UTS fights to protect intellectual property

UTS fights to protect intellectual propertyUTS isn’t resting on its laurels when it comes to intellectual property protection in the Asia-Pacific.

We’ve all had a laugh at the strange marketing blurbs on the back of pirated DVDs. “This sometimes too objective movie lacks a sense of definitive character, undermining its gorgeous scenery and interesting perspective on the plight of Native Americans,” says the cover of a bootleg copy of Kevin Costner’s 1990 epic Dances with Wolves.

The reality of intellectual property (IP) theft, however, is not funny at all. For those who make a living through work protected by copyright, trade marks, patents, designs or confidential information laws and for countries like Australia where the economic benefits of innovation and creativity are significant, protection and enforcement of IP rights is vital. That includes reducing the amount of infringing material brought into Australia, often from Asian countries like China, Thailand and Indonesia, which regularly appear on the US’s Special 301 Report, a priority watch list of countries that need to strengthen enforcement of IP rights.

Intercepting counterfeit and pirated goods at customs is one option. Increasingly, however, the focus is shifting to strengthening IP protection and enforcement in the originating countries, to stem the huge international flow of fake DVDs, luxury goods, food, medicines, tobacco, car parts and even cleaning products. UTS is playing a leading role in enhancing IP rights in several Asian countries, through initiatives such as judicial training and joint projects with universities in Asia to advise on IP capabilities.

“Awareness building in IP is how UTS is leading the way,” says Professor Natalie Stoianoff, who chairs the UTS Faculty Research Network for IP, Media and Communications and is the Director of the University’s Master of IP program.

For example, plans are underway to offer the University’s world-class online program for training trade mark and patent attorneys to students in China and India.

Crossing borders

In May, Stoianoff hosted a visiting law professor from China’s Huazhong University of Science and Technology (HUST) to discuss IP enforcement, exhaustion of IP rights and cross border innovation and cooperation on patents. UTS has a Key Technology Partnership with HUST, one of China’s top 10 universities, which Stoianoff says will eventually lead to a joint IP research program, including offering joint PhDs.

Stoianoff’s expertise in Chinese IP rights was cemented by a project funded by the Australian Research Council (ARC) in 2005-08 to investigate IP enforcement and awareness building in China, Thailand and Indonesia. She led the China segment of the project and has since delivered many journal articles and seminars on the topic. She has also been a consultant to provide IP training for Chinese judges and administrative staff and in October she will travel to China to prepare case studies on IP enforcement.

“Nations like China, in particular, started out as massive counterfeiters of products. It’s always on the 301 watch list,” Stoianoff says. “But they’ve been improving. Over the last decade there has been a complete turnaround in attitude because locals are creating their own IP and want to protect it.”

Another impetus has been international trade relations; when China joined the World Trade Organization in 2001, it took on the obligations of the Agreement on Trade- Related Aspects of Intellectual Property Rights plus massive international pressure to observe those obligations.

History and culture

As Stoianoff points out, historical and cultural differences have played a big role in shaping China’s approach to IP. Traditionally, China did not classify IP as a property right, although that started to change in the 1800s with increasing trade with the West.

Under Chairman Mao’s Communist rule, however, the concept of private ownership diminished and it wasn’t until the open door reforms under Deng Xiaoping in the late 1970s that IP protection again emerged. Now, says Stoianoff, China has a very extensive IP administrative regime, although enforcement remains a problem area.

Professor Michael Fraser, the director of UTS’s Communications Law Centre and the Chair of the Australian Copyright Council, agrees that cultural traditions play a big role in the approach to IP protection in countries like China and Thailand, particularly for copyright. He has worked for years with the World Intellectual Property Organization and other groups on copyright capacity building in South East Asia and China, including helping to develop societies of authors and copyright associations in the region.

“They are much closer historically and culturally to a tradition that scholars, creators and inventors were supported and patronised by the Crown or religious institutions or the aristocracy,” he says, adding that this was also the case in Europe until the 1700s.

“They were highly respected – and still are – but they were not seen as working in the market or part of the commercial sphere. The fruits of their labour were for the benefit of society and it would be seen as almost offensive to pay those people for their work.”

A new way of thinking

Fraser, who founded Australia’s Copyright Agency Limited, which collects payment for content creators such as journalists when their work is re-used, says the modern market economy, where copyright makes works of the mind into a property right and the patronage of powerful institutions no longer provides a livelihood, is a big change.

“That comes as a new and revolutionary way of thinking of the role of creativity in society and it’s not an easy step for those countries to take,” he says, noting that many countries in the region have good laws on their books but practical enforcement of those laws is often suited to the country’s stage of development.

“They become more serious about enforcement when they have more IP industries that are trying to export,” he says, adding that this is a shortsighted view because good protection and enforcement is required first, as a basis on which to build innovation and creativity.

Recently, his centre hosted a visiting academic from the University of Indonesia to discuss joint research to advise the Indonesian government on copyright laws. He also spent a week in Indonesia in May finalising the research program, which includes issues such as copyright in traditional cultural work such as batik (a traditional textile hailing from the island of Java). Later this year, Fraser hopes to develop a project on capacity building in copyright for countries like Cambodia and the Pacific Islands.

Forging its own path

George Tian, Senior Lecturer at the UTS Law School, agrees that IP protection and enforcement has changed dramatically in China and other Asian countries over the past few years. In the past, he says, efforts to improve enforcement have come from international pressure, such as the Special 301 Report; now China is focusing on developing its innovation capacity and indigenous IP, which requires strong protection and enforcement.

“Four or five years ago, there were no strong incentives to enforce IP laws because China was a net importer of IP,” he says. “Now, as technology is being created and owned by Chinese companies, there’s a much stronger incentive.”

Story by Lucinda Schmidt