The US was also a major IPR pirate not so long ago!

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The US just loves to paint developing countries like China and India in dark colours when it comes to respecting IPR, but here are a couple of articles written during the second half of the 19th century, when England was relatively more prolific in the arts and letters than the United States. It transpires that the United States was not much different from what it alleges that China is today. In other words, the US's own record in this regard has hardly been more impeccable.

In those days, there was no established international copyright code. Therefore, payments of royalties and recognition for foreign authors were not legally enforceable but were based on honesty and "courtesy of the trade".

In 1867, one James Parton wrote, "For forty years or more we have all been buying our books and reviews at thieves' prices... . . Can any one suppose that the proprieters like to see Blackwood and half a dozen other British magazines sold all over the country at a little more than the cost of paper and printing?" He chronicles several instances of authors unable to encash the success of their works, and makes out a cogent case for an International Copyright.

Then, in 1879, Arthur Sedgwick wrote, " ... piracy still flourishes as a profitable branch of trade. ... The attitude of the United States on the subject of copyright is more remarkable than that of any other modern country. ... It has ... studiously fostered international piracy, and refused to foreigners the benefits of its copyright law"

James Fallows, in a more recent article written in Dec 1993, suggests that cheating and cutting corners to get ahead, and then, once strong, advocating set rules of fair play and chiding other powers for failing to abide by them,  was a standard pattern by which developing nations typically bolstered their international economic standing. We can see this pattern very regularly in the big international debates of the day -- be it agricultural subsidies, or climate change initiatives, or IPR.

These writings, both old and relatively recent, represent contemporary and historical evidence that lay bare enough to show that notwithstanding the high moral ground positions adopted by developed nations in multilateral negotiations, were themselves not much different from the targets of their ire only a century-and-a-quarter ago.
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Act against ACTA Secrecy

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The governments of the United States, the 27 member countries of the European Commission, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, and Mexico are negotiating a trade agreement named the Anti-Counterfeiting Trade Agreement (ACTA).  Despite the name, the agreement is designed to address not only counterfeiting, but a wide range of intellectual property enforcement issues, including civil and criminal enforcement, IPR in the Digital Environment, etc.. Thus, ACTA seems to be not just a simple trade agreement but something with much wider ramifications.

In most multi-lateral negotiations, generally, sunlight is usually considered the best disinfectant, mainly because secrecy cannot really be maintained over a long period. However, in this case, the specific details of ACTA have largely been kept secret. The United States Trade Representative (USTR) has refused to release even the agenda and lists of particpants for the June 2008 ACTA negotiating sessions. For over two years, the U.S. government has claimed the negotiations can be shielded from disclosure under laws protecting the national security of the United States. Two senators, Senators Bernie Sanders and Sherrod Brown have written to USTR, asking that the ACTA text be made public. Then, in response to sustained pressure for openness, the Obama administration began inviting lobbyists, corporate law firms and big companies to see the "national security" secret documents under non-disclosure agreements that by contract prohibit public criticisim or discussion of the ACTA text. 

I think this makes the secrecy even worse -- the fact that only interested pressure-groups are being allowed to see it and not the general public at large makes it seem that a conspiracy against the interests of the people who are kept in the dark (WIPO, developing countries, NGOs) is being cooked. More specifically, there is no evidence so far that ACTA contains safeguards embodied in Articles 1, 6, 7, 8, 40 and 44.2 of TRIPS, which together protect the public interest.  Further, the very fact that there is a different enforcement mechanism (not really necessary as there is a well-negotiated mechanism in TRIPS Articles 41, 44.1, 45, 46, 47, 50, and 61) gives rise to fears that the new provisions may be more restrictive or undemocratic in their impact.

The Australian Government and the Canadian Government defended the secrecy in an identically worded statement, thus:"A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed. However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation."

I think this secrecy is uncomfortable, and unjustifiable. Until the ACTA, nearly all global negotiations on multilateral intellectual property norms were comparatively much more open and transparent. See these documents 1 2 3 that lay down the extent of transparency in other multi-lateral negotiations.

However, maintaining secrecy is very difficult. There have been leaks of the ACTA text, which seem to suggest that the concerns over the lack of transparency are justified, in that they seem to bend to copyright pressure groups in imposing copyright industry demands on the global Internet, that will impose policing and infringement protection responsibilities on ISPs in the signatory countries. Worse is in store. And these represent only a minuscule portion of the text that has been leaked. What else lurks beneath is a real concern.

Why should India bother about ACTA?
As this commentator puts it, "Because ACTA is intended to create new global international IP enforcement standards, including these provisions will allow US negotiators to achieve what they have not been able to do to date – ensuring that the US's overbroad implementation of the WIPO Internet Treaty TPM obligations becomes the global standard."

India must be bothered about anything that might get pushed down its throat without its consultation or involvement. That's why.
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Strong IPR regimes counterproductive for technology transfers

Technology transfers to developing countries for climate control related technologies are not possible due to their weak IPR regimes. This oft-expressed notion has been called into serious question by a 64-page Discussion Paper titled Emerging Asia contribution on issues of technology for Copenhagen jointly authored by representatives of 5 countries' Research Institutes. They evaluated the domestic status and transfer of 3 key mitigation technologies, viz. clean coal, solar power and biofuels, to China, India, Indonesia, Malaysia and Thailand.

They point out that Malaysia and Indonesia have strong IPR regimes, but yet have not benefitted from technology transfers of these clean technologies.

They argue that strong IPR regimes may even hinder developing countries' access to technology. Where patents are honoured, as most patents are held by foreign companies, it stifles local research and prevents adaptation of technology to local needs. 

These are strong arguments indeeed, and their eventual recommendation is even more startling: TRIPS allows individual countries to override patents in a national emergency, so it could be worthwhile to declare climate change a national emergency and climate change mitigation as a public good.

This report should set the cat among the pigeons if any of the developing countries were to follow their recommendation, and their cogent arguments backed by data will surely be the topic of heavy discussion at Copenhagen later this year.
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IPR takes centrestage in WTO dispute on cotton subsidies

The developed world is learning that the legal framework supporting and honouring the western IPR regime in a developing country cannot be taken for granted.
Brazil has been permitted by the WTO to retaliate against the injustice done to their cotton farmers by the generous subsidies doled out by the US to their cotton farmers, making it possible for them to undercut and underprice the cotton. And what form is this retaliation taking? Not new anti-dumping on US imports, or trade embargoes. 
Brazil has been permitted to allow their country's pharmaceutical companies to manufacture medicines in Brazil in deliberate violation of patents held by US companies. This one is a below-the-belt hit for the vibrant US pharma industry. Brazil is a huge market, and very lucrative too. All the lucre will disappear overnight in their Brazilian operations, if this were allowed.
This is very unfair, or very fair, depending on your point of view. 
For US companies, it will seem very unfair, because, for no fault of theirs, they are losing patent protection in a lucrative, large market (there aren't too many of those nowadays!). 
However, Brazil, and most of sub-Saharan Africa, which includes really poor countries like Chad, Mali, Liberia and Burkina Faso, will be cheering. They have cotton they cannot sell thanks to under-priced US cotton flooding international markets; they don't have factories that can add value to the cotton; and they have huge AIDS affected populations. Their cotton farmers and the AIDS patients will like the prospect of better times ahead.