IPSC: Comparative & International IP

Karen Sandrik, Marquette University Law School, Cultural Legacies and Innovation Barriers: Comparative Lessons from Post–Soviet Research Institutions for American Innovation Policy

Slovakia: Comenius U press release about first official patent sold/assigned by a Slovak university. They spent a year negotiating the deal. Have more than 10 tech transfer centers established in the past 15 years; partnerships w/ various institutions; EU membership has played a role. Despite actually staffing the tech transfer centers, didn’t see any interaction b/t gov’t or institutions or even w/in institutions, b/t industry and academia, b/t industry and gov’t—no real interest in collaboration. Therefore no contracts. What are the barriers? Contractual? IP? Something else?

Slovakia offers a cautionary tale of what happens when you don’t have what we have in the US. We prioritize partnerships, relationships with colleagues, synergies; we get annoyed by being asked to do things cross-campus or with other universities. When you don’t have trust and open science, you don’t have risk tolerance or the ability to withstand short-term bad outcomes for long-term investment/relationships. Rational survival strategies that were in place for good reasons can become hard-to-change embedded behaviors even after they lose their justification. Lesson: US is at risk of losing more than grants, but losing the culture that supports innovation.

Communist Party of Slovakia; Czechoslovak Academy of Sciences, established 1952, became centerpiece of scientific research. Universities were just for teaching. Publications were vetted; collaboration wasn’t allowed; you minimize dependencies on institutional promises and keep your head down. Good work still happens!

1989: Velvet Revolution. 1993: Velvet Divorce. 2004: EU membership. Stephen Kotkin & Mark Beissinger: Historical Legacies of Communism: An Empirical Agenda: Key concepts for her: parameter setting: past experiences limiting future options; cultural schemata: embedded ways of thinking that persist.

Ewa Morawska, Malleability Paradox: Communist-era copying strategies for temporary work/cross border trading thrived in Western capitalist markets. Why? “Beat the system” mentality: (1) circumventing official channels when they seem ineffective or risky; (2) prioritizing short-term opportunism over long-term institutional relationships; and (3) placing greater trust in personal networks than formal institutional processes—she saw that in her own research. This isn’t dysfunction or irrationality, but a rational learned response. But it makes collaboration and innovation in research labs hard. Materials sharing, personnel sharing etc. require formal contracting.

Interviewed people at tech transfer offices, gov’t officials, industry experts, and lawyers. They spoke of “protecting” researchers who had demands on their time; that wasn’t their job to work across institutions or fields; avoiding “free work.” People didn’t even know about IP Center on campus; tried to introduce people and they resisted—our job is to work for our students and respond only to our dean; the tech office would just want free work from us. What about visiting PhD students? Why would we do that? We are different scientists with different research.

Quasi-activity: you seem to be doing a lot of work but you’re not really engaging underneath. Putting out an article about a new relationship b/t university and patent center that doesn’t actually happen.

Are we creating the conditions for our own beat-the-system mentality? Researchers avoiding politically sensitive topics (Fulbright grants cancelled for 2025-2026 w/ informal advice to avoid certain topics in new applications). Increased isolation: prohibition on giving funds to foreign researchers.

Protecting innovation isn’t just about funding—it’s about culture legacies, safety, mindset.

How do we protect innovation culture during political tensions/disruptions? The quicker the disruption, the longer it tends to hang around.

Andrew Gilden: what is the actual compensation system and measures of career advancement in Slovakia? Do grants matter? If I don’t get rewards, then should I have to deal with some jerk in another department?

A: In Slovakia, one interviewee’s institution gives money for patents, but was going to take it away b/c people were gaming the system by getting useless patents. Practical implementation isn’t there. We need to get people thinking about downstream uses, not just immediate results.

Sean Pager: Institutions talk about wanting to promote interdisciplinary collaboration but rarely do much about it; some specifically targeted grants. Also teaching: can be hard to teach an interdisciplinary class, but that’s one way to reach people in other fields.

A: yes, and also in tenure we get credit; structure isn’t there. Also some react: we just got academic freedom, so don’t tell me what to do.

Peter Yu: is this a setback (more dangerous, as in Russia) or a legacy? Think about how other people are motivated in the same system, e.g. post office workers.

Felicia Caponigri: Italy as contrast: researchers/members of bureaucracy think of themselves as having one space for one person. To write/get credit you have to ID the part of a coauthored piece that you wrote, which is the opposite of coauthoring. Maybe it’s a civil law thing more than a post-communist thing?

RT: Patent example made me think of the accusations that China was rewarding US TM registrations with bonuses, leading to a bunch of junk; that wasn’t the whole story (Amazon might have been more important), but they stopped giving the bonuses. Maybe the solution can’t be internal to the field; maybe it has to be about the overall economic growth potential of the economy as well as the level of social trust.

Peter Yu, Texas A&M University School of Law, Twists and Turns in the TRIPS Journey

Before TRIPS, fewer rights were recognized internationally. Remedies/enforcement issues have not been as successful. Do developed countries have a comparative advantage? TRIPS sought to promote rule of law/dispute resolution mechanism. Hope was international rule of law. Still have WTO appeals and arbitration, but until we’re willing to support an independent body it won’t function again?

One position: TRIPS doesn’t result in mutual gain but rewards for multinational companies. Patent, TM registrations—developing countries have been doing quite well. PCT users—top is China; Madrid TM registrations, China is 3d. India is 9^th in patents, 22^nd in TM. Russia 25^th and 13^th respectively. China, Malaysia, India, Thailand, Brazil in top 50 of world innovation index. TRIPS boomerang (Jerome Reichmann): when you force countries to raise their own standards, they learn how to take advantage of the global system. Many developing countries want to protect their own IP and most of all to take down trade barriers, but the return of unilateral trade sanctions from the US means the agreements were not successful in preventing that. Even before Trump, Section 301 meant there wasn’t a full success. Transition periods keep getting extended for LDCs.

Investment requires imitative capacity + large enough market. If a developing country doesn’t have both of those, they won’t get investment no matter what the legal regime.

No denying good result that TRIPS put IP on a pedestal. When people make policy decisions, they now think about IP. Ordinary citizens might know something about IP. Second: Gone to more complex regimes: WIPO as well as WTO, and then a bunch of smaller regimes like ECPA. That will stay for a long while b/c one has a lot of technical expertise (WIPO) and one has dispute resolution mechanisms (WTO). TRIPS negotiators deliberately avoided tackling new technologies—internet/digital communications, emerging when negotiated; biotech—could have done more than just a single provision. TRIPS/WTO unlikely to tackle AI or genetic engineering, leaving room for WIPO.

Final questions: would TRIPS negotiators have anticipated current IP developments? No. So should we be historical or evolutionary in our approach? Panels like to follow the Vienna Convention on the law of treaties, but if questions weren’t anticipated, should we be historical?

Can TRIPS be amended? Wouldn’t be negotiated today. Not easy to amend, but there are some small possible tweaks like periodic review; more emphasis on innovation instead of IP; more regulatory coordination w/regional entities.

Can TRIPS withstand growing international rivalries? We’ve seen worse—wars, pandemic. TRIPS isn’t good at responding to those crises, but it can withstand it.

Q: say more about small tweaks. What is a small tweak?

A: TRIPS enshrined 90s standards, but the discourse of IP has changed a lot. Innovation focus rather than “IP” as such. Might need more provisions. More coordination with other regimes.

RT: Does future proofing mean more rules or fewer? I’m thinking of how fast TDM training exceptions were adopted across the globe, and then basically 2 years later “generative AI” emerged and lots of people said “no, not like that.”

A: more flexibilities, more policy space. More rules = more difficult for lots of countries. A lot of developing countries lack institutional capacity to handle complex rules. More opportunities for people to come in from MNCs or donor orgs or developed countries to deliver systems that get even further away from what IP rules are supposed to do.  

One scenario: US withdraws from WTO and China steps in to be leader. If that’s the case, resources will be given like Belt and Road initiative. That’s concerning for a lot of countries. Other possibilities: WTO suffers same fate as other UN orgs and has to pull back.

China: We are moving from patents and TMs to trade secrets as comparative advantage. Debate shifted from patents to confidential information—interesting for emerging countries.

Pager: more investor state dispute resolution as a model?

A: you can appeal WTO panel decision, but you have to set up the panel; most countries are not happy.

Dr. Gururaj Devarhubli & Dr. Taruna Jakhar (Zoom), Nirma University, Institute of Law, Ahmedabad, Analyzing Cross–border Regime for Enforcing Copyright in the Age of Digital Piracy: A Comparative Study of Music Piracy in India and China       

Focused on emerging economies/major content markets with contrasting enforcement landscapes. Focused on music piracy due to global reach, high revenue loss, and evolving modes (torrents, streaming, mobile apps, p2p platforms, Telegram, etc.). Shift from physical to digital; rise of private streaming leaks. Use of VPNs, mirror sites, cloud storage.

Cross-border enforcement issues: territoriality of ©; lack of unified takedown procedures; inadequate int’l coordination. Key cases in India allow dynamic injunctions (2019) and dynamic-plus (2023); super-injunction against piracy on websites and applications including Facebook etc. (2025). Challenges: slow litigation, ISP noncompliance, weak criminal enforcement.

China comparison: multiple enforcement agencies including IP courts. Administrative (faster) and judicial (more legal clarity). Challenges: over-reliance on administrative path; selective enforcement; trade tensions influence compliance.

Both are TRIPS compliant and WIPO signatories; both struggle w/online enforcement due to tech limitations; both involve private sector in enforcement; piracy persists due to affordability gaps and weak deterrence.

Tech/private actors: India relies on dynamic injunctions, court monitored takedown notices, w/poor enforcement. China: Tencent and NetEase have invested in AI-based piracy detection. Globally: YT Content ID, Spotify watermarking, Apple music anti-leak policies. Problems: inconsistent enforcement by platforms, small creators lack access to tech tools, and cross-platform leaks remain untraceable.

Who acts when content is hosted abroad? Pirates use VPNs and aliases; lack of global consensus on enforcement standards; while Indian dynamic injunctions have extended to foreign domains, Chinese takedown orders are not enforceable in India.

Recommendations: bilateral cooperation agreements; platform accountability standards; collective licensing expansion; cross-border evidence protocols, and harmonized safe harbor provisions. Need joint enforcement by streaming platforms/music labels; promotion of fair pricing models to reduce demand; strengthening int’l digital IP diplomacy through WIPO.

Yu: should you drop China from your paper? US Special 301 reports claims that legality of content online for China is 96%--a lot of content is licensed. The issue they still have is that the licensing rates are extremely low because Tencent has a monopoly. If you want to say there’s a big digital piracy problem on Chinese online platforms, the data will be from 5-10 years ago.

RT: how different is the practical legal situation from US or Europe? Here, Litigation isn’t super fast; companies still whine about playing whack a mole b/c of the DMCA notice and takedown process; overseas sources don’t comply with takedowns and the US is a big enough market that it’s worth overseas entities creating targeted sites, and we don’t have dynamic injunctions against third parties; litigation is expensive and if not as slow as India not very fast compared to pace of commercial life. Just saw Bechtold’s excellent paper on Content ID’s gaps—tech solutions are very limited. The key question seems to be whether licensed access can be simple and cheap enough to compete with piracy. 0% piracy would require the elimination of humankind; that’s not needed for sufficient incentives and a thriving industry.

A: Doing pay per view on general video platforms could be a game-changer.