In 1776, the Declaration of Independence heralded the birth of the United States of America. In that same year Adam Smith's seminal work on the importance of free markets and fair competition, The Wealth of Nations, was published. The principles in the Declaration of Independence have informed and enriched the lives of Americans and peoples the world over who yearn for civil and political freedom. Adam Smith's work sparked a debate on economic freedom and the role of the state in a nation's economy — a debate that raged in the 20th century between those favoring a free market-based economy and those favoring a state-planned economy. With few exceptions in the world today, nations have chosen to let market forces determine the direction and speed at which their economies develop.
    I believe that intellectual property — copyrights, trademarks, patents, trade secrets, and related rights — provides important support to those freedoms. Barbara Ringer, former U.S. register of copyrights, observed that the copyright laws of England and the United States were “based on the harsh but free system of enterprise that grew up in England and America. Under this system, authors are free to write and live by writing if they can manage to command the attention of a large enough segment of the populace to make the dissemination of their works even marginally profitable.”
    Trademark protection is similarly imbued with these characteristics. A free market can hardly exist without a strong and effective trademark law. Without sanctity for a commercial identity — thereby to enjoy the fruits of one's labor — free enterprise and the beneficial competition it engenders are without motivation. Patent protection gives inventors the exclusive right to exploit their inventions. This exclusive right gives them the economic security and, thereby, the freedom to follow any path along which their human ingenuity and imagination may lead them. It is not without reason that the 1948 International Declaration of Human Rights states, in Article 27(2), that every creator has the right to the protection of his or her interests “resulting from any scientific, literary, or artistic production of which he is the author.”

Historical Roots

Intellectual property is neither a new nor a static concept. The grant by a state of some form of exclusive rights in their inventions to inventors originated in the early part of the 15th century in Venice and spread rapidly during the 16th century to Germany, France, the Netherlands, and England. It was early recognized that in a free market economy, patent protection provides the necessary incentive to invent, to disclose the invention, to invest in the commercial development of the invention, and to motivate others to add to the store of human knowledge by designing around the patented invention. The Statute of Queen Anne, enacted in 1709 in England, was the first true copyright statute and the first recognition of the source of the copyright interest in the creative act of authorship. Copyright laws provide authors the benefit of economic rewards, while the public receives the benefit of literature, music, and other creative works that might not otherwise be created or disseminated.
    Trademarks are thought to date back at least 3,500 years to potters' marks used to identify the source of fired clay pots. Jurisprudence and statutes for the protection of trademarks appear to date back “only” 350 years, to early 17th-century England. Trademarks serve to indicate the origin or source of a particular product or service and, related to that, distinguish the goods or services of an enterprise from those of other enterprises. Trademarks also serve an important consumer-protection function in establishing the link between a good or service and its source. The consumer knows, therefore, whom to turn to if he or she receives poor goods or services. Trade secret protection is an integral part of honest business practices — if information is not generally known, has commercial value, and the owner takes reasonable steps to protect it, it should be protected. Trade secrets are often the oil that lubricates a technology transfer agreement. Without it, the parties to an agreement find it difficult or impossible to freely exchange the information vital to making the agreement work.
    Laws for the protection of intellectual property are not static but change in concert with changes in technology and society. In Book 2, chapter III of The Wealth of Nations, Adam Smith stated that the labor of persons we now call “performers” is “like that of menial servants, unproductive of any value, and does not fix or realize itself any permanent subject, or vendible commodity, which endures after that labour is past, and for which an equal quantity of labour could afterwards be procured.” He concluded that, “like the declamation of the actor, the harangue of the orator, or the tune of the musician, the work of all of them perishes in the very instant of its production.” In 1776 it was not possible, of course, to fix a performance in a tangible medium. Today, a multimillion dollar worldwide industry has been built around the fixation of performances in videos, cassette tapes, and compact disks.
    It is these changes in technology that cause the greatest challenges and greatest opportunities to the intellectual property system. It is a large part of the reason that the norms in the field of intellectual property developed so rapidly in the 20th century — the century that saw the creation of photocopiers, radio, television, videocassette recorders, cable television, satellites, computers, and the Internet.

The TRIPS Agreement

The most important recent event in the evolution of norms in the field of intellectual property protection was the conclusion of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods. The so-called TRIPS Agreement is an integral part of the Agreement Establishing the World Trade Organization (WTO), which was signed in Marrakech, Morocco, on April 15, 1994, and went into force on January 1, 1995.
    The TRIPS Agreement sets forth minimum standards to be met by members of the WTO for according rights for the protection of intellectual property and for the enforcement of those rights. There are separate minimum conditions that all countries must apply with respect to copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs (topographies) of integrated circuits, and trade secrets. It also establishes standards for the control of anti-competitive practices in contractual licenses. Traditionally, the weakest aspect of intellectual property agreements has been enforcement. TRIPS, contrary to this tradition, sets out detailed obligations regarding enforcement procedures and includes provisions on cooperation and technical assistance among the signatories.
    Development of norms in the field of intellectual property has not stopped with the conclusion of the TRIPS Agreement. The Trademark Law Treaty (TLT), concluded in 1994, simplifies and harmonizes the trademark registration process in treaty members. On December 20, 1996, the World Intellectual Property Organization (WIPO) Diplomatic Conference on Certain Copyright and Neighboring Rights Questions adopted two treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Even after the then recently concluded TRIPS Agreement, advances in technology had rendered difficult, and soon impossible, the protection of some forms of intellectual property. These advances included the commercial development of the Internet and satellite networks that allow transmission and reception, in a digital form, of vast amounts of information and entertainment products.
    The WIPO Copyright Treaty includes provisions on the copyright protection of computer programs and databases and on the rights of distribution, rental, and communication to the public. The WIPO Performances and Phonograms Treaty includes provisions on the minimum rights granted to performers and producers of sound recordings, including the rights of reproduction, distribution, and rental. Both treaties also include provisions to ensure the security of technological measures of protection and electronic management information, which are indispensable for an efficient exercise of rights in the digital environment.
    Even before the ink was dry on these agreements, discussions had begun on how to expand and strengthen them. Moreover, regional discussions are moving forward for the protection of intellectual property, including in the context of the Free Trade Area of the Americas. (The Free Trade Area of the Americas, which was launched by 34 democratically elected leaders in December 1994, represents a commitment to fair and open trade throughout the Western Hemisphere by the year 2005.) Again, this is an inevitable consequence of changing technology and economic and political conditions throughout the world.

Expanding the Opportunities

The government of the United States would like every country to fully implement the obligations under the agreements in place, including the TRIPS Agreement, and to ratify and implement new agreements, including the Trademark Law Treaty and the WIPO Treaties. Clearly, we want this to be done because American inventors, authors, and performers would directly benefit. But we are also committed to this goal because it supports the economic and political freedoms that we hold dear. The protection of intellectual property around the world will be a “rising tide that lifts all ships.” Indeed, a study by the World Bank on the economic effects of TRIPS concluded that there is mounting evidence “that the implementation of TRIPS will have a net trade-creating impact.”
    This expansion of opportunity will benefit not only large corporations but independent authors and inventors as well, and not only developed countries but developing countries large and small. Many developing countries have recognized this basic truth and are taking steps to strengthen intellectual property protection. In recent years, for example, the government of Malaysia has redoubled its efforts to improve the laws for the protection of intellectual property and their enforcement. This is seen as essential to the construction of what Malaysia calls its “multimedia super corridor” — an effort to encourage the development of information-based industries in that nation. We have also seen intellectual property provide a basis for establishing a viable recording industry in many countries where it did not exist before, including Ghana. We have seen countries like Venezuela and Trinidad and Tobago make conscious decisions to embrace strong and effective intellectual property protection to change the orientation of their economies from one based on commodities (in their case, oil) to one attractive to high technology, value-added industries.

Building an Effective Infrastructure

I believe that the question has evolved from what should be done and when — the TRIPS Agreement and its progeny have answered that question — to how it can be done. The U.S. government is fully committed to finding answers to that question. Indeed, the U.S. government, along with other governments and intergovernmental organizations, is committed to helping all countries meet — and exceed — their international intellectual property obligations.
    The scope of work is not insignificant. We believe that countries must do the following to build an effective infrastructure for the protection of intellectual property:
Quickly enact and fully enforce TRIPS-consistent laws, including a law or laws for each area of intellectual property protection and any necessary authority for its enforcement in the civil code, criminal code, or administrative code, as appropriate.
Establish access to a properly staffed, trained, and equipped intellectual property office that grants industrial property protection, disseminates information about rights that have been granted and general information about intellectual property, and cooperates with enforcement agencies.
Establish a well-trained judiciary that has the ability to conduct criminal and civil proceedings in a fast, fair, and transparent manner; the authority to impose an adequate level of fines and jail terms, as well as the will to actually impose them; and the will to impose preliminary and permanent injunctions with severe penalties for violation.
Establish a well-trained police force operating in a transparent manner that has the will and authority to undertake investigations and initiate legal action against intellectual property pirates (if necessary, in cooperation with other authorities). Such a police force also needs the power to conduct raids without notice to the infringer (but with proper safeguards to prevent abuse) and the will to do so, and the legal power to confiscate and destroy (or turn over to the intellectual property owner) infringing products, machinery to make such products, and business records.
Establish a well-trained customs force operating transparently with the will and authority to enforce intellectual property laws at the border.
Encourage the development of a well-trained corps of attorneys or agents in the private sector that is capable of working with administrative authorities, police, judiciary, and customs authorities to obtain and ensure the enforcement of intellectual property rights for the legitimate rights holder.
Encourage the development or the establishment of private sector organizations, such as collecting societies, bar associations with specialization in intellectual property matters, and organizations representing authors and inventors.

Meeting Our Obligations

Countries that have little or no experience with the protection of intellectual property rights will find the prospect of putting in place all of these elements intimidating. Through judicious implementation and, to the extent appropriate, regional and international cooperation, however, the reality of meeting these obligations may not be as difficult as it may seem. For example, the TRIPS Agreement requires specific protection for layout- designs of integrated circuits. There is no requirement, however, for establishing any administrative infrastructure for the examination or even the registration of applications for protection. Provision for the protection of such technology in national law is sufficient.
    In addition, there is no reason why search and examination of a patent application must be carried out in each country in which protection is desired. Most patent applications will have been previously filed in the U.S. Patent and Trademark Office, the Japanese Patent Office, or the European Patent Office. In each office, the application would have been searched and examined. That work is complex and requires highly trained personnel — for instance, scientists whose skills would be better employed in research and development. Countries may wish, therefore, to establish a system that considers the results of searches and examinations performed in other countries.
    We are operating in an era when the training and infrastructure-building problems of countries trying to meet their international obligations may, through judicious use of modern technologies, be more easily addressed. The explosion in the commercialization of the Internet has brought with it open data standards and new capabilities for facilitating secure communications between patent offices and patent applicants. The cumulative effect of these factors is that we now can take advantage of information technologies to make providing intellectual property protection more efficient. The United States is working closely with the World Intellectual Property Organization to expand opportunities for technical assistance and training.
    We also believe that technical assistance to industrial property offices in the developing world is essential as the needs of countries throughout the world are clear — training and technical assistance to enable them to establish and maintain an effective intellectual property system. I believe that the bilateral and multilateral resources, including those of the government of the United States and WIPO, are available to help each country do so. Doing so will satisfy international obligations. More importantly, it will be an obligation that every state has to its people to protect and preserve economic and political freedoms.