] United
States commerce.56 In response to calls for additional measures, Congress
amended Section 30157 by adding Super 301 and Special 301. Super 30158
requires the United States Trade Representative (USTR) to review U.S.
trade priorities and to determine the foreign country practices that
pose major barriers to U.S. exports.59 Special 301, by contrast, focuses
In addition, the Committee felt that there would be situations, such as in the case of
unreasonable foreign import restrictions where the President ought to be able to act or
threaten to act under section 301, whether or not such action would be entirely consistent with the General Agreement on Tariffs and Trade. Many GATT articles, such as Article I (MFN principle) Article III (taxes affecting imports), Article XII (balance of
payments safeguards), or Article XXIV (regional trade associations) are either inappropriate in todays economic world or are being observed more often in the breach, to the
detriment of the United States. Furthermore, the decision-making process under the
General Agreement often frustrates the ability of the United States (as well as other
contracting parties) to obtain the decisions needed to enable the United States to protect
its rights and benefits under the GATT. . . .
The Committee is not urging that the United States undertake wanton or reckless
retaliatory action under section 301 in total disdain of applicable international agreements. However, the Committee felt it was necessary to make it clear that the President
could act to protect U.S. economic interests whether or not such action was consistent
with the articles of an outmoded international agreement initiated by the Executive 25
years ago and never approved by the Congress.
S. REP. NO. 1298, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7186, 7304.
53
The process of identifying of a priority foreign country is codified at 19 U.S.C. 2242 (2005).
54
See Peter K. Yu, From Pirates to Partners: Protecting Intellectual Property in China in the TwentyFirst Century, 50 AM. U. L. REV. 131, 139 n.37 (2000).
55
19 U.S.C. 2411(a)(1)(A) (2005).
56
19 U.S.C. 2411(a)(1)(B)(ii) (2005).
57
Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. 21012495 (2005).
58
Section 301 has been characterized as probably the most criticized piece of U.S. foreign
trade legislation since the Hawley-Smoot Tariff Act of 1930. Yu, supra note 54, at 139 n.39
(quoting Robert E. Hudec, Thinking About the New Section 301: Beyond Good and Evil, in
AGGRESSIVE UNILATERALISM: AMERICAS 301 TRADE POLICY AND THE WORLD TRADING SYSTEM 49,
113 ( Jagdish Bhagwati & Hugh T. Patrick eds., 1990)).
59
Yu, supra note 54, at 139.
327
specifically on unfair intellectual property rights practices.60 Special 301

requires the USTR61 to identify nations that provide weak intellectual
property protection or deny U.S. intellectual property goods fair or equitable market access.62
The United States has not hesitated to use its newly augmented trade
enforcement powers against the BRIC countries. For example, in 1987
PMA filed a petition with the USTR claiming Brazils denial of patent protection for pharmaceutical products and processes adversely affected its
member companies by harming their patent rights, eroding their Brazilian
investments, threatening their exports to Brazil, and eliminating opportunities for further investment and trade in the Brazilian economy.63 The
PMA estimated past and potential losses for its members in the hundreds
of millions of dollars.64 The petition served as a signal that nations that
failed to provide adequate intellectual property protections to American
exporters would face the new sanctions provided under Special 301.65 As a
result, Brazil was one of the first nations to suffer direct sanctions under
60
Id. at 13940.
61
Newby, supra note 52, at 34. The OTCA removed retaliation and investigation powers from
the President and placed them with the United States Trade Representative.
62
Yu, supra note 54, at 140. The amended trade law also places strict time limits on how long
before the USTR must act against a country that has been cited as an offender against U.S.
trade interests. Jared R. Silverman, Multilateral Resolution Over Unilateral Retaliation: Adjudicating the use of Section 301 Before the WTO, 17 U. PA. J. INTL ECON. L. 233, 246 (1996) (citing 19
U.S.C. 241213 (1988)). Upon such identification, the USTR must initiate an investigation
within thirty days and request a consultation regarding that nations improper practices. Yu,
supra note 54, at 140. If the issue is not resolved to the USTRs satisfaction within six months
for most issues, the USTR is authorized to suspend or withdraw trade benefits and impose
duties or other penalties. Id.
63
64
Id.
65
PMA characterized Brazil as a leader of developing countries whose purpose was to dilute
even the most basic minimum standards provided by the Paris Convention. Id. at 684. Gad
quotes a statement by Gerald J. Mossinghoff, then President of the PMA, as stating:
Brazil is a leader of the so-called G-77 countries effort to reduce the already minimum
standards for patent protection in the Paris Convention. It has also opposed efforts to
include intellectual property protection within the purview of the GATT as a trade-related issue. As a newly industrialized nation, it is time for Brazil, the eighth largest economy in the west, to start playing by the rules of the international trading system.
Statement of Gerald J. Mossinghoff, President, PMA, in BrazilFPharaceutical Patents, USTR
Public Docket No. 30161.
328
Special 301. On October 20, 1988, President Reagan issued proclamation

5885, increasing U.S. import duties on certain Brazilian products by one
hundred percent.66 The PMA commented that [w]e hope the imposition
of this sanction, which is modest in comparison to the revenue losses sustained by our industry in Brazil, will impress upon Brazil the seriousness
with which the United States views the unauthorized appropriation of its
citizens intellectual property.67 The sanctions impacted $200 million in
trade.68 One year later, the Brazilian government announced that it would
seek improved patent protection legislation for pharmaceutical products
and processes.69
Russia was also pressured by the United States to improve its intellectual property regime, albeit on a more limited scale. The USTR placed
Russia on its Watch List in 1995 and then on its Priority Watch List in
1997,70 signifying its noncompliance with intellectual property standards.71 Earlier, the U.S. government encouraged the then Soviet Union
to join the Berne Convention in exchange for preferential trade status.72
After the collapse of the Soviet Union, the Russian government assumed
the responsibilities of the agreement.
The United States pressured India to agree to the negotiation of the
TRIPS agreement through its influence over International Monetary Fund
66
Increase in the Rates of Duty for Certain Articles from Brazil, Proclamation No. 5885, 53
Fed. Reg. 41,551 (Oct. 20, 1988). See also Myles Getlan, TRIPS and the Future of Section 301: A
Comparative Study in Trade Dispute Resolution, 34 COLUM. J. TRANSATL L. 173, 185 (1995).
67
68
Id. at 684.
69
Determination to Terminate Increased Duties on Certain Articles from Brazil, 55 Fed. Reg.
27,324 ( July 2, 1990).
70
See Lianlian Lin, Intellectual Property Protection in China, 27 ACAD. LEGAL STUD. BUS. NATL
PROC. 203, 205 (1998) ([The] USTR prepares a list of countries, ranked from priority foreign
country, a country with the most egregious IPR problems, to priority watch list, and to
watch list, a country that still warrant [sic] monitoring.).
71
Connie Neigel, Piracy in Russia and China: A Different U.S. Reaction, 63 LAW & CONTEMP. PROBS.
179, 188 (2000). See also Tim Kuik, Piracy in Russia: An Epidemic, 20 WHITTIER L. REV. 831
(1999).
72
Neigel, supra note 71, at 185. At the same time, the motion picture industry, lobbied the U.S.
Congress to withhold ratification of the agreement until the Russians improved their copyright laws. Lana C. Fleishman, The Empire Strikes Back: The Influence of the United States Motion
Picture Industry on Russian Copyright Law, 26 CORNELL INTL L.J. 189, 21522 (1993).
329
assistance to the 1989 Indian economic crisis.73 The United States exerted
influence because it had provided India with needed direct grants and was
Indias largest trading partner.74 Based upon the cumulative effect of these
economic factors, India abandoned its opposition to TRIPS in order to
maintain badly needed U.S. funding and trade access.75
Finally, U.S. pressure on China almost resulted in a series of trade
wars. During the 1990s the United States repeatedly threatened to impose
sanctions against China for its failure to protect American intellectual property rights. China would agree to improve and enforce its intellectual property laws and the United States would agree to not impose sanctions.76
Although the United States and the interests that supported it lobbied aggressively to improve intellectual property protections, the result of these
efforts, as the next section will show, were decidedly mixed in nature.
III. COERCION AS AN INEFFECTIVE STRATEGY IN

PROMOTING INTELLECTUAL PROPERTY PROTECTION
IN THE BRIC COUNTRIES
Coercion, in the context of international relations, occurs when a stronger
nation (S) forces a weaker nation (W) to perform actions that serve the
dominant power.77 The typical coercion scenario involves S stating that it
will punish W if it fails to take a certain action. S maximizes its payoff when
W takes the demanded action. Given Ss statement, W also maximizes its
payoff if it takes the demanded action and is not punished, assuming the
cost of the punishment is greater than the benefit of inaction. The optimal
conditions for both W and S are when W complies with Ss demands
and S does not punish the weaker state.78 This occurs not by raising the
73
Foster, supra note 44, at 316.
74
Id. at 317.
75
Id. at 31617. The Indian government relented even though it was subjected to relentless
lobbying from Indian farmers and drug manufacturers to do otherwise. Id. at 30913.
76
See text accompanying notes 14479.
77
Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. CHI. L. REV.
1113, 112324 (1999). This example assumes the cost of punishing the weaker state is negligible.
78
Id. See also Edward T. Swaine, Rational Custom, 52 DUKE L.J. 559, 57678 (2002).
330
equilibrium benefit of W to follow S but by making the alternative of not

performing Ss demanded action more costly.79
As Part II revealed, all four BRIC economies have endured American
governmental pressure to improve their intellectual property regimes.
Brazil faced overwhelming pharmaceutical industry pressure and governmental threats of sanctions from the U.S. to improve its patent protection
for drug products and processes. Brazil gave up its resistance by discussing
intellectual property rights at GATT, joined the TRIPS agreement, and
now possesses a functioning patent approval system that is fairly consistent
with the minimum standards of protection required by TRIPS.80
The Russian government was faced with the choice of improving its
intellectual property laws or losing most favored nation trade status with
the United States. In response, it joined the Berne Convention, enacted
intellectual property laws protecting computer programs, databases, and
integrated circuit topologies,81 and adopted a comprehensive copyright
law.82
India faced the prospect of overwhelming trade penalties and aid
losses if it did not reform its intellectual property policies. In spite of strong
political pressure from farmers and domestic generic drug consumers,83
India acceded to TRIPS. India also passed legislation establishing a mailbox system to receive patent applications, protecting geographic indication
trademarks, and strengthening copyright law.84
Finally, China resisted U.S. efforts to change its domestic piracy practices, even threatening retaliations. A trade war was averted when China
agreed to U.S. demands and halted some of its domestic acts of piracy.
Today, Chinese intellectual property law resembles developed nations
legal codes. Since Chinas accession to TRIPS, it has extended patent
protection from fifteen to twenty years, protected geographic indication
79
Gerhart, supra note 24, at 369.
80
See generally Claudia Schulz, The TRIPS Agreement and Intellectual Property in Brazil, 98 AM.
SOCY INTL PROC. 100 (2004).
81
Neigel, supra note 71, at 186.
82
Id. at 185.
83
Foster, supra note 44, at 30910.
84
Embassy of India Policy Statements, Intellectual Property Rights in India, at http://www.indianembassy.org/policy/ipr/ipr_2000.htm.
331
trademarks, and offered the right of judicial review to administrative

decisions of the Trademark Review and Adjudication Board.85
These changes in BRIC governments intellectual property policies
show that coercive action by the U.S. government has changed the legal
landscape in these nations. All four BRIC countries have developed stronger intellectual property laws as a result of American coercion. Successful
enforcement of these new laws, however, is a different matter altogether.
The IIPA86 has given low marks to the enforcement of intellectual property
protections by BRIC countries. For example, government action in
Brazil is nonexistent against illegal copying of academic books and other
85
See generally Veronica Weinstein & Dennis Fernandez, Recent Developments in Chinas Intellectual Property Laws, 3 CHINESE J. INTL L. 227 (2004).
86
International Intellectual Property Alliance (IIPA) a coalition of private-sector interests

formed to represent copyright-based industries in improving copyright protection on a global
scale. See Description of the IIPA, www.iipa.com/aboutiipa.html. The IIPA also influences the
USTRs Section 301 reviews and, among other activities, participates in discussions with the
World Intellectual Property Organization (WIPO) regarding intellectual property rights. Most
importantly for purposes of this paper, the IIPA tracks intellectual property regimes and enforcement in over eighty countries around the world. The IIPAs annual country reports are
useful in understanding the global enforcement of intellectual property rights. Although the
IIPA focuses primarily on copyright piracy, their reports offer a uniquely detailed commentary that is instructive on the level of intellectual property protection in the BRIC economies.
Trademark infringement, for example, is widespread in all four BRICs. One 1995 study examining the trademark protection losses in the footwear and apparel industry estimated the
percentage of lost sales to trademark piracy was 26%, 28%, 28%, and 26% for Brazil, Russia,
India, and China, respectively. See The Economic Impact of Trademark Infringement: Estimation of the Impact of Trademark Counterfeiting and Infringement on Worldwide Sales of
Apparel and Footwear 1314, at http://http://www.inta.org/downloads/tap_economicim
pact1998.pdf. In China, stage agencies report 51,851 prosecuted trademark cases in China
in 2004, a 27% increase in such cases from the prior year. E.g., Trademark Infringement Cases on
the Rise in 2004, 32 P.R.C. BUS. REV. 62, 62 (May/June 2005). Chinese agencies confiscated and
destroyed tons of illegally trademarked material and issued fines totaling $32.4 million. Id.
Yet, the USTR has expressed concern that foreign trademark owners do not appear to be
receiving national treatment with regard to their well-known marks. See USTR 2003 Special
301 Report 10, at http://www.ustr.gov/assets/Document_Library/Reports_Publications/2003/
2003_Special_301_Report/asset_upload_file665_6124.pdf. Brazils National Institute of
Industrial Property has increased its enforcement efforts to stop trademark piracy. Brazil:
Licensing and Intellectual Property, EIV ViewsWire New York, Sep. 1, 2004 (calling trademark
piracy in Brazil a problem and noting weaknesses in Brazilian trademark law). See generally
James K. Glassman, Get Tough With Axis of Evil Job Stealers, Det. News, Apr. 12, 2005, at http://
lists.essential.org/pipermail/ip-health/2005-April/007764.html (referring to James Pinkertons
classification of Brazil, India, and China as the IP Axis of Evil due to widespread violation of
U.S. intellectual property rights).
332
materials.87 Piracy of copyrighted recordings constitutes over half of all

compact disc sales in Brazil.88 Seventy-four percent of all video games sold
in Brazil are pirated.89 While civil actions are being pursued against some
pirates,90 these actions are ineffective because Brazilian disputes take years
to be adjudicated91 and light penalties fail to provide much deterrence.92
Brazilian copyright piracy caused $931.9 million in trade losses in 2004.93
Russian copyright piracy remains one of the most serious of any
country in the world.94 Russia is now one of the largest producers and
distributors of illegal optical media material.95 The majority of audio and
compact disks sold in Russia are pirated copies.96 Crime syndicates thrive
off of the sales of illegal products.97 Enforcement of Russian intellectual
property laws is anemic at best.98 Russian authorities do not conduct surprise inspections, do not seize and confiscate equipment, and rarely repeal
issuances of inappropriate licenses.99 Jail sentences for piracy are rare.100
Russian copyright piracy exceeded $1.7 billion in 2004.101
87
International Intellectual Property Alliance, 2005 Special 301 Report: Brazil 51, 56 (2005) available at http://www.iipa.com/rbc/2005/2005SPEC301BRAZIL.pdf [hereinafter Brazil IIPA Report].
88
Id. at 54.
89
Id. at 55.
90
Organized crime in Brazil participates heavily in and benefits significantly from pirating
activities. Id. at 5758.
91
Id. at 55.
92
Id. at 6162.
93
Id. at 53.
94
International Intellectual Property Alliance, 2005 Special 301 Report: Russian Federation
13, 13 (2005) available at http://www.iipa.com/rbc/2005/2005SPEC301RUSSIA.pdf [hereinafter Russia IIPA Report].
95
Id. at 13.
96
Id. at 21.
97
Id. at 2021.
98
Id. at 22.
99
Id. at 17.
100
Id. at 21.
101
Id. at 13.
333
India, like Russia and Brazil, suffers from both high piracy rates and
a weak enforcement system.102 Legitimate recording industries report
rapidly declining sales of products.103 Eighty-six percent of entertainment
software sold is pirated.104 Illegal booksellers operate openly in market
bazaars with no threat from law enforcement.105 While criminal cases have
been commenced, they proceed at a glacial pace through Indian courts.106
The IIPA has not been able to discern more than 15 criminal convictions
for copyright piracy in 15 years.107 When enforcement does occur, small
fines and short jail terms are common.108 Almost $500 million in trade
losses are attributed to copyright piracy in India in 2004.109
The sheer volume of copyright and trademark piracy in China is
staggering. Piracy levels are at ninety percent across all copyright sectors.110 At least eighty-three manufacturing plants operate in China with
765 production lines that specialize in the manufacture of pirated
goods.111 Although the Supreme Judicial Court of China has recently issued new interpretations of the Chinese Criminal law, it is questionable
whether these new interpretations will make any practical difference in
reducing piracy.112 Chinese copyright piracy amounts to a $2.5 billon
industry in 2004.113
102
International Intellectual Property Alliance, 2005 Special 301 Report: Russia 121,
121(2005), available at http://www.iipa.com/rbc/2005/2005SPEC301India.pdf [hereinafter
India IIPA Report].
103
Id. at 126.
104
Id.
105
Id. at 123.
106
Id. at 128.
107
Id. at 127.
108
Id. at 128.
109
Id. at 123.
110
International Intellectual Property Alliance, 2005 Special 301 Report: China 183, 183,
(2005), available at http://www.iipa.com/rbc/2005/2005SPEC301PRCrev.pdf [hereinafter
China IIPA Report].
111
Id. at 187.
112
Id. at 204.
113
Id. at 186.
334
In sum, despite some good faith government enforcement efforts,114

piracy remains rampant and increasingly prevalent in all four BRIC
countries. The next section will analyze the limitations of coercion as a
tool for meaningful improvement in international intellectual property
protection.
A. The Limitations of Coercion in International Economic Relations
American threats of trade sanctions against the BRIC countries resulted in
significant changes to domestic and international laws. Coercion placed
intellectual property on the GATT agenda in spite of fierce resistance from
developing countries. Threats of a trade war encouraged China to enact
more stringent copyright laws and close pirating factories. Russia improved its copyright laws under threat from the United States to withhold
ratification of a trade agreement granting Russia preferential trade status.
Economic pressure forced India to accede to the intellectual property
standards of TRIPS. American economic threats pressured Brazil to agree
to protect U.S. pharmaceutical products and processes at the expense of
local producers. Coercion, therefore, can accomplish change in global
intellectual property standards.
Coercion as a dominant long-term strategy, however, cannot eliminate intellectual property infringement. Illegal reproduction of protected
goods and works in the BRIC economies remains commonplace. The expansion of broadband networks and access to technology by BRIC citizens
will only increase the opportunity for pirated products to spread. The demand for illicitly manufactured pharmaceuticals and other patented products remains strong. Although some laws are in place, enforcement
remains lax. Coercion as a dominant U.S. political strategy has failed to
114
According to the IIPA, Brazilian, Russian, Indian, and Chinese officials have all engaged in
at least some efforts to curb piracy. For example, authorities in Brazil arrested notorious piracy leader Law Kim Chong and seized millions of blank optical media. Brazil IIPA Report,
supra note 87, at 5758. Brazilian authorities alleged that Chong attempted to bribe the
Chairman of Brazils Congressional Anti-Piracy Committee. Id. at 57. Brazilian and Indian
authorities have raided large plants specializing in piracy of optical media. Russia IIPA Report,
supra note 94, at 17; India IIPA Report, supra note 102, at 127. The Chinese government is
making headway in reducing print journal piracy and bringing successful civil cases under
recent Copyright Act amendments. China IIPA Report, supra note 110, at 193, 202. Russian
authorities conducted a series of raids against optical disc plants and seized illegal materials.
Russia IIPA Report, supra note 94, at 1718.
335
significantly curb global intellectual property piracy.115 In fact, evidence

demonstrates that unilateral economic sanctions by the United States
regularly achieve their stated long-term policy objectives.116 One author
who studied twenty international crises between 1905 and 1971 concluded
that if our results suggest anything, it is that an assertive, bullying, strategy is both less effective and more risky than much of the folklore of power
policies would have it.117
There are six reasons why coercive tactics against foreign states fail to
achieve their long-term policy objectives and potentially harm U.S. interests. The first and probably the most obvious reason that coercion fails is
because it provokes retaliation by the targeted state.118 For example, when
the United States threatened to impose sanctions against China because of
its lack of protection for intellectual property, China responded by transferring an airplane purchase order worth $1.5 billion from a United States
company to a European competitor.119 China and the United States have
participated in a continuous cycle of threats of sanctions, followed by negotiations, and resolutions.120 China has proved that it is willing to threaten countersanctions when it feels its sovereignty or national dignity
has been threatened by American demands for increased intellectual property enforcement.121
Second, economic sanctions that benefit one U.S. industry can cause
damage to another unrelated U.S. industry. For example, drug companies
in the 1980s cited Brazil for its failure to provide intellectual property
115
E.g., Yu, supra note 54, at 172 (discussing China and concluding that [a]part from the
lukewarm responses it was able to elicit, the coercive American foreign intellectual
property policy failed to create any sustainable and continuous protection for American
products.).
116
Justin D. Stalls, Economic Sanctions, 11 U. MIAMI INTL & COMP. L. REV. 115, 148 (2003) (citing
various sources and concluding that, [n]early all scholarly analyses conclude that economic
sanctions are generally unsuccessful.).
117
Russell J. Leng & Hugh G. Wheeler, Influence Strategies, Success, and War, 23 J. CONFLICT
RESOL. 655, 681 (1979).
118
Yu, supra note 54, at 16667 (citing ADAM SMITH, THE WEALTH OF NATIONS bk. I, ch. 8, at 434
(Edwin Cannan ed., 1937) (1776)).
119
Id. at 168.
120
121
336
rights for patents in the pharmaceutical sector.122 After continued negotiations between Brazilian and U.S. representatives proved unfruitful, the
United States imposed economic sanctions against numerous Brazilian
products, including paper products, pharmaceuticals, chemicals, microwave ovens, television cameras, telephone answering machines, tape
recorders, moccasins, pistols, and jewelry.123 Once the government announced the trade sanctions, General Electric protested the tariffs against
imported electrical breakers, Xerox opposed the inclusion of copy paper,
Dow Chemical objected to the tariffs on carbon tetrachloride, Ford Motor
called for the removal of amplifiers and windshield wipers, and Carrier
sought the removal of air conditioners from the tariffs target list.124 Each of
these companies claimed that the sanctions harmed their economic interests because they relied on the importation of the targeted products to
satisfy consumer needs.125
Third, economic coercion isolates the coercive country from its trading partners.126 Trading partners who witness American coercion applied
against another country will naturally reflect on when such sanctions
will be applied against them.127 As a result, noncoerced trading partners
will be less likely to trust the United States to maintain harmonious
122
Getlan, supra note 66, at 185.
123
Id. at 188.
124
Christopher Scott Harrison, Comment, Protection of Pharmaceuticals as a Foreign Policy: The

Canada-U.S. Trade Agreement and Bill C-22 Versus the North American Free Trade Agreement, 26
N.C. J. INTL L. & COM. REG. 457, 484 n.144 (2001). See also Getlan, supra note 66, at 189 n.90;
Administration Opens Hearings on Proposed Sanctions in Brazilian Pharmaceuticals Case, 5 INTL
TRADE REP. (BNA) 1247, 1247 (1988).
125
Harrison, supra note 124, at 484 n.144. See also Sanctions Hurt U.S. Hong Kong Firms More
than China, Executives Say, 9 INTL TRADE REP. 56, 5657 (1992) (noting that manufacturers and
importers of appliances, electronic goods, magnets, and antibiotics objected to the use of punitive tariffs as a means of punishing China because the decreases in sales as a result of higher
prices would lead to the loss of 39,000 jobs.).
126
Peter K. Yu, Toward a Nonzero-Sum Approach to Resolving Global Intellectual Property Disputes:
What we can Learn from Mediators, Business Strategists, and International Relations Theorists, 70 U.
CIN. L. REV. 569, 579 (2002).
127
David Hartridge & Arvind Subramanian, Intellectual Property Rights: The Issues in GATT, 22
VAND. J. TRANSNATL L. 893, 909 (1989) (It is indeed hard to see why many states should
accept new multilateral commitments in [the intellectual property] area if they remain vulnerable to unilateral actions.).
337
relationships.128 Liberal use of coercive sanctions in the past will make forging trade agreements with future partners more difficult, thereby decreasing the competitiveness of U.S. firms relative to their foreign competition.
Fourth, sanctions help mobilize resistance against and generate hostility toward the sanctioning state. For example, in 1996, Congress passed
the controversial Cuban Liberty and Democratic Solidarity Act of 1996,
popularly known as the Helms-Burton Act, which punished foreign nationals and foreign companies that do business with Cuba.129 While the Act
was intended to destabilize the Cuban government, the act actually weakened internal opposition to Fidel Castros regime. According to a United
Nations report, Helms-Burton strengthened support for Castro in Cuba
because the Act gave the appearance that outsiders, rather than
Cubans, would decide the nations future.130 The legislatures of the
European Union, Mexico, and Canada passed retaliatory legislation
banning companies operating in their countries from obeying the
Helms-Burton Act.131
In 1992 the United States successfully pressured the International
Whaling Commission to send back for further study a scientific report that
recommended the reinstitution of limited commercial whaling based upon
the presence of large and increasing whale stocks.132 The effect was to
extend the moratorium on commercial whaling for another year.133 In
response, commercial whaling nations aggressively reasserted their rights
128
David T. Shapiro, Note, Be Careful What You Wish for: U.S. Politics and the Future of the National
Security Exception to the GATT, 31 GEO. WASH. J. INTL L. & ECON. 97, 114 (1997) (Unilateral
sanctions also hurt U.S. interests by undermining the stability of the international trading
system upon which businesses rely. Foreign countries or companies contemplating a longterm commercial relationship with a U.S. exporter must consider the possibility that U.S.
foreign policy considerations may interfere.).
129
22 U.S.C. 60216091 (2005). See also Shapiro, supra note 128, at 99.
130
Shapiro, supra note 128, at 114 (citing U.S. Anti-Cuba Law Seen Sapping Domestic Political
Opposition, AGENCE FRANCE-PRESSE, Mar. 13, 1997, available at 1997 WL 2076602).
131
Digna B. French, Economic Sanctions Imposed by the United States Against Cuba: The Thirty-Nine
Year Old Embargo Culminating with the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of
1996, 7 U. MIAMI INTL & COMP. L. REV. 1, 13 (1999).
132
ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERREGULATORY AGREEMENTS 10102 (1995).
NATIONAL
133
Id. See generally Alma Soongi Beck, Comment, The Makahs Decision to Reinstate Whaling:
When Conservationists Clash with Native Americans Over an Ancient Hunting Tradition, 11 J. ENVTL
L. & LITIG. 59, 384 (1996).
338
to whaling regardless of international protocols.134 Ireland withdrew its

membership from the International Convention to Regulate Whaling.135
Norway resumed whaling in 1993.136 Russia and Japan indicated that they
would consider reintroducing whaling practices in the future.137 Iceland
called a meeting of pro-whaling states with the intention of forming an
entirely new whaling regime.138 The possibility arose that widespread unregulated whaling might again be performed on the open seas, a practice
that has not occurred since 1960.139 The coercive efforts of the United
States resulted in the remobilization of an interest group dedicated to opposing U.S. intervention. U.S. sanctions fed the sense of grievance that
has led the minority to take drastic action.140 A Norwegian foreign minister commented that [i]t would be intolerable if a small country were to
be pressured into submission by big countries who only wish to pay environmental penance in currency of negligible value to them.141
Fifth, coercive trade sanctions can devastate the economies of developing countries. Developing countries resent sanctions or the threat of
sanctions by the United States as a brand of economic colonialism. The use
of coercive tactics by the United States serves to signal to newly developing
democracies that coercive economic power is not only acceptable but a preferred method of international trade policy. Instead, the United States as a
leading economic power should serve as a role model for emerging nations.
Finally, and perhaps most importantly, coercive tactics fail to address
the underlying causes of rampant intellectual property piracy in developing countries. Coercive sanctions do not address, but rather may exacerbate, the poverty and unemployment in developing countries that makes
the production of pirated goods and the purchase of illegal patented drugs
134
CHAYES & CHAYES, supra note 132, at 102.
135
Id.
136
Id.; Beck, supra note 133, at 384.
137
CHAYES & CHAYES, supra note 132, at 102.
138
Id.
139
Id.
140
Id.
141
Id. (quoting J.J. Holst, foreign minister of Norway, Norwegian Information Service, Noriform
Weekly Edition, no. 26 (Aug. 31, 1993)). See also Norway Stands Firm on Whaling Issue, Noriform
Weekly Edition, available at http://www.norwaves.com/norwaves/Volume1_1993/v1nw16.html.
339
so tempting.142 No matter how coercive sanctions may be, strong incentives still remain in place to sell and purchase pirated goods.143
B. Responses to U.S. Coercion: China and India
Coercive efforts to change a foreign nations behavior can provoke a variety of reactions ranging from immediate compliance to a threat of a trade
war. This section focuses on two of the four BRIC countries, China and
India, and their respective responses to U.S. pressure to protect intellectual property rights. China and India reacted quite differently to threats of
U.S. sanctions. However, both reactions resulted in little improvement of
intellectual property rights for U.S. firms. These experiences can provide a
baseline for altering U.S. strategy to improve protection of intellectual
property rights abroad.
1. The Retaliation Cycle: The Chinese Reaction to U.S. Coercion
One of the most prominent examples of the limitations of coercive trade
policies involves Chinas relationship with the United States. In 1979, both
countries agreed that each nation would treat the others patent and trademark protection the same.144 However, China implemented its new trademark and patent laws within the context of socialist principles of public
ownership, the effect being that few private individuals managed to obtain
work-related patents in their own names.145 Eventually, the United States
lost patience and sought proactive responses to Chinas lack of enforcement. In 1988, the U.S. Congress augmented the Trade Act of 1974 by
giving expanded powers to the USTR and imposing strict deadlines on
investigation and action against foreign unfair trade practices.146 The
142
See, e.g., Winston P. Nagan, International Intellectual Property, Access to Health Care, and Human
Rights: South Africa v. United States, 14 FLA. J. INTL L. 155, 15859 (2002).
143
Lin, supra note 70, at 209 (citing an author of China Business Review who states copying is
not considered to be morally wrong in China because it has traditionally been a legitimate way
to learn and share knowledge.).
144
Agreement on Trade Relations Between the United States of America and the Peoples
Republic of China of 1979, July 7, 1979, P.R.C.-U.S., 31 U.S.T. 4652.
145
146
See supra note 62.
340
USTR placed China on its Priority Watch List pursuant to these powers the
following year.147
In response to the USTRs action, China enacted new intellectual
property laws. Nonetheless, American businesses increasingly complained
that their intellectual property rights remained unprotected and that piracy was widespread. In 1991, China was designated as a Priority Foreign
Country and the USTR launched an investigation into Chinas intellectual
property protection practices.148 As a result, the United States threatened
to impose tariffs on Chinese textiles, shoes, electronics, and pharmaceuticals worth $1.5 billion.149 This time the Chinese chose to retaliate. China
responded with tariffs worth a similar amount on American aircraft, cotton, corn, steel, and chemicals.150 After six rounds of negotiations,151 Chinese and American representatives managed to reach a compromise just
before the sanctions would have been implemented.152 The parties signed
a Memorandum of Understanding on January 17, 1992 (1992 MOU) and
narrowly averted what would have been a costly trade war.153
As a result of the 1992 MOU China significantly improved its intellectual property laws. Pursuant to the terms of the MOU, China joined the
Berne Convention in 1992 and the Geneva Convention in 1993.154 Pursuant to these conventions, China amended its copyright law and issued
implementing regulations.155 The new laws protected software programs
for fifty years, removed formalities on copyright protection, and extended
147
148
Id. at 14142.
149
Id. at 142.
150
Id.
151
Paul C.B. Liu, U.S. Industrys Influence on Intellectual Property Negotiations and Special 301
Actionss, 13 UCLA PAC. BASIN L.J. 87, 112 (1994).
152
153
Id.; Liu, supra note 151, at 112.
154
Warren Newberry, Note, Copyright Reform in China: A TRIPS Much Shorter and Less Strange
than Imagined?, 35 CONN. L. REV. 1425, 1439 (2003) (citing Memorandum of Understanding
Between the Government of the Peoples Republic of China (PRC) and the Government of the
United States of America on the Protection of Intellectual Property, Jan. 17, 1992, P.R.C.-U.S.,
34 I.L.M. 677 at art. 3(1) and 3(2)).
155
341
the protections to all works originating from a Berne Convention country.156 China also amended its 1984 Patent Law, implemented patent regulations, and agreed to the terms of the Patent Cooperation Treaty.157 In
1993, China upgraded its trademark law to include criminal penalties and
adopted a new unfair competition law protecting trade secrets.158 China
established specialized intellectual property courts to hear cases and its
Supreme Court issued a circular instructing lower courts to address intellectual property cases expeditiously.159 By any measure of the time, the
1992 MOU was as an enormous success for the United States. Within the
three-year period from the adoption of the 1992 MOU China improved its
intellectual property protections on all fronts.
It soon became clear, however, that China was not effectively enforcing
the new laws.160 American businesses complained again about the lack of
intellectual property protection.161 In fact, China allowed the rapid growth of
the exportation of pirated products.162 The USTR again placed China on its
Priority Foreign Country list and launched an investigation.163 On June 30,
1994, the USTR designated China as a priority foreign country pursuant to
its Special 301 powers.164 The Clinton Administration threatened to impose
tariffs against $1 billion worth of Chinese imports.165 China quickly retaliated
by threatening tariffs against various American-made products and suspended joint venture negotiations with U.S. automobile companies.166 Again at
the eleventh hour, U.S. and Chinese negotiators reached a compromise.
156
Id. at 143.
157
Id. at 142.
158
Id. at 143; Newberry, supra note 154, at 1440.
159
Lin, supra note 70, at 205.
160
Charles Tiefer, Sino 301: How Congress Can Effectively Review Relations with China After WTO
Accession, 34 CORNELL INTL L.J. 55, 64 (2001).
161
Yu, supra note 54, at 143 (citing Patrick H. Hu, Mickey Mouse in China: Legal and Cultural
Implications in Protecting U.S. Copyrights, 14 B.U. INTL L.J. 81, 93 (1996)).
162
Gregory S. Feder, Enforcement of Intellectual Property Rights in China: You Can Lead a Horse to
Water, But You Cant Make it Drink, 37 VA. J. INTL L. 223, 24142 (1996).
163
164
165
166
Id.
342
The new agreement established an enhanced copyright verification

system, intensified border protection, and imposed training and education
requirements for enforcement authorities.167 In exchange, the United States
promised to terminate its section 301 investigation of China, to remove its
Priority Foreign Country designation, and to rescind the order imposing
retaliatory tariffs.168 An accompanying action plan offered detailed instructions on executing the letters commands.169 Within the first few
months, China conducted massive raids against intellectual property infringers throughout China.170 Deputy U.S. Trade Representative Charlene
Barshefsky called the implementation of the agreement very promising.171
However, by the end of 1995, it became clear that the agreement was not
producing the intended results.172 Representatives of software, motion picture, and record companies again argued that China had done little to curb
the massive production and export of pirated products.173 On April 30,
1996, China was again designated a Priority Foreign Country.174 Both countries threatened sanctions.175 A compromise on June 17, 1996 resulted in the
United States dropping China from its Special 301 list in exchange for Chinas promises of improved enforcement of intellectual property rights.176
167
Peter K. Yu, The Copyright Divide, 25 CARDOZO L. REV. 331, 35960 (2003).
168
Yu, supra note 54, at 146. Commentators praised the agreement, one lauding it as the
single most comprehensive and detailed [intellectual property] enforcement agreement the
United States had ever concluded. Id. at 148 (quoting Helen Cooper & Kathy Chen, China
Averts Trade War with the U.S., Promising a Campaign Against PiracyFAccord also Opens Market to
U.S. Movies, Music and Computer Software, WALL ST. J., Feb. 27, 1995, at A3).
169
Id. at 14647.
170
Feder, supra note 162, at 245.
171
Id. at 245 n.138.
172
173
Anne Phelan, China Urged to Meet IPR Obligations, 17 E. ASIAN EXEC. REP. 5, 5 (1995). For
example, when Microsoft created a Chinese version of Windows 95 with a planned retail price
of $45, the product was already available in open markets one week before its release. Id. at
14849.
174
175
The Clinton administration announced planned sanctions against $2 billion in trade goods.
Id. at 14849. Within thirty minutes of the announcement, China responded with its own
retaliatory sanctions on American products of equal value. Id. at 149.
176
343
From the above history of U.S.China relations, a cycle of behavior

becomes evident. The cycle begins with complaints by private American
interests, resulting in threats by the U.S. government, followed by counterthreats by the Chinese government, eventual compromise and agreement, and ending with the subsequent lack of full implementation of the
agreement resulting in the commencement of a new cycle of behavior.177
The cycle is summarized in Exhibit 1.
This cycle, nonproductive as it may appear, has actually produced
some positive, mostly short-term, results. China has improved its legal
framework and has shut down some producers of pirated music.178
Chinese piracy, however, still remains rampant.179 In sum, the China
Cycle of Coercion has not produced the wanted long-term objectives of
U.S. policy.
2. The Delay Cycle: The Indian Reaction to U.S. Coercion
India has responded differently than China to U.S. pressure. Instead of
threatening American interests, India simply progresses toward compliance at the slowest pace possible that avoids sanctions. For example, during
the GATT Uruguay Round, India was a leading opponent of making intellectual property a trade issue and was opposed to the development of
the TRIPS regime.180 As TRIPS became a reality, India pursued the goals
of meeting the TRIPS requirements at a glacial pace.181 Article 70.8(a)
177
This cycle has been adapted from Yu, supra note 54, at 13435.
178
179
See supra text accompanying notes 11013.
180
Elaine B. Gin, International Copyright Law: Beyond the WIPO and TRIPS Debate, 86 J. PAT. &
TRADEMARK OFF. SOCY 763, 781 (2004) (Particularly the Group of Ten (G-10) developing
countries (Argentina, Brazil, Cuba, Egypt, India, Nicaragua, Nigeria, Peru, Tanzania, and
Yugoslavia) vehemently opposed placing IP on the agenda of the Uruguay Rounds.).
181
Even after 1995 Indian representatives still resisted the implementation of TRIPS. In November 1996, Indian lawmakers organized a conference to discuss intellectual property rights
enforcement under TRIPS. N. Vasuki Rao, Anti-piracy Conference Turns, Instead, Anti-U.S., J.
COMMERCE, Nov. 15, 1996, at 5A. The conference, organized by Indian anti-TRIPS lawmakers,
quickly devolved into a bashing of the United States and an organizing of efforts to resist U.S.
action on intellectual property. Id. When one Indian representative suggested that countries
refuse to implement the TRIPS agreement until the United States repeals the Omnibus Trade
and Competitiveness Act of 1998, it received significant support. Id.
3. Target country retaliates with

counter sanctions
4. U.S.and target nation reach

compromise, often at the last minute
Exhibit 1: The China Cycle of Coercion
2. United States government

threatens trade sanctions
5. Piracy levels temporarily decline,

then rise again as both U.S. and
target government attention focuses
elsewhere
1. American executives complain

about IP infringement and demand
U.S. government coercive sanctions
344
345
of TRIPS182 required that India amend its patent law to allow its patent
office to accept submissions for pharmaceutical and agricultural chemical
product inventions183 as required by TRIPS. Unfortunately due to a
procedural mishandling of the TRIPS enabling legislation by the Indian Parliament, the amendment was not adopted at the time the patent
office began receiving pharmaceutical and agricultural product patent applications from foreign interests.184
The United States grew impatient with Indian delays in enacting the
required enabling legislation and placed India on its list of priority watch
countries, opened an investigation into Indias failure to protect pharmaceutical and agricultural chemical product patents as required by TRIPS,
and sought consultation with the WTO.185 The U.S. requested that the
dispute settlement body determine whether India had failed to satisfy its
obligations under TRIPS.186 The WTO Dispute Settlement Body concluded that India was in a state of noncompliance by not amending its patent
legislation.187 India appealed, and the Appellate Body upheld the Boards
findings and conclusions.188 The decision was formally adopted by the
WTO Dispute Settlement Body in January 1998 with a March 2, 1998
deadline for India to amend its patent legislation.
182
See Report of the Panel, India-Patent Protection for Pharmaceutical and Agricultural
Chemical Products, Sep. 5, 1997, WT/DS50/R (1997), at para. 2.3 [hereinafter Panel Report].
183
David K. Tomar, Note, A Look Into the WTO Pharmaceutical Patent Dispute between the United
States and India, 17 WIS. INTL L.J. 579, 585 (1999).
184
On December 31, 1994, the President of India promulgated a patents ordinance that
amended Indias Patents Act of 1970. However, Indian ordinances have the force of law provided that both houses approve of the ordinance within six weeks after the beginning of a new
house of parliament. Srividhya Ragavan, Cant We All Get Along? The Case for a Workable Patent
Model, 35 ARIZ. ST. L.J. 117, 143 (2003). The president was able to promulgate these changes
because Article 123 of the Indian Constitution enables the president to legislate when one or
both houses in parliament are not in session and the president is satisfied that circumstances
exist which render it necessary for him to take immediate action. The previous year the
Indian parliament had debated making the amendments that TRIPS required but adjourned
without reaching the conclusion. Tomar, supra note 183, at 585. This is probably what led the
Indian president to act according to his emergency powers. Id.
185
Id.
186
Ragavan, supra note 184, at 144.

Id. at 145. See also Panel Report, supra note 182, at z 8.1.
187
188
See Report of the Appellate Body, India-Patent Protection for Pharmaceutical and Agricultural Chemical Products, Dec. 19, 1997, WT/DS50/AB/R (1997).
346
The March 1998 deadline passed without compliance.189 The United

States agreed to extend this deadline three times in order to work out a
compromise on how to implement Indian patent legislation.190 In April
1998, the two parties informed the dispute settlement body that they had
finally agreed upon a timetable for compliance giving India until April 19,
1999 to implement legislation.191 A temporary emergency measure was
passed by the Indian Parliament in March 1999 in an attempt to comply
with TRIPS.192 Meanwhile, the backlog of unprocessed patent applications
exceeded 30,000.193
On February 21, 2000, U.S. pharmaceutical representatives requested that the USTR place India on the Priority Foreign Country list because
of Indias refusal to adopt adequate and effective protection for pharmaceutical products and . . . their denial of equitable market access to U.S.
firms.194 India, again under pressure from the United States, introduced
the Patents Amendment Bill 1999 in the upper house on December 20,
1999 to have Indian patent law comply with TRIPS.195 The bill did not
pass but it was referred to a committee for further review.196 In 2002, a
revised bill was drafted to incorporate developing-country-favorable safeguards, which allows nations to initiate compulsory licensing of patented
drugs in a national emergency.197 This revised bill, however, did not incorporate the products patent regime that Article 27 of TRIPS required.198
189
Tomar, supra note 183, at 589.
190
Id.
191
Id.
192
Ronald J.T. Corbett, Protecting and Enforcing Intellectual Property Rights in Developing Countries, 35 INTL LAW. 1083, 1097 (2001).
193
Id.
194
Press Release, PhRMA, PhRMA Calls for Vigillance [sic] on Intellectual Property Protection;
Recommends Argentina, Egypt and India as Priority Foreign Countries, at http://www.pharma.org/
mediaroom/press/releases///21.02.2000.20.cfm (Feb. 21, 2000).
195
Ragavan, supra note 184, at 146.
196
Id. at 148.
197
Id. at 148 & n.312.
198
Id. at 148. Article 27 of TRIPS requires signatories to offer patent protection for any invention without discrimination as to the field of technology. Bryan Mecurio, The Impact of the
Australia-United States Free Trade Agreement on the Provision of Health Services in Australia, 26
347
On March 23, 2005, India finally passed into law.199 the required product
patents regime for pharmaceutical, agricultural, and software products.200
Yet even the adoption of the law failed to resolve all the outstanding
issues regarding TRIPS implementation. The law failed to resolve critical
issues of data exclusivity for product patents and compulsory licensing
of pharmaceuticals.201 Indias sluggish efforts to improve intellectual
property rights have successfully allowed India to stave off full implementation of TRIPS and its stringent intellectual property standards. The
India Cycle of Coercion (see Exhbit 2) is characterized by prolonged,
graduated responses to U.S. coercive tactics. When India finally does respond, it usually completes the bare minimum necessary to avoid economic
sanctions. The result is a frustratingly slow effort, at least from the perspective of the United States, in the improvement of intellectual property
protections.
Why does India react so differently than China to U.S. coercion? The
answer lies at least in part with the unique nature of Indias economy and
history. Twenty-five years ago, Indian and Chinese citizens possessed similar per capita incomes.202 Today, Chinese incomes are nearly double that
of their Indian counterparts.203 While China has embraced globalization
and international trade, Indian economic reforms have been slower to
take hold. A 1999 study compared Chinese and Indian practices toward
trade in various areas such as agriculture, information technology, and
WHITTIER L. REV. 1051, 1094 (2005); Harris, supra note 46, at 106. For example, developing
countries cannot treat patents protecting food, agriculture, medicines, and software differently than other patentable inventions. Id. This includes whether the patents are for products
or processes. Id.
199
Phrma Welcomes Passage of Patent Bill in India, (Mar. 23, 2005), available at http://www.
phrma.org/news_room/press_releases/phrma_welcomes_passage_of_patent_bill_in_india/.
200
Patents Bill: Govt takes Left on board, Business Standard, Mar. 19, 2005, at 1 (available at 2005
WLNR 4249411).
201
Patently Unclear: A Crucial New Intellectual Property Regime Disappoints, THE ECONOMIST, Jan.
22, 2005, 63.
202
A.V. Rajwade, India and China: A Comparison, Jan. 18, 2005, at http://www.rediff.com/money/
2005/jan/18guest.htm. See generally Subramanian Swamy, The Economic Distance Between India
and China, 195573, 70 CHINA Q. 371 (1977).
203
Id.
Exhibit 2: The India Cycle of Coercion
4. United States demands increased

results; moves to impose sanctions
5. Target country improves regime

the minimum amount necessary to
stave off U.S. punitive measures
1. American executives complain

about IP infringement and demand
U.S. government coercive sanctions
3. Target country moves as slow as

possible toward complying with U.S.
demands
2. United States government

threatens trade sanctions
348
349
services.204 The study found China possessing equal or superior open

market regulations to India in all eight categories studied.205
Whereas Chinese infrastructure improvements backed by foreign
agreements move speedily along once government approval has been given, litigation and political debate have significantly slowed equivalent improvements in India.206 India may lose foreign direct investment as a
result.207 India lacks a Chinese equivalent of a Hong Kong that can efficiently finance commercial activity throughout the country.208 As a result,
India lacks the bargaining power that China possesses to negotiate from a
position of strength with the United States.209
The delay cycle of coercion, however, has worked with a degree of
success for India. India even today has still not fully complied with TRIPS
and U.S. governmental and private interests continue to apply pressure in
order to achieve additional progress in this area. The Indian response
tactics to U.S. coercion provides a model for other developing countries,
such as Brazil and Russia, that do not possess sufficient strength to respond
directly to U.S. threats with countersanctions. The lesson from the India
Cycle of Coercion is not that U.S. coercion is not strong enough, but rather
that coercion alone cannot produce a successful long-term result of protecting intellectual property rights internationally.
204
Daniel H. Rosen, China and the World Trade Organization: An Economic Balance Sheet, Institute
for International Economics Policy Brief 99-6, available at http://www.iie.com/publications/pb/
pb.cfm?ResearchID=93.
205
Id.
206
Danielle Mazzini, Stable International Contracts in Emerging Markets: An Endangered Species?,

15 B.U. INTL L.J. 343, 359 (1997). See also Jayanthi Iyengar, India v. China: Its all in the Mind,
ASIA TIMES Nov. 19, 2002, available at http://www.atimes.com/atimes/Asian_Economy/
DK19Dk01.html.
207
Mazzini, supra note 206, at 359 (Many investors compare China and India when determining where to invest . . . [and] China may have the edge.); Iyengar, supra note 206, at 2 (As
of today, China is undoubtedly an attractive investment destination, with consumer demand
growing at rates far exceeding expectations. This is unlike India, which has proved expert
estimates wrong[.]).
208
Jesse Parker, The Lotus Files: The Emergence of Technology Entrepreneurship in China and India,
26 FLETCHER F. WORLD AFF. 119, 132 (2002).
209
E.g., Iyengar, supra note 206, at 1 ([China] already figures on the list of the US for exclusive trading partners, rubbing shoulders with Canada, Mexico and Japan. The admission
threshold for this exclusive club is US$120 billion in two-way trade.). Indias trade with the
United States nowhere reaches this amount. Rosen, supra note 204, at 5.
350
IV. INTERNATIONAL BARGAINING

UNILATERAL INITIATIVES
AND THE
USE
OF
As shown in Part III above, a common response to a nations undesirable

behavior is to impose sanctions until the target nation ceases that behavior.
It showed that sanctions generally have limited or short-term success in the
context of intellectual property rights. This part will discuss the use of
unilateral initiatives as a strategy to establish long-term change in intellectual property protection in the BRIC countries.
This part defines unilateral initiatives and explains the difference
between a unilateral initiative strategy and a reciprocal strategy of bargaining. It will then offer real-world examples of private enterprises using
unilateral initiatives to successfully navigate difficult foreign markets while
still protecting their intellectual property. This part concludes that unilateral initiatives can play a significant role in protecting intellectual property
rights in the BRIC countries.
A. The Unilateral Initiative as a Bargaining Tool
A unilateral initiative is defined as a voluntary, conciliatory action presented by one party to the benefit of the other.210 A unilateral initiative is neither conditioned upon past compliant conduct or immediate expectation
of future compliance.211 Unilateral initiatives are not merely gifts, but
constitute any action that is taken without immediate expectation of response from the receiving party. Unilateral initiatives are usually considered to be positive, but do not necessarily have to present positive benefits to
the receiving party. Unilateral initiatives may also be used positively to
benefit the receiving party and negatively to impose punishment, sanctions, or economic harm. This article concentrates on the use of unilateral
initiatives that promote positive change for both the initiator and the
recipient.
The modern theory of unilateral initiatives originates from Charles
Osgoods 1962 book titled The Alternative to War or Surrender.212 Osgood
210
E.g., Michael D. Large, The Effectiveness of Gifts as Unilateral Initiatives in Bargaining, 42 SOC.
PERSP. 525, 526 (1999) (defining unilateral initiatives as a series of non-contingent conciliatory
gestures from one party to another.).
211
Id.
212
See CHARLES OSGOOD, THE ALTERNATIVE
TO
WAR
OR
SURRENDER (1962).
351
sought to describe an effective method for reducing tensions between

the Soviet Union and the United States.213 He devised a theory called
GRIT, Graduated and Reciprocated Initiatives in Tension Reduction. The
GRIT theory held that if graduated and reciprocal negative action can
increase tension between the parties, then graduated and reciprocal positive action can reduce tension and build trust necessary for conciliatory
action.214
Unilateral initiatives differ from the commonly practiced reciprocal
strategy and this distinction is worth noting. Reciprocity in the context of
bargaining involves a matching strategy in prisoners dilemmastyle games
whereby a bargaining party chooses the same action taken by its opponent
in the immediately preceding trial.215 A cyclical tit for tat strategy of reciprocal matching enables parties to cooperate for mutual gain without
risking exploitation by the opposing party.216 The goal is to establish a
pattern of reciprocation based upon prior conduct.
Pure reciprocity,217 however, is not without risks. Pure reciprocation
depends upon the mutual participation of both parties, but nothing more.
Parties can simply conduct implicitly or explicitly agreed-upon positive
exchanges at specified times. What holds the parties together in such exchange conditions is merely the expectation that the act by one party will
result in a reciprocal response by the other. As a result, reciprocation
strategies without more are vulnerable to collapse. The motives and
intentions of both parties may be ambiguous. An act considered by the
initiator to be a sufficiently reciprocal act might be interpreted by the
receiver as insufficiently reciprocal or a negative response. Parties might
213
Id.
214
Id. at 8598. See also Svenn Lindskold & Michael G. Collins, Inducing Cooperation by Groups
and Individuals, 22 J. CONFLICT RESOL. 679, 689 (1978).
215
Elizabeth Heger Boyle & Edward J. Lawler, Resolving Conflict through Explicit Bargaining, 69
SOCIAL FORCES 1183, 1185 (1991).
216
See generally Nehemia Friedland, Attribution of Control as a Determinant of Cooperation in Exchange Interactions, 20 J. APPLIED SOC. PSYCHOL. 303 (1990).
217
I define a purely reciprocal relationship as one that is based solely on the mutual exchange
of agreed-upon benefit over time that is dependent upon issuance of payment and response.
No contract exists between the parties. Rather, it is a relationship that continues solely because
of the persistence of the repeated exchange.
352
also exploit reciprocal patterns for short-term financial benefits or submit

to political pressure from competing interests.218
When one party defects, even temporarily, from reciprocation or
another party views a partys behavior as insufficiently reciprocal, rapidly
escalating negative action is likely. A nation that perceives itself insufficiently
recompensed for its prior generosity could simply respond with a negative
sanction to punish the supposed wrongdoer. That would promote an immediate negative response or counter-sanction. A positive reciprocation
norm could easily devolve into a negative one. Nations previously responding in kind to assist one another could devolve into a cycle of retribution.
The likelihood of devolution into a cycle of retribution is facilitated by
the fact that punishing a foreign nation is politically easier to accomplish
than rewarding a friendly one. Local interests injured by cooperative
behavior, such as subsidized local producers injured by free trade agreements, may seize on the perceived insufficiently reciprocal act as
justification for a change of policy. Further, sanctions are easier to implement. A simple law imposing tariffs on imports is easier to draft and
implement than a foreign assistance program.
Finally, a national response to insufficient reciprocation might even
trigger vengeful acts. Whereas retribution implies a proportional response
to a misdeed,219 revenge seeks not only to compensate for the harm but
also to punish the wrongdoer.220 The result may be a negative reciprocity
behavior that is exponentially more harmful than the benefits achievable
through positive reciprocity. The devolution into retribution results in the
nations being locked in to a pattern of mutual resistance and hostility.221
When a lock-in occurs, restarting a mutually beneficial reciprocal relationship becomes nearly impossible.
Reciprocal bargaining relationships lack an essential component to a
successful relationshipFtrust. Trust is the expectation that another person
will cooperate in a situation with multiple options.222 Trust is also a state of
218
S.S. Komorita et al., Reciprocity and Cooperation in Social Dilemmas, 35 J. CONFLICT RESOL. 494,
496 (1991).
219
Id. at 787.
220
Id.
221
Boyle & Lawler, supra note 215, at 1185.
222
Edward J. Lawler et al., Unilateral Initiatives as a Conflict Resolution Strategy, 62 SOCIAL PSYCH.
Q. 240, 242 (1999).
353
mind regarding anothers motives.223 Trust is premised on an examination

of prior behaviors or interactions that give a party the basis for anticipating
future conduct.224 Most importantly for the purposes of this article,
trust requires risk. Inherent in actions based on trust is the increase in
vulnerability to opportunistic behavior from the party in whom trust is
placed.225 Any nation unilaterally conforming to a mutually agreed-upon
legal regime necessarily takes the risk that other nations will receive
the benefits of the conciliatory act without responding in kind. Unilateral
initiatives, unlike reciprocation relationships, are more likely to provide
a foundation of trust and thus effectuate negotiations in a variety of
ways.
First, unilateral initiatives can break a lock-in problem between two
deeply entrenched parties. For example, in 1977 President Anwar Sadat of
Egypt, a long-time adversary to Israel, stunned the world by unilaterally
visiting Jerusalem, meeting with Israeli leaders in Israel, and speaking to
the Knesset on promoting peace between the two nations.226 Sadat did this
without prior consultation with the Egyptian government and Arab leaders
and did so in the face of enormous opposition from the Arab world.227
Most importantly, Sadat acted without requiring an equal conciliatory
gesture from Israel or the United States.228 As a result of Sadats visit,
America increased its involvement in the negotiation process which
Sadat believed was essential for receiving Israeli concessions in the future.
Israeli government leaders approved of the visit and pressured Israeli
leadership into making significant concessions.229 Sadat and Israels
223
Frank L. Jefferies & Richard Reed, Trust and Adaptation in Relational Contracting, 25 ACAD.
MGMT. REV. 873, 873 (2000).
224
Lawler et al., supra note 222, at 242.
225
Jefferies & Reed, supra note 223, at 873.
226
This event is described in Zeev Maoz & Dan S . Felsenthal, Self-Binding Commitments, the
Inducement of Trust, Social Choice, and the Theory of International Cooperation, 31 INTL STUD. Q.
177, 18993 (1987).
227
Id. at 190.
228
Sadat declared no more war before the Israeli Knesset without conditioning the proclamation on Israeli concessions. Id. at 191.
229
Id. at 191.
354
Menachem Begin signed the historic Camp David Accords the following
year.230
Second, unilateral initiatives can deescalate crisis situations. In at least
four twentieth-century global crises, unilateral initiatives proposed by a
third party helped adversaries deescalate their hostilities.231 Unilateral initiatives, when posed in this fashion, can allow one party or the other to
save face by accepting the initiative while still maintaining the appearance
of strength.232 The study concluded that [t]he most interesting findings
were associated with the prevalence and effectiveness of reciprocating influence strategies.233
Third, unilateral initiatives may also be used to enhance other negotiating strategies. For example, one author examined the relationship
between American actions and Soviet reactions in three major global crises
during the Cold War: the 194849 blockade of West Berlin, the 1961 Berlin crisis, and the 1962 Cuban missile crisis.234 The author found that when
the U.S. combined threats with positive inducements, it received more
Soviet cooperation than when it had used threats alone.235
B. Examples of Successful Unilateral Initiatives
Unilateral initiatives can positively impact the treatment of U.S. corporations
in a developing nation. For example, Donaldson and Weiner report the experience of a major telecommunications company in a developing market.236
230
See generally Randolph Michael Nichol II, Negotiating on Un-Holy Land the Road from Israel
to Palestine, 4 PEPP. DISP. RESOL. L.J. 87, 105 (2003). This unilateral initiative may have cost
Sadat his life. Sadat was assassinated in 1981 by Islamic extremists. Sadats peace initiative may
have been a motivating factor. See, e.g., David S. Sorenson, The Dynamics of Political Dissent in
Egypt, 27 FLETCHER F. WORLD AFF. 207, 218 (2003).
231
Leng & Wheeler, supra note 117, at 679.
232
Id.
233
Id. at 681.
234
Russell J. Leng, Reagan and the Russians: Crisis Bargaining Beliefs and the Historical Record, 78
AM. POL. SCI. REV. 338 (1984).
235
Id. at 353.
236
John Donaldson & Rebecca Weiner, Swashbuckling the Pirates: A Communications-Based

Approach to IPR Protection in China, in CHINESE INTELLECTUAL PROPERTY LAW AND PRACTICE 409
(1999). The name of the firm was deliberately withheld by the authors at the companys
request. Id. at 437 n.4.
355
The company performed in the market so successfully that they rapidly

outsold competitors.237 Soon after the companys initial success, the market
was saturated with cheap imitations of some of their most popular products.238 This is a familiar story for firms investing in developing countries.
The U.S. corporation has a number of options in responding to the
piracy and the lack of an effective response by the host countrys government. One option is that the firm can withdraw completely from the market. The cost of withdrawal is obviously significant. The firm will lose any
possible future market share in the economy. Indirectly, the firms withdrawal will aid competitors who will take advantage of the vacuum in
demand. Alternatively, the firm could threaten to withdraw in order to
extract a more aggressive response from the host government. Such
threats, however, may not produce the expected results. Significant investments by the firm in the host country, such as a factory, a mine, a
plantation, or infrastructure improvements create a hostage effect reducing the credibility of withdrawal treats.239 Alternatively, the multinational corporation can lobby the U.S. government to impose sanctions. The
questionable efficacy of such measures was discussed above in Part III.240
A third alternative, which the firm selected, is to conduct strategically
planned unilateral initiatives. Even in the face of excessive regulation and
mounting piracy, the firm aggressively publicized its long-term commitment to the nations market.241 Without any expectation of reciprocity, the
firm committed itself to reinvest all profits back into its foreign operations,242 donated funds to charities popular with government officials,243
implemented business and technical training programs that localized their
237
Id. at 415.
238
Id.
239
Peter J. Carney, International Forum Non Conveniens: Section 1404.5FA Proposal in the Interest of Sovereignty, Comity, and Individual Justice, 45 AM. U. L. REV. 415, 458 (1995) (citing
MULTINATIONAL CORPORATIONS, THE POLITICAL ECONOMY OF FOREIGN DIRECT INVESTMENT 6
(Theodore H. Moran ed., 1985) (describing hostage effect)).
240
241
Donaldson & Weiner, supra note 236, at 415.
242
Id.
243
Id.
356
management, and developed a pool of local component suppliers for their

products.244
Following these unilateral initiatives, the host governments demands
for unnecessary fees and taxes declined.245 More importantly, piracy of the
telecommunication firms intellectual property significantly decreased.
State and local branches responsible for intellectual property infringement
investigations became more aggressive. State agencies were extremely
helpful in finding and closing unlicensed manufacturers.246 This example
occurred in China but could have happened in any of the four BRIC
countries.
The company skillfully used a variety of unilateral initiatives to induce positive change. The firm publicly announced a long-term commitment to the Chinese market even when it appeared unprofitable in the
short term. The firm wisely donated charitable gifts and offered elaborate
training to Chinese citizens. The company made sure to publicize
these initiatives. The firm also executed initiatives with an eye toward
having the maximum effect. The firms deliberate choice to donate to
charities favorable to government officials is just one example of the
kind of interests-savvy approach that can maximize the effect of these
practices. As a result of these unilateral initiatives, the firm became one
of a few multinational corporations that Chinese leaders cite when
they discuss foreign corporate activities that are beneficial for
China.247
These unilateral initiatives did not eliminate piracy from the foreign
marketplace, but they helped create an environment where Chinese officials became allies in reducing piracy. As the article concludes, Chinese
courts, media and regulatory and enforcement authorities have shown
their willingness to carry water in IPR battles for companies they perceive
as Chinas friends.248
244
Id. In addition, the company permitted a significant amount of technology transfer. Id.
245
Id.
246
Id. at 416. A spokesperson for the company reported that there was no reluctance to assist
the firm and that there was a clear sense that the government wants to help this company
thrive, because its interests are seen as parallel to that of [the nations]. Id.
247
Id. at 415.
248
Id. at 41617.
357
Another firm used unilateral initiatives to reduce piracy by capitalizing on cultural norms. In China, the Heinz Corporation had been facing
significant competition from pirates across product lines.249 Pirates copied
their products, delivery trucks, and the uniforms of delivery personnel in
order to sell pirated products.250 Heinz embarked on an unusual approach. Instead of withdrawing from the market or lobbying the USTR for
action, Heinz paid for reporters to visit and observe raids against the
pirating manufacturers.251 The publicity brought negative exposure to the
pirates and positive exposure for officials who aided in the raids.252 When
discussing the raids, Heinz did not emphasize the importance of strong
intellectual property protection.253 Rather, Heinz focused on the low quality and the unsanitary conditions at the pirated factories.254 Heinz highlighted the risk that such unsafe conditions created for children and how
the raid on the factory was a consumer protection measure designed to
safeguard products consumed by the Chinese people.255 The Heinz
approach was successful not just because it showed a concern for others
without immediate expectation of return, but it capitalized on a strong
Chinese concept of using public shame to enforce social norms.256 Heinz
249
Neil Shister, China Never Stops, 18 WORLD TRADE 16, 21 (2005).
250
Id.
251
252
Id.
253
Id.
254
Id.
255
Id.
256
Cf. Carole J. Buckner, Realizing Grutter v. Bollingers Compelling Educational Benefits of DiversityFTransforming Aspirational Rhetoric into Experience, 72 UMKC L. REV. 877, 916 (2004)
(Chinese culture de-emphasizes the individual and emphasizes deference to others to avoid
bringing shame on the extended family.); Sarah M. Teal, Domestic Violence: The Quest for Zero
Tolerance in the United States and China: A Comparative Analysis of the Legal and Medical Aspects of
Domestic Violence in the United States and China, 5 J. L. SOCY 313, 348 (2003) (stating in the
context of domestic violence that, Chinese culture demands that family shame should not be
aired in public.) (quotations omitted). The cultural-based technique of public shame is widely
used. For example, Li Quizhong, a Chinese debt collector, functions in a legal environment
that has no small claims courts, a slow judicial system, and corrupt officials. Yet, Quizhong
collects debts successfully because he confronts people in their homes and businesses wearing
a red vest emblazoned with the words, Debt Collector. For even greater effect he bangs a
two-foot-wide gong and declares for all to hear, pay your debts! Quizhong declares his
strategy highly effective. Karby Leggett, Chinese Deadbeats Cringe at the Sound of Mr. Lis
358
reported that after the raids the company encountered no serious problems with the piracy of its infant formula products.257
Unilateral initiatives can also take the form of educational efforts
aimed at changing perceptions of foreign citizens. For example, the Chinese government has made significant efforts toward impressing upon its
people the importance of intellectual property rights.258 Chinas educational initiatives offer an important lesson for U.S. corporations doing
business abroad. Government officials under the right conditions can exert
significant influence over its people in order to protect intellectual property rights. Firms should encourage the governments role in educating its
citizens on the benefits of intellectual property laws. Such efforts may be
placed within the context of the benefits for ordinary Chinese citizens and
for Chinese intellectual property holders.259
As the examples highlight, unilateral initiatives can be an effective
method for generating government and citizen support for the protection
of intellectual property rights. There is no single formula that works every
time. The scope of unilateral initiatives is as broad as the firms that wish to
use them. The final section examines the steps necessary to implement a
unilateral initiative in a developing economy in order to maximize its
effectiveness.
C. Unilateral Initiatives: Planning Requirements
The mere presence of an initiative without more cannot guarantee increased intellectual property protection. Unilateral initiatives must be
implemented in a tactical fashion no different than any other bargaining
GongFHe Appears at their Doors, Shouting Pay Your Debts, Shame is Better than Law, WALL ST. J.,
Sep. 21, 2000, at A1.
257
258
Lin, supra note 70, at 208. For example, representatives of Guangdong province regional
government have sponsored a prize-winning newspaper quiz and a television contest on
intellectual property rights protection. Id. There have also been mass celebrations on
copyright protection for audiovisual products, support by celebrities, public lectures on intellectual property rights and economic development, and regular columns about intellectual
property in the popular press. Id. at 20809.
259
Yu, supra note 54, at 20809 (American businesses should rally the support of local intellectual property holders and help them develop a lobby that aims to protect their own
interests.). Another lesson to be learned is the importance of involving the regional and local
governments, and not the national administration, in these initiatives.
359
approach or marketing plan. This section discusses practices that optimize

the implementation of a unilateral initiative in a BRIC country or other
developing economy.
First, unilateral initiatives by a multinational corporation should be
announced publicly. A public announcement, rather than a private implementation, enhances the value of the initiative. The U.S. firm should invite
domestic press, foreign journalists, and government officials to the unveiling of the plan and use whatever marketing channels are necessary to
publicize the initiative. An explicit goal of any initiative must be to foster
the companys long-term interest in serving the nations marketplace and
to benefit consumers.260 The recipient nation will then know that its prestige will be at stake if the initiative fails due to the governments lack of
support.
Second, a unilateral initiative must accomplish what it sets out to
achieve. The firm must follow through with the proposed plan even if that
plan proves more expensive than anticipated. For example, if the telecommunications firm discussed above261 ceased its educational and technical transfer initiatives there is little doubt that the government would
have withheld its support for enhanced enforcement of intellectual property rights. The company would have also acquired a negative reputation
for trustworthiness going forward.
Third, a unilateral initiative must be executed without expectation of
an immediate response.262 The absence of a demand for a counter-benefit
mitigates the perception that the initiative is merely a tactic in order to take
advantage of the opposing party at a later time. The telecommunication
firms announcement of a long-term commitment to the Chinese market
without demands for concession enhanced the legitimacy of the firm and
its initiative.
Fourth, when a responsive conciliatory act does originate from the
host country, the initiator should respond to it by matching the act with
further concessions. If the firm receives notice that government officials
agree to enforce intellectual property rights more stringently, the firm
should immediately respond with an additional conciliatory act. This
measure helps create the matching reciprocal norm mentioned earlier
260
Lindskold & Collins, supra note 214, at 680; Boyle & Lawler, supra note 215, at 1186.
261
262
Lindskold & Collins, supra note 222, at 680.
360
that is effective in establishing conciliatory negotiations. Ideally, the reciprocity norm should not be based merely on the exchange of benefits, but
instead on a foundation of trust earned by the multinational corporation
though its implementation of unilateral initiatives.
Fifth, unilateral initiatives should not be implemented without the
will to retaliate should it become necessary to do so. Patterns of concessions
may imply that the initiator holds a weak bargaining position that should
be exploited rather than reciprocated. A firm should be prepared to
leverage its market power should a recipient nation begin to exploit the
initiative and no reciprocation seems forthcoming. This may include pressuring local government officials, threatening to withdraw or reduce its
market presence, ceasing technical training or other financial support, or
lobbying the USTR to take action. This should be used as a last resort and
only if it is clear that the recipient nation is resolute in abusing the firms
market presence. Ideally, the ability to retaliate and not the retaliation itself
should encourage developing governments to work with the U.S. firm and
to discourage exploitation.
Sixth, the implementation of unilateral initiatives must be sensitive to
the power relationships of the parties. Unilateral initiatives appear to be
most effective when they originate from a user and are received by a target
that possesses equal bargaining power.263 Unilateral initiatives may be accompanied by a perception of weakness by the target against the user.
Equal bargaining power protects the user of unilateral initiatives from the
perception that they have weakened their stance.264 Unilateral initiatives
made under unequal bargaining power are more likely to be viewed with
suspicion if received by a weaker party.265 At the national level, a stronger
nation making unilateral initiatives to a weaker party would have to compensate for the lack of trust by increasing the size of the initiative.
Finally, unilateral initiatives must be applied carefully to the individual nation with which a company or nation is dealing. Bargaining strategies
and bargaining signals differ across cultures. For example, one commentator bluntly describes Russian contractual negotiation strategy as follows:
263
Lawler & Ford, supra note 259, at 240.
264
Id. at 243.
265
Id. at 244.
361
Compromise is not a native word to Russians and, as far as they are concerned,
it has more the flavour of to be compromised than to make reciprocal concessions to arrive at a mutually agreeable or beneficial agreement. Hence, to
many Russians, an offer of compromise is a sign of weakness.
The natural impulse of many Russians when provided with an offer of
compromise is to go on the offensive, seeking to exploit and to establish
dominance. An unreciprocated concession reeks of weakness and invites
attack.266
Various researchers examining Soviet negotiation styles in the 1970s

and 1980s echo these sentiments, calling the Soviet approach to negotiations competitive, stubborn, inflexible, confrontational, uncompromising,
tough, hard, and rigid.267 In one study, fifty-six Soviets and one hundred
sixty American businesspeople participated in simulated one-on-one buyerseller negotiations.268 The study found that Soviet negotiators achieved
higher profits when using competitive approaches than their American
counterparts.269 Conversely, a cooperative approach by Russian negotiators yielded less favorable results.270 Although the study was published on
the eve of the breakup of the Soviet Union, the authors stated that seventy
years of Communist rule would likely have a persistent impact on Russian
citizens.271
266
Drew Martin, Contractual Aspects of Cross-Cultural Negotiations, 15 MKTG. INTEL. & PLANNING
19, 21 (1997). Drew also states:
Avoid general agreements and focus on details, since the Russians will adhere generally
to the strict letter of a contract, but interpret any vagueness to the utmost in their favour.
The Russian tendency is to put extreme proposals on the table, to stick doggedly to them
through extended negotiations and ultimately to modify them quickly and substantially.
The Russians expect that, when this is done, the other side will reject them firmly, thus
allowing negotiations to move on in a more realistic basis.
You win by demonstrating your seriousness; your adversary will have contempt for
you if you give in easily, respect you if you have fought hard. Remember Lenins adage,
If you strike steel, pull back; if you strike mush, push forward. Russians are good at
creating clever contracts which are wordy, ambiguous and omit important details which
they can exploit at a later date.
Id.
267
John L. Graham et al., An Empirical Comparison of Soviet and American Business Negotiations,
23 J. INTL BUS. STUD. 387, 39596 (1992) (citing various studies).
268
Id. at 38889.
269
Id. at 410.
270
Id.
271
Id. at 414.
362
The aforementioned cultural tendencies in negotiation strategies will

likely impact how Russian citizens and government officials accept a unilateral initiatives approach to protecting intellectual property. If the Russian government or nongovernmental organization relevant to intellectual
property protection behave similarly, then the use of unilateral initiatives
may not be as effective. If the opposing party is so culturally unresponsive
to voluntary concessions, then unilateral initiatives may be seen as a sign of
weakness to be exploited. Any multinational corporation must take into
account the unique cultural characteristics of the target nation when implementing a unilateral initiative plan.
V. CONCLUSION
For at least twenty years, the protection of intellectual property rights has
been a major concern for American companies doing business abroad. U.S.
firms have lobbied their government for a variety of protective measures,
including strengthened international law, augmented domestic statutes, and
assessment of severe penalties against noncompliant nations. The result has
been an aggressive effort by the USTR, industry, and affiliated organizations
to curb intellectual property violations in developing countries.
The benefits of these efforts have been uneven. While the BRIC
countries have taken significant steps toward improving the letter of their
intellectual property laws, and initiatives have occurred to enforce these
laws, widespread enforcement of intellectual property rights against local
piracy and counterfeiting continues to be insufficient. U.S. representatives
have pushed hard for enforcement efforts and stronger judicial penalties.
The U.S. government has threatened punitive measures against governments who do not provide adequate intellectual property protection. The
result, however, is that piracy in the BRIC economies remains widespread.
The lesson to be learned is that coercion alone cannot adequately
change the intellectual property practices of developing countries. While
the United States still maintains significant leverage over the BRIC economies, particularly India and Brazil, that leverage is bound to decline
as the BRIC countries evolve into mature economies.272 The power of
272
As the Goldman Sachs report reveals, unless BRIC leaders manage to derail current open
market and technology development policies, these economies will dominate the global marketplace by 2050. See supra note 1.
363
unilateral coercive action by the United States will diminish. Coercive actions are increasingly becoming cumbersome as national economies become more and more intertwined. Coercive action to advance certain U.S.
interests often has negative third-party effects on other U.S. interests.
Unilateral initiatives represent an important and practical alternative
to coercion as a strategy to protect intellectual property rights abroad.
While coercion will still have its place as an option of last resort, unilateral
initiatives by an economically dominant power have the effect of increasing
trust between competing economies. Such initiatives hold the greatest
hope for producing long-term improvements in international intellectual
property protection. Heinz and other companies have successfully curbed
piracy of their products in the Chinese market through the use of unilateral initiatives.273 Their unilateral initiatives played a significant role in
furthering their business goals, shaping consumer sentiment, and generating publicity toward their cause.
Unilateral initiatives offer significant potential in helping to establish
meaningful intellectual property protection regimes in the BRIC countries. Unilateral initiatives can foster willingness to cooperate and thereby
reduce piracy abroad. The question remains not whether U.S. firms can
afford to implement these initiatives, but whether they can afford not to do
so as the BRIC economies become major actors on the global economic
stage.
273

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American Business Law Journal

Volume 43, Issue 2, 317363, Summer 2006

Defending Intellectual Property

Vol. 43 / American Business Law Journal

Wilson & Purushothaman, supra note 1, at 4.

2006 / Defending Intellectual Property Rights in the BRIC Economies

II. THE RISE OF THE INTERNATIONAL INTELLECTUAL

Ilkka A. Ronkainen & Jose-Luis Guerrero-Cusumano, Correlates of Intellectual Property

Vol. 43 / American Business Law Journal

countries where the inventor wanted patent protection.11 Failure to do so

2006 / Defending Intellectual Property Rights in the BRIC Economies

signatories to these conventions.18 Entire fields of patentable technology,

Emmert, supra note 16, at 1340.

Guzman, supra note 18, at 94849.

Peter M. Gerhart, Reflections: Beyond Compliance TheoryFTRIPS as a Substantive Issue, 32 CASE

Vol. 43 / American Business Law Journal

Mossinghoff, supra note 11, at 598.

Susan K. Sell, Multinational Corporations as Agents of Change: The Globalization of Intellectual

Id. at 674 n.32.

Michael Perelman, In Patents we Trust, htttp://www.ipfrontline.com/depts/article.asp?id=

2006 / Defending Intellectual Property Rights in the BRIC Economies

Dam, supra note 25, at 630.

Gad, supra note 30, at 676.

Gerhart, supra note 24, at 369 n.30.

Vol. 43 / American Business Law Journal

between rich and poor would continue to expand.40 The developing

2006 / Defending Intellectual Property Rights in the BRIC Economies

local enforcement and dispute settlement requirements, and authorizing

19 U.S.C. 2411 (2005).

The stated purposes of the 1974 Trade Act are:

Vol. 43 / American Business Law Journal

19 U.S.C. 2411(a)(1)(A) (2005).

19 U.S.C. 2411(a)(1)(B)(ii) (2005).

Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. 21012495 (2005).

Yu, supra note 54, at 139.

2006 / Defending Intellectual Property Rights in the BRIC Economies

specifically on unfair intellectual property rights practices.60 Special 301

Gad, supra note 30, at 682.

Vol. 43 / American Business Law Journal

Special 301. On October 20, 1988, President Reagan issued proclamation

Gad, supra note 30, at 678.

2006 / Defending Intellectual Property Rights in the BRIC Economies

III. COERCION AS AN INEFFECTIVE STRATEGY IN

Foster, supra note 44, at 316.

See text accompanying notes 14479.

Vol. 43 / American Business Law Journal

equilibrium benefit of W to follow S but by making the alternative of not

Gerhart, supra note 24, at 369.

Neigel, supra note 71, at 186.

Foster, supra note 44, at 30910.

Embassy of India Policy Statements, Intellectual Property Rights in India, at http://www.indianembassy.org/policy/ipr/ipr_2000.htm.

2006 / Defending Intellectual Property Rights in the BRIC Economies

trademarks, and offered the right of judicial review to administrative

International Intellectual Property Alliance (IIPA) a coalition of private-sector interests

Vol. 43 / American Business Law Journal

materials.87 Piracy of copyrighted recordings constitutes over half of all

2006 / Defending Intellectual Property Rights in the BRIC Economies

Vol. 43 / American Business Law Journal

In sum, despite some good faith government enforcement efforts,114

2006 / Defending Intellectual Property Rights in the BRIC Economies

significantly curb global intellectual property piracy.115 In fact, evidence

See text accompanying notes 14579.

Yu, supra note 54, at 144.

Vol. 43 / American Business Law Journal