Intellectual Property and Security: A Preliminary Exploration

Abstract

This article explores the relationship between the concept of ‘security’ and intellectual property. Security today encompasses traditional state-centric, military concerns (such as prevention of external aggression) to ‘human security’ concerns, which places individuals rather than states as the main objects in need of security. The intellectual property system, consisting of copyright and related rights and industrial property, seeks to encourage creativity and inventiveness, which are necessary components of the economic, cultural and technological well-being of countries. This preliminary examination reveals that national security concerns and questions of ‘ordre public’ have permeated international intellectual property treaties since the late nineteenth century. In today's context of international struggle against wanton terrorism (and possibly nuclear terrorism), of geo-economic competition among countries and of the struggle to become free from the shackles of poverty, intellectual property has emerged as a critical factor for individual, national and international security. This paper examines the relationship between security and particular aspects of intellectual property – patents, patent information and trade secrets.

ACKNOWLEDGEMENT

The author wishes to thank Mr. Tshimanga Kongolo of the WIPO Worldwide Academy for his comments and criticisms. The views expressed in this article are those of the author only.

Notes

1. For a very brief overview of intellectual property see WIPO, What is Intellectual Property, WIPO Publication No.450 (Geneva: WIPO, 2003); and for a more detailed survey see WIPO, Handbook on Intellectual Property, WIPO Publication No.489 (Geneva: WIPO, 2004).

2. For a discussion on the economic impact of intellectual property see Kamil Idris, Intellectual Property: A Power Tool for Economic Growth. WIPO Publication No.888 (Geneva: WIPO, 2003); and Shahid Alikhan, Socio-Economic Benefits of Intellectual Property in Developing Countries (Geneva: WIPO, 2000). On the valuation of intellectual property assets see Baila H. Caledonia, ‘Assessing a Company's Most Valuable Assets: Conducting an Intellectual Property Audit’, 1 May 2996 <http://www.cll.com/articles/article.cfm?articleid=29>.

3. See Barry Buzan, People, States, and Fear: the National Security Problem in International Relations (Brighton: Wheatsheaf, 1983; Chapel Hill: University of North Carolina Press, 1983; New Delhi: Transasia Publishers, 1987); and B.G. Ramcharan, Human Rights and Human Security (Dordrecht: Kluwer Law International, 2002).

4. See Jessica Stern, ‘Dreaded Risks and the Control of Biological Weapons’, International Security, Vol.27, No.3 (Winter 2002/03), pp.89–123.

5. The WIPO acknowledged that it ‘recognizes that intellectual property rights may be of relevance in the field of trade as well as environmental policy’. Statement by the World Intellectual Property Organization on Intellectual Property, Biodiversity and Traditional Knowledge to the Committee on Trade and Environment of the TRIPS Council, WT/CTE/W/182; IPC/C/242, 6 Feb. 2001.

6. For a comprehensive overview of the changing nature of security studies see Steven Miller, ‘International Security at Twenty Five’, International Security, Vol.26, No.1 (Summer 2001), pp.5–39.

7. See Roland Paris, ‘Human Security: Paradigm Shift of Hot Air?’ International Security, Vol.26, No.2 (Fall 2001), pp.87–102.

8. Ibid., p.87. Paris addresses the difficulties of the expansive scope of the concept. For policy makers, ‘the challenge is to move beyond all-encompassing exhortations and to focus on specific solutions to specific political issues’ (p.92). For academics, ‘the task of transforming the idea of human security into a useful analytical tool for scholarly research is also problematic’ as it is ‘far from clear what academics should even be studying’ (p.93). Some scholars have attempted to identify key indicators, such as poverty, health, education, political freedom and democracy.

9. UNDP, Human Development Report, 1994 (New York: Oxford University Press, 1999), pp.22–3.

10. Sadako Ogata and Johan Cels, ‘Human Security’, Global Governance, Vol.9, No.3 (July–Sept. 2003), p.275.

11. Theodore Sorensen, ‘Rethinking National Security’, Foreign Affairs (Summer 1990); Fred Bergsten, ‘The World Economy After the Cold War’, Foreign Affairs (Summer 1990).

12. Ogata and Cels, ‘Human Security’, p.279.

13. ‘Foreword’, International Security, Vol.1, No.1 (Summer 1976), p.2.

14. Steven Miller, International Security (Summer 2001), pp.5–39 at p.8.

15. Nuno Pires de Carvalho, The TRIPS Regime of Patent Rights (London, The Hague, New York: Kluwer Law International, 2002), p.170.

16. Ibid.

17. Case Law of the Boards of Appeal, Quoted in Carvalho, The TRIPS Regime of Patent Rights, pp.170–71.

18. Ibid., p.171.

19. Ibid.

20. Jordi Molas-Gallart, ‘Dual Use Technologies and the Different Transfer Mechanisms’, Conference Paper, The International School on Disarmament Research on Conflicts (ISODARCO) 19th Summer Course, 26 Aug.–2 Sept. 1998. Complex Product Systems Innovation Center. CoPS Publications No.55.

21. WIPO, General Information on the Seventh Edition of the International Patent Classification (IPC). WIPO Publication, No.409 (Geneva: WIPO, 2000).

22. It should be noted that defence R&D is much more specific while commercial R&D is much more diffuse.

23. GAO, Intellectual Property: Industry and Agency Concerns Over Intellectual Property Rights, GAO-2-723T 10 May 2002. Submitted to House of Representatives, Committee on Government Reform, Subcommittee on Technology and Procurement Policy, hearing on Intellectual Property and Government R&D for Homeland Security, 10 May 2002. Serial No. 107-181 (Washington: US Government Printing Office, 2003).

24. Potomac Institute for Policy Studies (PIPS), Dual Use Project Report, 21 July 1996 (PIPS-96-3), p.10.

25. MCTR members today include Argentina, Australia, Austria, Belgium, Brazil, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, Russian Federation, South Africa, Spain, Sweden, Switzerland, Ukraine, United Kingdom and the United States.

26. It comprises Argentina, Australia, Austria, Belgium, Canada, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Slovak Republic, South Korea, Spain, Sweden, Switzerland, Turkey, and United Kingdom.

27. AG, Control list of dual-use chemical manufacturing facilities and equipment and related technology <http://www.australiagroup.net/control_list/dual_chemicals.htm>.

28. See Isaiah Wilson III, ‘Today's Profits, Tomorrow's Losses: The Commercialization of US Arms Export Reform and Its Implications on National and Regional Security’, paper prepared for presentation to the Council on Foreign Relations Study Group on ‘The Geo-Economics of Military Preparedness’, New York Quarters, 20 April 2001.

29. Ibid., p.3.

30. Jeremy Clayton, ‘Export Controls Must Meet Tomorrow's Challenges, Not Yesterday's, Urgent Action Needed to Preserve and Enhance International Security and Free Trade’, Address at the IBC Conference ‘The Globalization of Export Controls and Sanctions’, 11 Nov. 2002 <http://www.dti.gov.uk/export.control/pdfs/jcspeech.pdf>.

31. Ibid.

32. Ibid.

33. Christopher Jensen, ‘Are you Carrying a Trade Secret?’, The Industrial Physicist, American Institute of Physics (Oct./Nov. 2001), p.31.

34. USTA, Section 1(4).

35. Howard Eisenberg, ‘Patents vs. Trade Secrets’, Patent Law You Can UseTM <http://www.chernofflaw.com>.

36. Employees, when they leave a company, may naturally feel that their skills and knowledge are valuable elsewhere. Employees who have had access to confidential technology or business information and leave their jobs to work for a competitor – or to enter into business in competition with their former employer – must consider several critical issues. Employment agreement: does it bind them to confidentiality? … Even where no written agreement, the law may imply an obligation not to use or disclose an employer's confidential information. Employee who develops the confidential info: Is it his/hers also or does company have exclusive right? Depends on local litigation.

37. Jensen, ‘Are you Carrying a Trade Secret?’, p.31.

38. Marc Friedman and Kristen Papathomas, ‘Primer on Trade Secrets’, Goodwin Procter <http:/www.goodwinprocter.com>.

39. Francois Dessemontet, ‘Protection of Trade Secrets and Confidential Information’, paper published on website of the University of Lausanne, <http://unil.ch/cedidac/articles/Protectiontradesecrets.pdf>(Mr. Dessemontet is Professor at the University of Lausanne and Fribourg), p.6.

40. Ibid.

41. Dessemontet, ‘Protection of Trade Secrets’, p.3.

42. WIPO, Model Provisions on Protection Against Unfair Competition. WIPO Publication No.832 (1996), p.52.

43. Ibid.

44. Ibid.

45. Peter Schweitzer, ‘The Growth of Economic Espionage: America is Target Number One’, Foreign Affairs, Vol.75, No.1 (1996), p.9.

46. Eugene Poteat, ‘The Attack on America's Intellectual Property: Espionage after the Cold War’, The Bent Of Tau Beta Pi (Winter 2001). Poteat a former technical intelligence officer of the CIA and founder of the Association of Former Intelligence Officers.

47. See Theodore Moran, ‘International Economics and National Security’, Foreign Affairs, Vol.69, No.5 (Winter 1990/91); and David Boren, ‘The Intelligence Community: How Crucial?’, Foreign Affairs, Vol.71, No.3 (Summer 1992).

48. Schweitzer, ‘The Growth of Economic Espionage’, p.10.

49. Poteat, ‘The Attack on America's Intellectual Property’, p.12.

50. Schweitzer, ‘The Growth of Economic Espionage’, p.11.

51. Office of the National Counterintelligence Executive (ONCE), Annual Report to Congress on Foreign Economic Collection and Industrial Espionage-2002. NCIx 2003-10006, Feb. 2003, p.1.

52. GAO, Economic Espionage: Information on Threat from U.S. Allies, GAO/T-NSIAD-96-114, 28 Feb. 1996.

53. Ibid., p.1.

54. Poteat, ‘The Attack on America's Intellectual Property’, p.19.

55. Lt. Col. Philip Stewart, Role of U.S. Government in Industrial Espionage, Executive Research Project, S24 (The Industrial College of the Armed Forces, National Defense University, Washington, DC, 1994).

56. Poteat, ‘The Attack on America's Intellectual Property’, p.16.

57. Stewart, Role of U.S. Government in Industrial Espionage, p.12.

58. Ibid., p.13.

59. ‘John Mangels, ‘Scientist Gets Probation in Clinic Espionage Case’, The Plain Dealer, 29 May 2003 <http://www.cleveland.com>.

60. Stewart, Role of U.S. Government in Industrial Espionage, p.14.

61. Poteat, ‘The Attack on America's Intellectual Property’, p.18.

62. John Wilke, ‘Two Silicon Valley Cases Raise Fears of Chinese Espionage’, The Wall Street Journal (Online), 15 Jan. 2003 <http://www.economicespionage.com/wsj.htm>.

63. ONCE, Foreign Economic Collection and Industrial Espionage-2002, pp.1–2.

64. Schweitzer, ‘The Growth of Economic Espionage’, p.11.

65. U.S.C. 18 § 1831.

66. U.S.C. 18 § 1832.

67. See Chris Carr, Jack Morton and Jerry Furniss, ‘The Economic Espionage Act: Bear Trap or Mousetrap?’, Texas Intellectual Property Law Journal, Vol.8, No.2 (2000), pp.160–209.

68. Ibid., pp.173–4.

69. Ibid., p.175.

70. Ibid., p.180.

71. Ibid., p.197. The authors also note the interesting fact that most of the cases were brought under section 1832 (domestic activity section) and not 1831 (foreign activity section). Ibid., p.198.

72. Schweitzer, ‘The Growth of Economic Espionage’, p.10.

73. Indonesia passed Law No.30/2000 on 20 December 2000 concerning trade secrets. Thailand passed the Trade Secret Act 2002 (Trade Secret Act B.E. 2545), which came into force on 22 July 2002.

74. A/RES/54/50, ‘Role of science and technology in the context of International Security and Disarmament’, 23 Dec. 1999. See related resolution, A/RES/54/49, ‘Developments in the field of information and telecommunications in the field of international security’, 23 Dec. 1999 and A/RES/53/70, 4 Dec. 1998.

75. United Nations, ‘Role of science and technology in the context of International Security and Disarmament’, A/RES/54/50, 23 Dec. 1999. See related resolution, A/RES/54/49, ‘Developments in the field of information and telecommunications in the field of international security’, 23 Dec. 1999 and A/RES/53/70, 4 Dec. 1998.

76. Carvalho, The TRIPS Regime of Patent Rights, p.269.

77. Some developing countries have opted for additional transition period under Article 65.4 of the TRIPS Agreement, allowing them until 1 January 2006 (Cuba, Egypt, India, Madagascar, Pakistan, Qatar, United Arab Emirates). For LDC members the TRIPS Agreement provides a transition period until 1 January 1996. Under Paragraph 7 of the Doha Declaration LDC country members will not have to implement or apply the TRIPS Agreement's provisions concerning patents and data protection for drugs before 1 January 2016.

78. Ibid., p.268.

79. Carvalho, The TRIPS Regime of Patent Rights.

80. Communication from the European Communities and their member states. Concept Paper Relating to Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health. WTO Document IP/C/W/339, 4 March 2002.

81. Republic of Egypt, Law No.82 of 2002.

82. Republic of Tunisia, Law No.2000-84 of August 2000.

83. Republic of Morocco, Law No.1-00-91 of 15 February 2000.

84. GAO, ‘Export Controls: Issues Related to the export of Communications Satellites’, Statement for the Record by Katherine Schinasi, Associate Director, Defense Acquisitions Issues, National Security and International Affairs Division. GAO/T-NSIAD-98-211; GAO, ‘Export Controls: Some Controls Over Missile-Related Technology Exports to China Are Weak’, GAO/NSIAD-95-82; and US Department of Commerce (Bureau of Industry and Security), US Commercial Technology Transfers to The People's Republic of China <http://www.bxa.doc.gov>. More generally, see Kalpana Chittaranjan, ‘Leakage of US Nuclear Secrets’, Strategic Analysis, Vol.XXIII, No.4 (New Delhi: IDSA, July 1999) <http://www.ciao.net.org/olj/sa/sa_99chk04.html>and Savita Pande, ‘The Challenge of Nuclear Exports Control’, Strategic Analysis, Vol.XXIII, No.4 <http://www.ciao.net.org/olj/sa/sa_99pns.02.html>.