Metadata of the chapter that will be visualized online

Chapter Title US Global Hegemony in Intellectual Property and the Politics of Piracy

and Resistance
Copyright Year 2016
Copyright Holder Springer Science+Business Media Singapore
Corresponding Author Family Name Ballano
Particle
Given Name Vivencio O.
Suffix
Division
Organization/University St. Paul University
City Quezon City
Country Philippines
Email [email protected]
Abstract To provide a global context in understanding the persistence of media piracy in
emerging economies such as the Philippines and Vietnam, this chapter broadly
describes the ongoing politics of hegemony and resistance in the global
intellectual property (IP) trade between the United States (USA) and China
and economies of the Association of Southeast Asian Nations (ASEAN).
Primarily relying on documentary evidence and applying the hegemony,
relational, and social resistance theories, it investigates briefly how the USA
gains hegemonic power in the field of IP through the cultural mechanism of
law in multilateral, regional, and bilateral free trade agreements (FTAs) with
the aid of US-dominated multilateral institutions. It paints a global economic
order with the USA occupying a privileged position at one end as the leading
producer and exporter of IP goods and services in the emerging global creative
economy, particularly in the fastest-growing Asia Pacific region, and China
and some members of the Association of Southeast Asian Nations (ASEAN)
having emerging economies with trading ties with China such as the Philippines
and Vietnam opposing this hegemony through piracy and resistance strategies
on the other end. Contrary to the popular assessment of jurisprudence- and
industry-led enforcement debates which paint the piracy problem as simply
a case of theft and criminality or “cracks in law enforcement system,” this
chapter argues otherwise and views piracy, particularly media piracy, as a
form of social resistance or the “weapons of the weak” (Scott 1985) of IP-
consuming countries against the US control of the global IP trade. For resisting
countries, stricter IPR regime stifles technology transfer and harms their
informal economy which generates national income and employment for the
poor, unemployed, and migrants. Seen from this perspective, media piracy in
the Asia Pacific region and the ASEAN, particularly in the Philippines and
Vietnam, is more than just a theft of intellectual creation but a manifestation of
an ongoing resistance against the US hegemony in the global copyright trade
in the world.
Keywords (separated Power - Hegemony - Piracy - Law - Social resistance - International trade -
by “ - ”) Free trade agreement - Asia Pacific
 Chapter 2 1

US Global Hegemony in Intellectual Property 2

and the Politics of Piracy and Resistance 3

[AU1] 2.1  Understanding Power and Hegemony 4

Recognizing the centrality of power in any socioeconomic phenomenon has always 5

been at the heart of the sociological analysis. For Anthony Giddens (1985), all 6
social systems are “power systems” and thus power is a fundamental concept in the 7
social sciences. Power for him is domination in terms of acquisition and use of 8
resources or capabilities and expressed in struggles and subordination: Power is 9
generated in and through the reproduction of structures of domination (Giddens 10
1984). In the modern world, the most generalized and integrated structure of domi- 11
nation, both spatially and temporally, is said to be that of capitalism. Capitalism is 12
not a thing, a system, or a model but, first and foremost, a process and a cluster of 13
structures of systematic domination. And these structures of domination are not 14
attributes of actors but “matrices of social power” that arise from a dominant mode 15
[AU2] of interaction (Stewart 2001). As a matrix of social domination, capitalism under- 16
goes a historical structuring and modernization that implies subordination of social 17
forms to the pursuit of a single goal of appropriating profit or the accumulation of 18
capital (Stewart 2001, p. 67). 19
[AU3] For conflict, scholars who use materialist models argue that power is central in 20
the formation of capitalism and in the ability of its elites to transform economic 21
institutions for their own advantage (Chirot 1985; Collins 1986; Hall 1985). In its 22
late development, some authors argued that capitalist accumulation is linked to the 23
extraction of surplus value from the Global South and the use of military 24
Keynesianism to support capital accumulation in the core (Frank 1967; O’Connor 25
1973; Hooks 1991). But with its current global brand which Castells (2009) calls as 26
“informational capitalism,” accumulation has shifted in form and focus: from the 27
physical plant to the knowledge embodied or used in that plant (Warshofsky 1994). 28
In other words, accumulation in today’s capitalism is not so much on acquiring 29
physical goods and services but of the knowledge, copyright, patent, trade secret, or 30
the intellectual property behind the creation of these goods and services. 31

© Springer Science+Business Media Singapore 2016 33

V.O. Ballano, Sociological Perspectives on Media Piracy in the Philippines and
Vietnam, DOI 10.1007/978-981-287-922-6_2
 34 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

32 To account how states accumulate power and capital in today’s global capitalist
33 economy, a remarkable amount of writings has been published in recent years to
34 apply the concept of “hegemony” in order to understand domination in interna-
35 tional relations and trade. Domination in the current informational capitalism is
36 said to employ a “diffused” rather than an overt type of power and coercion which
37 suits to what critical scholars understand as hegemony. The concept of hegemony
38 has its roots in the work of the Italian Marxist Antonio Gramsci who argued that
39 dominant groups in society maintain power and protect common class interests, not
40 through coercion but through the use of alliances with members of the elite and
41 cultural institutions such as schools, law, the media, and the church to create a
42 compatible version of reality which favors elite interests. Heavily influenced by
43 this Gramscian view, Stuart Hall (1976) who further developed the concept of
44 hegemony in cultural studies sees it as referring to “a situation in which a provi-
45 sional alliance of certain social groups can exert ‘total social authority’ over other
46 subordinate groups by ‘winning and shaping consent so that the power of the domi-
47 nant classes appears both legitimate and natural’” (Hall 1977). Simply put, “hege-
48 mony means moral and philosophical leadership, leadership attained through the
49 active consent of the major groups in society (Bocock 1986, pp. 27–94). As already
50 mentioned in the previous chapter, Raymond Williams (1973) defines it as “the
51 central, effective and dominant system of meanings and values, which are not
52 merely abstract but which are organized and lived…” and “which are experienced
53 as practices which appear as reciprocally affirming” (Williams 1973, p. 9).
54 Hegemony therefore is a “diffused type of power that ‘naturalizes’ a social order,
55 an institution, or even an everyday practice so that ‘how things are’ seems inevita-
56 ble and not the consequence of particular historical actors, classes, and events”
57 (Lazarus-Black and Hirsch 1994, p. 7).
58 Applying a materialist interpretation and expanding the scope of hegemony
59 to interstate relations, Wallerstein (1991) understands hegemony as referring to
60 that situation in which the ongoing rivalry between so-called great powers is so
61 unbalanced that one power can largely impose its rules and wishes (at the very
62 least by effective veto power) in economic, military, diplomatic, and even cul-
63 tural arenas (cited in Stiles and Akaha 1991, pp. 428–289). And international
64 domination can either be done by a powerful state either through market mecha-
65 nism or coercive force associated with an empire (Wallerstein 1974; Arrighi
66 1994; Chase-Dunn & Hall 1997). Robert Cox, the first to establish a crucial
67 route to hegemony in international relations, sees hegemony as initially estab-
68 lished by social forces occupying a leading role within a state but is projected
69 on a world scale (Cox 1981, p. 139). In other words, hegemony in the global
70 stage may be established within a state and gradually projected to the world to
71 include other states. Hegemony in this sense involves the domination of one
72 state–society complex—and in this case the USA—which becomes the center of
73 the dominant mode of (capital) accumulation and is able to draw in other states
[AU4]
74 and societies to participate in this accumulation (Saul 2012). And with the rise
75 of globalization and informational capitalism, contemporary hegemony occurs
76 not so much in economic and military fields but in the cultural realm of
 2.2  US Hegemony in Intellectual Property Trade 35

i­nnovation and intellectual property (IP) using the cultural mechanism of law 77
and jurisprudence to gain consent from the dominated economies. 78

2.2  US Hegemony in Intellectual Property Trade 79

If the currency of the old capitalist social order is gold, the new currency of the new 80
informational capitalism is said to be IP, that is, ownership of ideas, industrial designs, 81
trademarks, copyright, and other creative products and services based on human cre- 82
ativity and innovation. “Creativity, in the form of ideas, innovations, and inventions, 83
has replaced gold, colonies, and raw materials as the wealth of nations” (Warshofsky 84
1994). Innovation, both at the individual and group level, has been increasingly 85
acknowledged by many as the true wealth of nations in the twenty-first century: “The 86
creative economy has become a powerful transformative force in the world today and 87
one of the most rapidly growing sectors of the world economy, not just in terms of 88
income generation but also for job creation and export earnings” (UNESCO & 89
UNDP, Creative Economy Report 2013, p. 15). A greater proportion of the world’s 90
intellectual and creative resources are now being invested in culture-­based and 91
IP-intensive industries. The concept of intellectual property which was used to be a 92
[AU5] specialist or an arcane subject has now moved center stage in the economy (Fig. 2.1). 93
The American hegemony in IP trade did not arise instantly. It started gradually 94
with the leading role of US IP industries in creating a new IPR regime in the US 95
economy which soon projected on a worldwide scale in the 1980s with the opening 96
of economies of developing countries through free trade and reduction and elimina- 97
tion of tariffs in the General Agreement on Tariffs and Trade (GATT), a multilateral 98
agreement signed by 110 countries around the world. Countries who signed this 99
agreement also agreed to the creation of the World Trade Organization (WTO) and 100
to GATT’s Trade-Related Aspects of Intellectual Property Rights agreement 101
(TRIPS), a multilateral agreement which requires member countries to protect IP 102
goods and services from counterfeiting and piracy. Historically, the USA was the 103
first country to realize how greatly its economy depends on IP as a source of national 104
this figure will be printed in b/w

Fig. 2.1  Creativity, in the form of ideas, innovations, and inventions, has replaced gold, colonies,
and raw materials as the wealth of nations (Warshofsky 1994) (Photo: “Think Ideas Indicates
Innovations Consider and Creativity” (Image courtesy of Stuart Miles at FreeDigitalPhotos.net))
 36 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

105 income and employment. Today, practically almost all sectors of the US economy
106 rely on some form of IP, because virtually “every industry either produces it or uses
107 it.”1 Thus, as early as the 1970s when the world was reeling from OPEC’s oil price
108 increases, the USA first saw the need of a new foreign policy for IP, for the owner-
109 ship of ideas that suit American interest (Warshofsky 1994). From the 1970s to the
110 early 1990s, there was a widespread belief that the US economy had declined and
111 had been overtaken by Japan and that this decline can only be halted by a renewed
112 emphasis on technological innovation to stimulate economic growth (Landes and
113 Posner 2003, p. 2). The promotion and protection of American IP exports gradually
114 emerged as the most viable response to this decline. Riker (2012) explained that
115 there are strong indications that improvements in IPR protection in US export mar-
116 kets could increase export revenues and income from direct investment abroad and
117 increase royalties from licensing US knowledge capital or from a combination of
118 these three (p. 288). With this realization, the US government shifted its economic
119 focus from the traditional manufacturing and exportation of “hard” and “heavy”
120 goods to “soft” and “liquid” goods and services of the creative economy which fit
121 into the current globalization trends characterized by “liquidity” and mobility of
122 things (Ritzer 2010). While China was busy converting its centrally planned econ-
123 omy into a market economy in the mid-1980s, the USA was preoccupied with har-
124 nessing its creative economy during this period, laying the foundation of a new
125 economic infrastructure based on human innovation and IP.
126 To protect and accelerate the growth of this newfound “gold” in the US economy,
127 the government, influenced by the intense and sustained corporate lobbying of top
128 IP pharmaceutical multinationals, gave IP protection a special legislative push.
129 Since the 1980s, the US Congress introduced a series of legal reforms and innova-
130 tions in IPR to curb piracy and counterfeiting at home and abroad. As a result, the
131 profitability of American IP companies grew rapidly. Between 1987 and 1999, for
132 instance, a period of only 12 years, the annual US receipts from foreign IP trade rose
133 from $10 billion to 36.5 billion. American exports in high-tech goods such as com-
134 puters and electronic products amounted to $190 billion out of the total exports of
135 $690 billion (28%) (Landes and Posner 2003, p. 3). The supremacy of IP in the US
136 economy became apparent when nearly 61% of American exports, $775 billion,
137 come from IP-intensive industries in 2010.
138 The export of copyright-based industries such as films and computer software
139 also increases to $89 billion in 2001. With sustained efforts of the US government
140 to protect US goods and services from counterfeiting, the dramatic growth of IP
141 trade at home and abroad continued to intensify in the early 2000s (Landes and
142 Posner 2003 p. 3). In 2010, the total merchandise exports of the US IP-intensive
143 industries has already reached a staggering $775 billion, accounting for 60.7 % of
144 total US merchandise exports and for 40.0 million direct and indirect jobs or 27.7 %
145 of all jobs in the USA.2 But in 2012, the IIPA estimated that the value added by the

1
 Intellectual Property and the U.S. Economy: Industries in Focus (March 2012), p. vi. Available at
http://www.uspto.gov/sites/default/files/news/publications/IP_Report_March_2012.pdf
2
 Intellectual Property and the U.S. Economy: Industries in Focus (March 2012), p. viii. Available
at http://www.uspto.gov/sites/default/files/news/publications/IP_Report_March_2012.pdf
2.3  Law as a Maker of Hegemony 37

core copyright industries to US GDP exceeded $1 trillion dollars ($1015.6 billion) 146
for the first time, accounting for 6.48 % of the US economy, and the value added by 147
the total copyright industries to GDP exceeded $1.7 trillion ($1765 billion), account- 148
ing for 11.25 % of the US economy (Siwek 2012, p. 2). 149
In the realm of patents, the US IP industries also showed dominance in the US 150
economy. In patent medicine, four (7) out of the top ten (10) pharmaceutical compa- 151
nies in the world are American multinationals with Johnson & Johnson and Pfizer 152
occupying the top spots with revenues of US$61.9 billion and US$50.01 billion, 153
respectively.3 In computer technology, the USA is overtaking other countries in 154
terms of inventions in computer products and applications. The global leader in 155
technology patent, the International Business Machines (IBM), for instance, has 156
been a consistent number one patent creator in the world for a long time, amassing 157
more US patents than any other companies in the last 21 years. In 2013 alone, it cre- 158
ated a total of 6809 patents, with more than 30 % of these coming from overseas.4 159
The significant contribution of the IP industries to the US economy has pushed 160
the US government to prioritize IPR protection at home and abroad in order to curb 161
counterfeiting and piracy of American IP products. The strengthening of IPR pro- 162
tection abroad aims to build a global IP legal regime which makes it difficult for 163
counterfeiters and infringers to hijack the exports of US IP multinational companies 164
(MNCs), the new key drivers of the American economy. The grand scheme of the 165
USA includes the global institutionalization of the TRIPS and its own version of 166
IPR protection which can dominate its top economic competitors and leading IP 167
counterfeiters such as China, Brazil, India, Russia, and other piracy-laden ASEAN 168
countries. To achieve this end without manifest opposition from developed and 169
developing countries around the world, the USA has to use a consensual power 170
judiciously in the diplomatic front through the cultural institution of law as a mech- 171
anism to shield its hegemonic agenda of dominating the global IP trade as well as to 172
project an image that the American style of IPR protection serves the economic 173
interest of all nations in the world. 174

2.3  Law as a Maker of Hegemony 175

All hegemonic relations are assumed to be based on domination and consensus 176
through formulation and manipulation of existing rules. But domination cannot take 177
place overtly without manifest resistance. Thus, in order to avoid open and active 178
opposition, domination must get itself to be misrecognized. To achieve this, the 179
effects of domination must always disguise themselves as moral relations (Mitchell 180
1990, p. 550). In the field of IP, “moral truths” on the sanctity of rights and private 181
ownership, particularly on the rights of the author, inventor, and creator of IP goods, 182

3
 See “Top Ten Largest Pharmaceutical Companies in the World 2013” at http://www.toptenstip.
com.
4
 See Barinka, “IBM Wins Most U.S. Patents for 21st Year in a Row” at http://www.bloomberg.
com.
 38 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

183 are vigorously portrayed by the dominant country such as the USA in its campaign
184 against piracy to hide domination in the global IP trade arena. In this sense, the law
185 becomes a perfect tool of misrecognition of IP domination by the leading state to
186 pursue and hide its hegemonic agenda. The power of law to create a consensual
187 view and to protect dominant ideologies makes it a powerful hegemonic tool for the
188 IP leader like the USA to subtly impose its own version of the global IP trade and
189 protection in the world (Fig. 2.2).
[AU6]
190 Since“[l]aw is all over” in society (Sarat 1990), it has the power to constitute
191 hierarchies and relationships that are at the heart of the social fabric of society so
192 that it catches people in ways that are “hardly noticed (Yngvesson 1993, p. 120).
193 Law also has the power to fix social relations and sideline other forms of knowledge
[AU7]
194 (Smart 1989) which makes it a dominant tool of power. For critical legal scholars,
195 law may appear from the outside as neutral and just, but from the inside its interest
196 bends toward the lawmaker. And as part of the regulation system in society, law
197 aims to fix and represent social reality in a stable and immutable way based on the
198 interest of those who created them (Moore 1978, p. 40). Thus, every legal project is
199 necessarily a social and political project. Peller (2011) argued that legal discourses
200 are actually discourses of power. They contain the ideology of dominant groups in
201 society. Seen from this perspective, the legal discourses on stricter IPR protection
202 and the criminality of piracy are therefore discourses of power that reflect the inter-
203 ests of those who created them. The prominent position of law in the hierarchy of
204 knowledge makes it a powerful hegemonic tool in gaining public consent and con-
205 sensus without manifest coercion. The educative function of law and its role as a
206 generator of social norms make it an effective tool for the leader in a hegemonic
207 legal order to gain consent from the dominated without coercion or overt resistance.
208 The advantage of law is that it can be both used coercively and persuasively (Cain
209 in Sugarman (Ed.) 1983, p. 101).

Fig. 2.2  Legal discourses

this figure will be printed in b/w

are discourses of power

(Photo: “Legal Gavel and
Law Book” (Image
courtesy of nirots at
FreeDigitalPhotos.net))
2.3  Law as a Maker of Hegemony 39

For the USA, to maintain its leading role in the global IP trade and protect its 210
interests from strong and overt opposition abroad, it has to create a consensus 211
among nations through laws, legal discourses and contracts, and trade agreements 212
to project to the world that “things are natural as they are” and that promoting and 213
protecting IP against piracy also serve the interests of developing or non-IP-­ 214
exporting countries. Sum (2003) argued that in the field of IP, global rules and net- 215
works are construed and interpreted around US interests which can be considered 216
hegemonic because they are dominant in their ability to provide material rewards 217
and impose sanctions(including coercion) and, equally important, they are ideologi- 218
cally dominant. Through IPR laws in multilateral, regional, and bilateral agree- 219
ments, the USA is surprisingly successful in portraying specific definitions of 220
“intellectual property rights” and “creativity” as representing the general interests 221
of developing countries and of the consuming public. Thus, hegemony in today’s 222
global IP order is the power to create consensual view through legal discourses of 223
what is “just” and “natural” in the creative economy and to promote and protect, in 224
a subtle way, the interest of the most powerful and leading nation in the IP trade. 225

2.3.1  The Role of NGOs and Top US IP Companies 226

The establishment of US IP hegemony in the world through law is not an instant and 227
ready-made product created by the US government alone but a gradual process 228
which is shaped and directed by top American business nongovernment organiza- 229
tions (NGOs) and powerful US multinational companies with specific interests in 230
IPR protection. The fascination of the USA with legal discourses as an instrument 231
of promoting IP hegemony abroad is precipitated by the intense lobbying of top IP 232
business groups in the US Congress for stricter laws against piracy. Prominent 233
among them are the US film and pharmaceutical companies which saw the IP issue 234
as an investment issue. These multinationals wanted to establish their production 235
anywhere in the world and be assured that their intellectual property would be pro- 236
tected against piracy and counterfeiting (Braithwaite and Drahos 2000, p. 61). The 237
top US pharmaceutical companies led by Pfizer, for instance, needed a stronger IPR 238
protection abroad to safeguard their expensive innovative research (R&D) which 239
approximately costs 18 % of their drug sales (Maskus 2000, p. 53) (Fig. 2.3). 240
The US copyright companies also needed a stronger IPR protection to defend 241
their books, films, music, computer, and business software and computer applica- 242
tions against copyright piracy. These American companies are truly global in scope 243
and thus vulnerable to counterfeiting abroad. With a weak IPR regime in the USA 244
and overseas and the inability of the Paris Convention (an international treatise on 245
protection of industrial property like patents of inventions) and Berne Convention 246
(an international treatise on protection of literary and artistic works) to protect IP 247
American interest abroad, the CEOs of these companies bonded together, shared 248
resources, and stepped up their IP awareness campaign by highlighting heavy losses 249
caused by piracy to convince the US government to pass laws in the US Congress 250
 40 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

Fig. 2.3  The campaign for

this figure will be printed in b/w

a stricter IPR protection

abroad was initiated by top
US pharmaceutical
companies led by Pfizer
(Photo: “3D Image
Pharmaceutical Industry
Issues Concept Word
Cloud Back” (Images
courtesy of David Castillo
Dominici at
FreeDigitalPhotos.net))

251 which link American trade practices with IPR protection in order to promote their
252 business interests. And these NGOs and top American companies are apparently
253 successful in their campaign to influence IP legislation in the US Congress to their
254 favor (Braithwaite and Drahos 2000).

255 2.3.2  Legal Tools for US IP Hegemony

256 After an intense campaign and lobbying of IP business groups led by top American
257 pharmaceutical and copyright companies, the US Congress finally enacted a series
258 of IP laws and reformed judicial policies to strengthen IP protection at home and
259 abroad against piracy. First of these laws is the overhaul of the American copyright
260 law by passing the Copyright Act of 1976 which significantly lengthened the copy-
261 right term. This was followed by a law in 1982 which gave a monopoly of appeals
262 in patent cases to the US Court of Appeals for the Federal Circuit (Landes and
263 Posner 2003, p. 2). And this legal reform continued in the 1990s with passage of the
264 Visual Artists Rights Act, the Architectural Works Protection Act, the Sonny Bono
265 Act, the Digital Millennium Copyright Act (DMCA), and other copyright statutes
266 (Maskus 2000, p. 53, 406).
267 The US government also passed a series of IP laws that protect American IP
268 exports abroad against piracy. These statutes, envisioned and lobbied by top US IP
269 companies, now directly linked trade with IPR protection. In 1984, the US Congress
270 amended the Trade Act of 1974 to include IP in its Section 301 trade process. This
271 was subsequently amended and called as the Omnibus Trade and Competitiveness
272 Act of 1988. This time, it gave the US President, through the United States Trade
273 Representative (USTR), the power to impose trade sanctions to countries violating
274 IPR laws. It also added more processes called “Regular 301,” “Special 301,” and
275 “Super 301” that authorizes the USTR “to identify countries, assess the level of
276 abuse of US intellectual property interests, enter into negotiations to remedy the
277 problems and ultimately, if this proved futile, to impose trade sanctions” (Braithwaite
 2.3  Law as a Maker of Hegemony 41

and Drahos 2000, p. 62). Of all these new IP laws which aimed to promote and 278
protect American IP products in the USA and overseas, two statutes are said to 279
stand out as the most potent legal tools of American hegemony in IP: Section 337 of 280
the Tariff Act of 1930 and Section 301 of the Omnibus Trade and Competitive Act 281
of 1988. Section 337 is domestically oriented and allows punitive action against 282
imported products violating IPR violations while Special 301 is internationally ori- 283
ented and allows the USA to unilaterally impose trade sanctions against countries 284
engaging in piracy of US goods. Special 301 has also tasked the USTR to identify 285
priority foreign countries which, according to the US criteria, provide inadequate 286
IPR protection and which cause the greatest adverse impact on US right holders or 287
products as well as to keep a Priority Watch List (PWL) and a Watch List (WL) of 288
[AU8] foreign countries engaging in piracy (Pugatch 2004, p. 66) (Fig. 2.4). 289
Section 301 of the US Trade Act of 1988 therefore appears to be the most effec- 290
tive tool of the USA in projecting its domestic IPR model worldwide, providing the 291
basic standards of IPR protection around the globe, and thereby creating the 292
American IP hegemony in the world. The provisions of this section became interna- 293
tionalized after the USA became successful in incorporating them in the General 294
Agreement on Tariffs and Trade (GATT), particularly in the Trade-Related Aspects 295
of Intellectual Property Rights (TRIPS) of this agreement, which was signed by 111 296
countries in Marrakesh, Uruguay, on April 15, 1994. This linking of IPR protection 297
with international trade is basically a strategy crafted by the USA, led by its top 298
American pharmaceutical companies which allegedly lost billions of dollars abroad 299
because of piracy and which had a strategic long-term commitment to doing busi- 300
ness in developing countries (Braithwaite and Drahos 2000, pp. 60–61). Before the 301
ratification of TRIPS, there was no uniform or common IPR protection standard in 302
the world. Each country has its own system of IPR protection. And under the Paris 303
and Berne Conventions’ principle of national treatment, IPR protection given to 304
non-nationals would be the same to that of the nationals. But under TRIPS nations 305

Fig. 2.4  The USA has to

this figure will be printed in b/w

use the cultural mechanism

of law to shield its
hegemonic agenda in the
global IP trade (Photo:
“USA Flag Background
with Fireworks” (Image
courtesy of nirots at
FreeDigitalPhotos.net))
 42 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

306 are compelled through WTO enforcement mechanisms to adopt certain IPR
307 ­standards foreign to their local culture and legal system, standards which are largely
308 patterned after the US IPR protection system. “Thus there arises a fundamental
309 conflict between the developed and developing world, since under TRIPS develop-
310 ing nations are increasingly being forced to accept the intellectual property laws of
311 the West, if not their underlying philosophy” (Simons 1999, p. 63). On the part of
312 the USA, a global IP trade without a uniform international IPR protection system is
313 highly detrimental to the US economic interest. The US IP exports would be exposed
314 to piracy without legal and judicial recourse to prosecute IPR violators. Thus, the
315 USA uses the TRIPS and other legal mechanisms to achieve its hegemonic IP
316 designs. It uses the TRIPS if a case can be resolved through the World Trade
317 Organization (WTO) dispute settlement system. If not, then the USA would resort
318 to its self-help legislative tool of the Special 301 provisions of its Trade Act to iden-
319 tify and initiate investigations against countries violating the US IPR and take retal-
320 iatory actions such as economic sanctions or trade wars to curb piracy (Tian 2008,
321 p. 230).
322 To institutionalize the TRIPS and the American-style IPR regime, the USA
323 incorporated IPR protection in what Schott (2006) calls as the “three-dimensional”
324 trade strategy—involving a mix of bilateral, regional, and multilateral negotiations
325 in free trade agreements (FTAs)—in opening new markets for its exports, especially
326 for US IP products and ultimately in establishing its hegemonic role. These three
327 types of FTAs are among the key hegemonic tools of the USA in the global stage to
328 dominate the IP trade in the world. By signing these free trade agreements (FTAs),
329 developing countries are subjected to the US Special 301 provision which forces
330 them to align their IP laws and judicial system with the TRIPS and American stan-
331 dards, thus enabling the USA to prosecute piracy and infringement cases more effi-
332 ciently in legal forums. Free trade agreements (FTAs), which assume legal forms,
333 are actually legal contracts which are binding to parties under international law.
334 FTA disputes can then be brought to the World Trade Organization (WTO) for arbi-
335 tration and resolution.

336 2.3.3  The Role of Multilateral and Regional Institutions

337 Multilateral and regional institutions are created through multilateral legal agree-
338 ments or contracts forged by countries around the globe with the USA taking a
339 dominant role. The regional and international multilateral institutions which are
340 created by international law are said to be crucial to the maintenance of a global
341 hegemony. The American IP hegemony is not only backed up by the powerful treaty
342 of TRIPS and the institutionalization of WTO but also by the powerful multilateral
343 and regional institutions dominated by the USA. The World Bank (WB), International
344 Monetary Fund (IMF), and other regional development banks that promote TRIPS
345 to developing countries are heavily influenced by the USA in their trade and politi-
346 cal decisions. On the part of the USA, all multilateral institutions are seen as
2.3  Law as a Maker of Hegemony 43

instruments of foreign policy which can be used in support of specific US aim and 347
objective. The USA is clearly the one nation which no multilateral institution can 348
afford to ignore in the long run as it is one of the major contributors of the funds of 349
these institutions. When the USA is actively forging international consensus, it can 350
overwhelm other states that have taken on the role of swing or veto/blocking states 351
(Braithwaite and Drahos 2000, p. 24). 352
The structure of the multilateral institutions is inspired by the joint-stock model 353
of private capitalist corporations. Each member country’s share of votes is weighted 354
in accordance with the combined amount of capital it has paid in and is guarantee- 355
ing for (Bøås and Mcneill 2003, p. 17). Although these institutions are international 356
in nature, the voting power would depend of the country’s contribution to the gen- 357
eral fund. Votes are, therefore, weighted according to the country’s amount of 358
shares. And in all these regional and multilateral institutions, the USA is said to be 359
the number one shareholder. The voting of the USA in the World Bank, for instance, 360
is 16.14 % compared to the voting power of 7 % of Japan, the second highest con- 361
tributor of the WB fund. Other top European countries such as Germany, France, 362
and the United Kingdom only have 4 % voting power each. The USA also tops the 363
voting power in the International Monetary Fund (IMF) with 17.11 % compared to 364
6.4 % of Japan, the next biggest contributor of the IMF fund (Bøås and McNeill 365
2003, pp. xi–xii). 366
The voting power of the USA in multilateral and regional networks has direct 367
contribution to the maintenance of American hegemony in IP trade worldwide. The 368
Advisory Committee for Trade Negotiation (ACTN), a powerful committee that 369
gives the US business sector direct input into US trade policy, for instance, recom- 370
mended that “US Executive Directors to the International Monetary Fund, World 371
Bank and regional development banks should, in exercising their voting power, 372
examine the country’s record on intellectual property protection” (Braithwaite and 373
Drahos 2000, p. 62). Before a developing country can avail of any benefit or loan 374
from these institutions, it has first to agree to comply to their conditions for IPR 375
protection. Thus, the USA is utilizing these multilateral and regional institutions to 376
pursue its hegemonic control in IP and to ensure that the US-style IPR protection 377
will be staged in the global arena and provide US IP companies a legal infrastruc- 378
ture to counter counterfeiting and piracy. 379

2.3.4  Free Trade Agreements (FTAs) and IPR Protection 380

The USA does not only use the multilateral agreements and institutions to establish 381
its IP hegemony in the world but also the various free trade agreements (FTAs) 382
which are binding to parties under international law. Built around the basic frame- 383
work of multilateral disciplines such as the World Trade Organization (WTO), FTAs 384
can either be regional or bilateral (Brown and Stern 2011, p. 334). Regional FTAs 385
(RTAs) are usually forged between countries of a particular region or trading block 386
while bilateral FTAs or BTAs are trading agreements entered into by two countries. 387
 44 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

388 In reality, around 80–90 % of these FTAs are bilateral and only 10 to percent are
389 RTAs: FTAs are predominantly bilateral in the international trade system rather than
390 regional (Dent 2010, p. 50). Thus, to promote American leadership in IP, the US
391 government strategically uses these two types of FTAs as important IP hegemonic
392 tools. By signing FTAs with the USA with IPR protection clause, the countries
393 involved are automatically subjected to the USTR’s IPR monitoring and watch list
394 systems and can be included in the yearly Special 301 watch list of piracy hotspots
395 in the world if they fail to comply with the US IPR demands. They are also under
396 constant threat of losing their GSP or other trading privileges with the USA if they
397 fail to follow the USTR’s progressive IPR recommendations.
398 Despite their rhetoric of promoting mutual development, trade agreements are
399 usually shaped by political considerations rather than pure welfare estimations
400 (Manoli 2013). Some scholars believe that FTAs undermine rather than promote the
401 multilateral trading system envisioned by GATT. Through FTAs, contracting coun-
402 tries can pursue their own trading interests to the detriment of the multilateral trad-
403 ing system. “Most of FTAs when signed, domestic economic and strategic motives
404 dominate, than keeping in consideration the impact on the global trading system”
405 (Khatoon 2013, p. 110). Thus, FTAs are more vulnerable to manipulation than mul-
406 tilateral agreements in international forums especially when entered into between
407 powerful developed countries like the USA and developing countries. FTAs do not
408 reflect a consensus of the interest of communities involved. Busaniche argued that
409 negotiations are usually done in closed doors, with free assembled negotiating doc-
410 uments and zero public access to their proceedings and documents.5 The USA pre-
411 fers bilateral FTAs rather than regional or multilateral FTAs to achieve its myriad
412 political, economic, and security interests (Schott 2006, p. 99) (Fig. 2.5).
413 The BTAs provide the USA an alternative mechanism to pursue its hegemonic
414 designs in case a strong opposition arises in multilateral forums. Since the strength-
415 ening of IP protection engineered by the USA is increasingly contentious within
416 multilateral forums as illustrated by the collapse of WTO Doha talks in 2006, the
417 BTAs became a perfect tool for US trade negotiators to deal with overt resistance
418 (Morin 2006). As suggested by some theorists, bilateralism is often used by eco-
419 nomically powerful states as their control over multilateral negotiation declines
420 (Caporaso 1992, pp. 599–632; Greenaway and Milner 2001, p. 162; Yarbrough and
421 Yarbrough 1987, p. 23). What the USA cannot accomplish directly in multilateral
422 forums with regard to IPR is usually pursued in BTAs using diplomatic and contrac-
423 tual maneuverings to achieve American trade objectives. The Bipartisan Trade
424 Promotion Authority Act of 2002 (H.R. 3009) which outlines the authority of the
425 USTR to conduct these FTAs specifically states that “any multilateral or bilateral
426 trade agreement governing intellectual property rights that is entered into by the
427 United States reflect a standard of protection similar to that found in United States
428 law” (Krikorian and Szymkowiak 2007, pp. 388–393). In this sense, the model of
429 IPR protection espoused by the USA is not just based on TRIPS and other

5
 h t t p : / / w e a l t h o f t h e c o m m o n s . o rg / e s s a y / i n t e l l e c t u a l - p r o p e r t y - r i g h t s - a n d - f r e e -
trade-agreements-never-ending-story
2.4  Social Resistance and US IP Hegemony 45

this figure will be printed in b/w

Fig. 2.5  The USA strategically uses free trade agreements (FTAs) to pursue its hegemonic agenda
in the global IP trade (Photo: “Business Deal with Dollar” (Image courtesy of digitalart at
FreeDigitalPhotos.net))

i­nternational IP conventions but on its own version of IPR protection which, of 430
course, favors American IP interest. 431
The US strategy of offering trading partners access to the US market in BTAs is 432
usually accompanied by political pressure to force these partners to pattern their IP 433
regulatory measures from the American domestic political economy, thus reflecting 434
the US corporate interests (Dent 2010, p. 55). The objective of the USA in bilateral 435
agreements is therefore to achieve a cumulative effect. By convincing more coun- 436
tries to accept its increasingly stringent IPR standards, the USA hopes to accrue a 437
critical mass of support for its cause, thereby reinforcing its IP hegemony in the 438
world (Krikorian and Szymkowiak 2007, p. 389). 439

2.4  Social Resistance and US IP Hegemony 440

The American IP hegemony through legal discourses does not proceed without 441
resistance from countries and groups who felt that the rules on the global IP trade 442
are being imposed upon them. Resistance is a type of action which situates itself in 443
relation to power. It exists side by side with power and domination (Sarat 1990, 444
p. 246). If there is domination, there is social resistance. Resistance is often under- 445
stood as refusal and rejection against change, especially against imposed change 446
(Brighenti 2011, pp. 57–58). Informational capitalism espoused by the Global 447
North which aims to commodify the creative and cultural field does not proceed 448
without social resistance from the marginalized countries. The IPR regime espoused 449
by the USA and developed countries aims to privatize and commercialize owner- 450
ship of creativity, invention, artistic works, trademarks, and other creative works. 451
But this is in conflict with the general cultural understanding of the Asians led by 452
 46 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

453 China and ASEAN countries which see creative and intellectual works as property
454 of the commons and not just of individuals and groups. For Koreans, for instance,
455 creativity such as inventions or artistic works is not generally considered as private
456 property but as public goods. The Chinese too, with their strong Confucian tradi-
457 tion, also see inventions and creativity as public property which need to shared and
458 enjoyed by all in the community (Warshofsky 1994).
459 The bottom line of the conflict is the incongruent cultural values and awareness
460 between developed and developing countries on ownership of intellectual property:
461 the Global North using a strict capitalist lens sees creative work as subject to private
462 ownership and profit while the Global South sees it primarily as part of communal
463 ownership and subject to sharing. China and other Southeast Asian countries from
464 the Global South view IPR as communal goods rather than private ownership. But
465 the US-inspired IPR system with a capitalist orientation aims to colonize the Global
466 South’s cultural understanding of IPR through legal discourses. By means of multi-
467 lateralism, FTAs, and BTAs, the USA incorporates and imposes, in a subtle way, its
468 own IPR law in trade provisions. The Global South and developing countries who
469 are consumers of American and foreign IP products and services resist this form of
470 legal colonization of their own cultural understanding of IP. Thus, some exploit the
471 cracks and loopholes of the imposed American version of IPR legal system to
472 express their opposition, oftentimes, in a more passive and covert way to protect
473 their trade interest with the USA under the FTAs or GSP trade arrangements.

474 2.4.1  Law as Maker of Resistance

475 Legal sociologists recognize that law is not only a maker of hegemony but also of
476 social resistance. It is inherent in the nature of legal systems that they can never
477 become fully coherent and consistent wholes which successfully regulate the entire
478 fabric of social life. Thus, rule systems invariably include ambiguities, inconsisten-
479 cies, gaps, and conflicts (Moore 1978, p. 3). A legal system can control a certain
480 type of behavior but not the aggregate of behavior in society (Moore 1978, p. 30).
481 Sociologists of law acknowledge that various legal systems can coexist in a given
482 society. Legal pluralist theorists, in particular, identify two configurations of legal
483 system coexisting in one state: the local legal systems and the state law (Guillet
484 1998, p. 44). Differing types of legal systems existing in a society often breed vary-
485 ing and conflicting legal cultures and contrasting attitudes and responses of people
486 to law. The basic conflict lies in the underlying pattern and dynamics between the
487 legal culture of lawyers and legal professionals or what Friedman (1975) calls as
488 “internal legal culture” and the dominant legal culture of the lay or general public or
489 which Friedman calls as the “external legal culture” (Fig. 2.6).
490 The US lawyer–negotiators may be successful to some extent in their efforts to
491 impose the American IP laws in the “internal legal culture” of the developing or
492 IP-consuming countries through FTAs, but this does not mean immediate public
493 acceptance by the “external legal culture” of people in the developing countries.
 2.4  Social Resistance and US IP Hegemony 47

Fig. 2.6  Law is not only a

this figure will be printed in b/w

maker of hegemony but
also of social resistance.
Resisters often use the
same IP laws to challenge
the US IP hegemony
(Photo: “The Law Book
With Gavel” (Image
courtesy of cooldesign at
FreeDigitalPhotos.net))

Dominated groups, including government agencies, who felt marginalized by the 494
new IP legal regime would always find ways to resist the official law, finding cracks 495
and loopholes in the legal provisions to pursue their vested interests. Although the 496
law aims to be “gapless” in its content and implementation, it cannot totally elimi- 497
nate loopholes that allow social resistance of individuals and groups who oppose it. 498
[AU9] De Certeau argued that “people can resist the law by ‘vigilantly making use of the 499
cracks that particular conjunctions open in…proprietary powers….” (as cited in 500
Sarat 1990, p. 347). 501
Socio-legal scholars often view the strategies of individuals as seldom (if ever) 502
consistently committed to reliance on rule and other regularities. People seldom 503
pattern their actions according to the official law. On the contrary, people oftentimes 504
use the official law to their advantage. With the revitalization of legal anthropology, 505
there is a growing realization that legal discourses are not only spaces of regulation, 506
prohibition, and sanction but also spaces of resistance, possibility, and subversion. 507
Thus, in understanding hegemony and resistance in relation to law, scholars have 508
started to see law both as a maker of hegemony and social resistance. They view the 509
law as providing both the means and forums for legitimizing and contesting domi- 510
nant meanings and social hierarchies they support. Thus, even if the USA would be 511
successful in establishing hegemonic control of the global IP trade and through 512
TRIPS, FTAs, USTR, and other means, it is not insulated from strong criticism and 513
social resistance from developing and IP-consuming countries. A bloc of develop- 514
ing countries led by India, for instance, “denounces the intellectual property system 515
as a new form of colonial expense of the developing countries.”6 China and Southeast 516
Asian countries such as the Philippines and Vietnam are among the resisters in the 517
Asia Pacific region against the IPR protection dictated by the USA through the 518
USTR. 519

 Nathan Associates Inc. TCB Project (2003) “Intellectual Property and Developing Countries: An
6

Overview,” p. 1. https://www.hsdl.org/?view&did=446296

 48 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

520 Resistance scholars often see power and resistance as forming a continuum. If
521 one end of the continuum is hegemony, the other opposite end is social resistance.
522 Hegemony and resistance are two opposite poles. In interstate relations, these two
523 poles can refer to two superpowers or dominant states in contestations each other,
524 vying to control IP as the world’s new prime asset in international trade. And in the
525 current IP trade configuration, two dominant states emerged as top competitors: the
526 USA assuming as the hegemon or leader and China emerging as the top resister or
527 oppositionist through piracy and counterfeit trade.

528 2.4.2  Piracy as Passive Resistance: The “Weapon of the Weak”

529 Legal pluralist scholars view the official law as only one of the many normative
530 standards of behavior in society. There is a diversity of informal norms and custom-
531 ary laws that influence people’s behavior. If the official law seriously conflicts with
532 the preexisting legal culture of people, then it is more likely opposed and resisted by
533 people. The American version of IPR legal system is a new system—which basi-
534 cally contravenes the Asian concept of creative work as communal rather than pri-
535 vately owned—has not taken roots in the external legal cultures of Asians. Thus
536 resistance against this foreign and stricter IPR protection espoused by the USA can
537 be expected from various levels and domains. With the aid of the Internet and latest
538 information and communications technologies (ICTs), resistance could even be
539 done more easily for people to express to circumvent the official law in macro- and
540 microlevel.7 In the Philippines, for instance, it becomes easy for illegal traders to
541 evade detection from authorities with the use of mobile phones in optical disc piracy.
542 The Internet and cell phone technologies have given them anonymity and enriched
543 their communication network to circumvent the optical media law. Thus, the
544 national governments may appear agreeing with stricter IPR protection of the USA
545 in the BTA in the public stage but resisting covertly in the implementation of the IP
546 laws in their IPR jurisdiction (Fig. 2.7).
547 The French philosopher Michel Foucault sees resistance as a multidimensional,
548 multi-scale, and pervasive phenomenon. Thus passive resistance against the imposi-
549 tion of the USTR on IPR protection can take place both at the macro- and microlev-
550 els in various forms. What IP-consuming and developing countries cannot
551 demonstrate overtly against the American hegemony in IP and IPR protection is
552 expressed covertly through passive resistance. James Scott (1987), in his book,
553 Weapons of the Weak, emphasizes the importance of covert resistance in everyday
554 struggles of the weak against the powerful in daily life. Although Scott’s resistance

7
 Overlooked in the current social resistance literature is the role of technology in the global and
networked age. Since machines and technologies are more and more intertwined with humans, acts
of resistance today are often mediated by technology and other material networks. Media piracy as
an illegal form of resistance is highly mediated by information and communications technologies
(ICTs).
2.4  Social Resistance and US IP Hegemony 49

this figure will be printed in b/w

Fig. 2.7  Passive resistance is the critique of power spoken by the weak behind the back of the
dominant. Some piracy operators legally in terms of complying registration but operate illegally
when authorities are absent by selling pirated discs (Photo: One of the many registered CD–DVD
shops in Vietnam which are legally registered that sell pirated optical media discs (Image courtesy
of the author))

theory is originally applied to peasants’ reaction to oppression, the current 555

­persistence of piracy in defiance of the TRIPS and IP laws can also be interpreted 556
from the lens of this theory to account different infringing acts and nonconformist 557
acts and attitudes as expressions of covert or passive resistance. Passive resistance 558
­constitutes what Scott calls as the “hidden script,” i.e., “the critique of power spoken 559
by the weak behind the back of the dominant” which can be consciously and uncon- 560
sciously done by groups and individual actors (Scott 1990). When applied to IP, this 561
can refer to what governments, agencies, communities, groups, and individuals of 562
developing and non-IP-exporting countries secretly do outside the gaze of the USTR 563
surveillance networks to express their growing resentment against the imposition of 564
new IPR legal transplants modeled after the US domestic laws that colonize their 565
indigenous IP system and sideline their economic interests. The major problem with 566
the USTR and IIPA’S approach of addressing the piracy problem is their heavy reli- 567
ance on jurisprudence or the legal approach to understand and address the problem 568
which oftentimes neglects the sociocultural underpinnings of piracy, particularly 569
the dynamics of passive or covert social resistance to legal prescriptions. As already 570
mentioned, law is just one of the many normative standards people can use to pat- 571
tern their behavior. Other informal cultural standards also operate and sometimes in 572
competition with the official law. 573
 50 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

574 2.4.3  Overt or Active Resistant Acts and Strategies

575 The passage of TRIPS and the relative success of the USA to include its IP hege-
576 monic designs in FTAs did not however deter countries and groups to find means to
577 resist creatively against this domination. If the USA uses the cultural mechanism of
578 law as means to hide its IP hegemony in the world, developing and IP-consuming
579 countries also use this same mechanism plus other means to subvert this hegemony.
580 The very IP laws that they oppose were the same laws that they use to resist them
581 both in the legal and nonlegal fields. Although sociologists of law acknowledged
582 that law can be an instrument of hegemony, they also conceded that it can also be a
583 powerful tool for resistance. E.P Thompson, for instance, argued that law is not only
584 mystifying and faithfully working to the advantage of the class that implements it.
585 If untarnished, this same law can also be an effective instrument for equalization (as
586 cited in Gaines 2000, p. 7). Historically constructed and locally interpreted, the law
587 can provide the means both for legitimizing and contesting dominant meanings and
588 social hierarchies they support. Hirsch and Lazarus-Black (1994) explained that
589 hegemony is an ongoing articulatory practice that is performatively enacted in jurid-
590 ical spaces where webs of dominant signification enmesh at one level even those
591 who would resist at another. Hegemonic and oppositional strategies both constitute
[AU10]
592 and configure each other (Coombe 1998, p. 26). Thus, the law as a discourse, pro-
593 cess, and practice can be both a system of domination and social resistance.
594 Like any other official laws in contemporary state societies, the TRIPS, FTAs,
595 and other IP laws used by the USA to pursue its hegemonic agenda bear loopholes,
596 especially if transplanted to a foreign country with a different IP legal culture. The
597 imposition of the US-inspired unified IPR system in developing countries can create
598 legal and cultural gaps that allow resistant actors and networks to question and chal-
599 lenge it. Legal pluralist scholars see the legal field in society as only one of the many
600 normative fields that shape people’s behavior in relation to law. This pluralism can
601 be internal or within one legal system or “external” or the ultimate plurality of laws
602 in a given society (Griffiths 2002; Tamahana 2007). Plurality can also occur between
603 the law and customs or informal normative systems (Moore 1978). This plurality
604 when not well harmonized or networked to create a “gapless” legal system can
605 result to loopholes either within a given legal order or between diverse laws from
606 various legal systems which can become arenas of conflict and resistance. Despite
607 various attempts of the US and multilateral institutions to disregard legal pluralism
608 in the current globalization process and proceed with their global IPR unification
609 efforts, the empirical reality remains that legal gaps and diversity of IP customary
610 exist in emerging economies of China and Southeast Asia which try to adapt to the
611 US-prescribed IP trading system.
612 Overt legal resistance against American hegemony in the IP multilateral agree-
613 ments is manifested in some public protests against stronger IPR promoted by
614 developed countries led by the USA. In the 1999 WTO meeting in Seattle, for
615 instance, overt resistance can be seen with demonstrations of civil society groups
616 against the rigid IPR regime demanded by the USA and developed countries. In
2.4  Social Resistance and US IP Hegemony 51

Doha, Qatar, overt resistance is also displayed by opposing groups and countries 617
who showed displeasure with the USA and developed countries’ rigid interpretation 618
of TRIPS, particularly on patent medicines which can deprive the poor and develop- 619
ing countries of their access to cheap medicines especially against HIV. Countries 620
which are subjected to the Special 301 of the USTR also show overt resistance on 621
how the USA handles IPR protection issues. Letters, for instance, showing dissatis- 622
faction on how the USTR implements the recommendations of the powerful IIPA 623
with regard to the watch list system, indicate overt resistance. Thailand, for instance, 624
wrote a strong letter protesting the strict of application of rules on patent medicines 625
especially for HIV and why the country should be placed in the Priority Watch List 626
despite the country’s efforts to improve its IPR.8 Countries in the watch lists heavily 627
also criticized the USTR as inconsistent in applying trade rules and a biased judge 628
in handling disputes with regard to Section 301. The USTR is said to be unilateral 629
in interpreting trade rules and uses the negotiating style of the superpower. It is 630
perceived as prosecutor, plea bargainer, judge, and executioner in trade disputes 631
(Ryan 1995, pp. 5–6). 632
Overt resistance is expressed overtly on the Internet. Popular websites being 633
charged by top American IP companies for IPR violations air their resistance against 634
a strong copyright law that stifles freedom on the web by using the very letter of the 635
law to defend themselves in court. Although unsuccessful, the cyberlocking site 636
Hotfile, for example, defends itself against an infringement lawsuit filed by the 637
Motion Picture Association of America (MPAA) in court using the safe harbor pro- 638
visions of the Digital Millennium Copyright Act as a defense. These provisions, 639
Hotfile claimed, exempt online service providers from claims of copyright infringe- 640
ment made against them that result from the conduct of their customers. Thus, only 641
the infringing customer, not the service provider’s network, is liable for copyright 642
infringement and monetary damages.9 643
Overt resistance can also be observed in some big infringing websites which 644
continue to store and share copyrighted content in continued defiance of the USTR 645
and IPR law despite warnings by the USA. These websites are usually found outside 646
the jurisdictions of the US courts, making it difficult for American stakeholders to 647
file infringement cases and remove the sites and their infringement networks on the 648
web. The pirate website ThePirateBay.se, for instance, was shut down in 2009 but 649
is now resurrected and constantly changing the location of its server to continue 650
their infringing activities in open resistance to USTR’s stricter IPR system. The 651
infringing website isohunt.to is also resurrected with a new domain name in a new 652
country after being shut down by the MPAA last October 17, 2013 (Gil 2014). 653
Changing location of servers and domains is an active resistant strategy to avoid law 654
enforcement and to circumvent the copyright law. Without proper jurisdiction and 655
extradition treaty, American stakeholders cannot initiate legal action and bring per- 656
petrators to US courts to face charges. Thus, the recourse of these stakeholders is to 657

 https://www.wcl.american.edu/pijip/go/thainetwork2010
8

 
9
See “MPAA Wins Hotfile Copyright Lawsuit” at http://deadline.com/2013/08/
mpaa-wins-hotfile-copyright-infringement-suit-573949/.
 52 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

658 bring the cases to the IIPA which, in turn, will request the USTR to include them in
659 their Special 301 annual report and pressures the countries which host these infring-
660 ing websites to remove them and take legal actions against the infringers. Most of
661 these “defiant” websites are found in countries listed by the USTR as piracy hotspots
662 in the world. Vietnam, for instance, has numerous pirate websites apparently facili-
663 tated by the resistant attitude of the government toward stricter IPR regime. Thus,
664 Vietnam has been constantly pressured by the USTR and IIPA to shut down illegal
665 websites using the IPR provisions of the US–Vietnam BTA as a justification for the
666 intervention as well as the threat to deprive Vietnam of trade benefits from the USA
667 to ensure compliance.
668 Furthermore, active resistance can be observed in collective hacking which
669 defies the Internet regulation of a country enforcing the IPR provision of their
670 BTA. When the Anti-cybercrime Law was passed in the Philippine Congress, a
671 group of hackers which identify themselves as Anonymous Philippines hacked vari-
672 ous government sites as a sign of manifest resistance to the law. Singapore too, with
673 a BTA with USA, faced the same fate when it enacted a law which regulates the
674 Internet.
675 Aside from collective acts of active resistance from governments, civil society
676 groups, and big online groups against the stricter IPR regime created by the
677 American hegemony, there is a whole range of small group and individual acts of
678 active resistance on the web that show open defiance to the current IPR regime from
679 outright illegal downloading, peer-to-peer sharing, etc., to mere copying of a copy-
680 righted logo or image in the Internet. For James Scott (1987), social resistance can
681 emanate from below which can be both legal and illegal in nature and the perpetra-
682 tor may not be aware that he/she is defying a social order by performing resistant
683 acts.
684 Active resistance can easily be identified and visibly addressed by the USTR and
685 its surveillance network. But passive or covert resistance against the American IP
686 hegemony which is supported by the growing sophistication of technology is difficult
687 to identify, monitor, and address given the inadequacy of jurisprudence and law
688 enforcement system to deal with “cracks” and “loopholes” in the implementation of
689 the IP law. A strategic nonenforcement of the TRIPS and the American version of IPR
690 regime by governments and law enforcement agencies, often by influencing the coun-
691 try’s vested interests or corruption, is a form of passive resistance which is difficult to
692 monitor and to counter even with sophisticated surveillance network of the USTR and
693 IIPA. Thus, media piracy in China and ASEAN countries as a form of passive resis-
694 tance is difficult to monitor and regulate by authorities and stakeholders.

695 2.4.4  Covert or Passive Resistant Acts and Strategies

696 There is a whole range of passive resistant acts, from covert counterfeiting of IP
697 trade secrets, strategic nonenforcement of the American-inspired copyright laws by
698 governments, tolerance of corrupt practices of law enforcers, illegal downloading,
2.4  Social Resistance and US IP Hegemony 53

and vending of pirated discs to illegal peer-to-peer sharing by individual Internet 699
users. In Indonesia, for instance, infringers employ evasive behavior online to resist 700
the copyright law such as switching online locations and website names to avoid 701
detection as well as using other fraudulent practices such as using offshore servers 702
(2014 IIPA Special 301 Report, p. 51). These types of covert infringing acts which 703
are done at the backstage of IP negotiation process with the USA are the secret 704
“weapons of the weak” (Scott 1987) of the IP-consuming and emerging countries to 705
counter US IP hegemony and the hegemonic pressures of the USTR. Passive resis- 706
tance implies saying “yes” to the enforcement of the official IP laws in public stage 707
or negotiation but allowing or tolerating various forms of counterfeiting and 708
infringement at the backstage, away from the gaze and surveillance of the powerful 709
USTR and its allied networks. Because of the threat of losing trade benefits with the 710
USA in their FTAs, China and developing countries in the ASEAN cannot afford to 711
engage in open defiance or active resistance against the USTR by directly challeng- 712
ing and opposing its IPR recommendations. To show their resentment and resis- 713
tance, these countries instead employ indirect or passive resistance such as secretly 714
engaging in counterfeiting activities, stealing trade secrets to achieve technology 715
transfer, putting barriers to IP imports that compete local goods, allowing counter- 716
feiting in their local economies to aid their informal or underground economies, or 717
giving various excuses to the USTR for the delay of the implementation of its IPR 718
recommendations to avoid losing trading benefits with the USA. 719
One specific overt resistant strategy is delaying tactics. Developing countries 720
delay as much as possible the implementation of USTR’s recommendations if they 721
see it advantageous to their informal economy. This is sometimes caused by the 722
government’s strategy of not giving top priority to the combating of piracy—by not 723
vigorously pursuing the prosecution of piracy cases, giving the necessary bureau- 724
cratic support, budget, personnel, and other equipment to the government’s antipi- 725
racy agencies (2014 IIPA Special 301). The IIPA, for instance, lamented that 726
Vietnam has only taken a few enforcement actions over the years. It has not resolved 727
any piracy cases and has largely ignored concerns of the USA over onerous access 728
restrictions (2013 IIPA Special 301 Report: Vietnam). 729
Allowing piracy and delaying the implementation of the annual recommenda- 730
tions of the USTR can be a strategic passive resistance on the part of the government 731
in order to buy time and allow the covert technology transfer of American IP tech- 732
nology to emerging economies such as China and the ASEAN. One major reason 733
why emerging and developing countries resist a stricter IPR protection is the loss of 734
access to new technologies and technology transfer. This is particularly true to pat- 735
ents of invention. Many developing countries favor unrestricted access to technol- 736
ogy. Higher protection of IPR might preclude their access to new technology and 737
innovation (Oyejide 1990, p. 441). History has shown that copying or imitating is 738
the easiest way to advance technology in developing countries. By copying or pirat- 739
ing the superior technology of an industrial country, a less developed country can 740
also attain industrial status. Japan and South Korea became industrialized by bor- 741
rowing liberally from US firms but barely paid compensation for designs and pro- 742
cess technologies (Bello 1996). With weaker IPR regimes before TRIPS and US 743
 54 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

744 global IPR system, technology transfer was made possible in less developed states.
745 But with the contemporary capitalism, IPR regimes are specifically designed to
[AU11]
746 maintain unequal growth” (Orsi and Coriat 2006). Thus, allowing a weak IPR pro-
747 tection to persist can be a strategic policy of IP-importing countries to allow illegal
748 transfer of IP technology as well as a mechanism to protect their local economies
749 from unfair competition. China, for instance, has been accused by the USA of ille-
750 gally copying its IP technology, digital spying, and stealing American IP trade
751 secrets through its counterfeit computer software system and weak laws on trade
752 secret protection to imitate US technology and innovation. The most troubling
753 development for the USA are the reports that actors affiliated with the Chinese gov-
754 ernment and the Chinese military have infiltrated the computer systems of US com-
755 panies inside and outside China, stealing terabytes of data, including the companies’
756 intellectual property.10 This strategy of copying or imitating US IP and innovation
757 especially in the area of digital and communications media has probably borne
758 fruits as China now has its own version of American social media such Weibo for
759 Twitter and has the capability of producing high-tech computer and digital systems
760 as well as high-tech gadgets such as smartphones, tablets, laptops, and computers.
761 Top Chinese high-tech multinationals are said to have penetrated the US market and
762 have been listed in the US stock exchange.
763 Related to this strategy is the tolerance of the government to local companies
764 imitating indirectly IP products of American and foreign IP multinationals to attract
765 more buyers for the local rather than foreign products. In Vietnam, for example,
766 individuals and companies apply for trademarks which are the same or confusingly
767 similar marks which have been used for many years by foreign companies.
768 Vietnamese companies, including state-owned companies, prefer to “imitate rather
769 than innovate,” copying the appearance of high-profile products manufactured by
770 foreign products.11 This strategy obviously aims to take advantage and free-ride the
771 popularity of trademarks of foreign products to expand the market share of local
772 products.
773 Another major resistant strategy is putting protectionist barriers to the US and
774 foreign IP exports to access and capture local IP markets of developing countries. In
775 response to the apparent intention of the USA and developed countries of capturing
776 the huge Chinese market, for instance, the Chinese government, as a form resis-
777 tance, has put various market barriers making it difficult for American and
778 IP-exporting countries to penetrate the local market. In the area of entertainment
779 media like cinema, for instance, China has restricted the entry of American and
780 foreign movies. It only allowed around 20 movies every year for public showing. It
781 also blocked some American Internet companies such as Facebook and Twitter and
782 instead only allowed Weibo, a hybrid Chinese social media microblogging site with
783 market penetration similar to that of Twitter. Another strategy of the Chinese gov-

 https://ustr.gov/sites/default/files/2014%20NTE%20Report%20on%20FTB%20China.pdf
10

 American Chamber of Commerce in Vietnam (2013). “Intellectual Property Rights in the

11

Socialist Republic of Vietnam” p. 3.http://36mfjx1a0yt01ki78v3bb46n15gp.wpengine.netdna-

cdn.com/wp-content/uploads/2013/04/130208-USTR_Special_301_Submission_VIETNAM.pdf
 2.4  Social Resistance and US IP Hegemony 55

ernment to resist the influx of US and foreign multinationals to the Chinese market 784
is to make it difficult for foreign MNCs to do their daily operation in China, such as 785
investigating foreign companies for any wrongdoing or corrupt practices in order to 786
justify protectionist policies. The American multinational Apple, for instance, was 787
forced to issue an apology for offering inadequate warranties.12 Other piracy-laden 788
countries in the ASEAN also employ this strategy of putting barriers in the local 789
market to discourage the entry of American IP products and services. The IIPA, for 790
instance, opposed the implementation of Decision No. 20/2011/QD-TTg issued by 791
the Vietnamese government in 2011 that jeopardized the business interest of foreign 792
pay-TV operators who are required by this law, among others, to appoint and work 793
through a locally registered landing agent to ensure their continued provision of 794
services in Vietnam. For the IIPA, this type of regulation can expand censorship 795
requirements and may lead to “editing” fees on international channels (2013 IIPA 796
Special 301 Report, p. 296). In the Philippines, the IIPA identified five barriers 797
which could discourage American and foreign copyright companies to penetrate the 798
market: the (1) unreasonable taxes on motion picture businesses, (2) foreign owner- 799
ship restrictions of media companies, (3) limitations on the ability of audiovisual 800
content providers to enter into exclusive distribution agreements with local cable 801
providers, (4) vague methods of valuation of customs duties for films, and (5) the 802
potential introduction of restrictions on advertising by right holders on pay-TV 803
channels (2014 IIPA Special 301, p. 202). 804
Developing countries take notice that their informal sectors which are great con- 805
tributors to national income and employment generation would be better served 806
without the stricter copyright protection imposed by the USTR. With poverty levels 807
on the rise, developing countries are more concerned with the larger social agenda 808
of development and quality of life for their citizens than pursuing vigorously media 809
piracy that contributes to growth to their informal sectors. As discussed in Chap. 5, 810
the informal and illegal vending of optical media discs, for instance, provides jobs 811
and alternative livelihood to the poor and socially discriminated recent migrants in 812
the Philippines and Vietnam. In the absence of viable alternatives to replace the 813
media piracy informal trade, the government could not immediately abolish piracy 814
without absorbing the impact of greater unemployment and rise of criminality. At 815
the peak of Quiapo’s piracy business before its “closure” in 2011, some residents 816
and retailers of pirated discs acknowledged in an interview that optical disc piracy 817
has improved the economic status of the Muslim residents in the enclave and 818
decreased petty crimes in the district as people became busy doing piracy trade in 819
the area. 820
Covert resistance can also take place in enforcement actions. It is highly proba- 821
[AU12] ble, for example, that the public burning and crushing of “confiscated CDs and 822
DVDs made by some government agencies in the presence of journalists and stake- 823
holders were just for a show or publicity stunt to please the USTR and to camou- 824
flage the real inept enforcement system that allows piracy. It is a common pattern for 825

12
 “China loses its allure” in The Economist (25 January 2014) at http://www.economist.com/news/
leaders/21595001-life-getting-tougher-foreign-companies-those-want-stay-will-have-adjust-china
 56 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

826 the police and law enforcers to document some of their achievements in front of the
827 media reporters for purposes of accomplishment reports and enhancing the govern-
828 ment image of its fight against piracy. The intention is not really to urgently put a
829 stop of piracy but to impress the USTR, IIPA and stakeholders that the government
830 is doing something to fight piracy and thus the country must not be listed in or
831 downgraded from the USTR’s watch lists and be given better trading benefits by the
832 USA.
833 Finally, passive resistance against a stricter IPR protection system can be mani-
834 fested in the local governments’ efforts to implement the IP laws and business pro-
835 cedures. The national government may have complied with the USTR’s IP legislative
836 recommendations but the local government such as the provincial, district, city, or
837 municipal governments can show resistance to this new setup. With strong personal-
838 ism in the local culture, business deals are based on ongoing business relation rather
839 on the official contract laws or what is called as relational contracting: The decision
840 to cooperate depends partly on repeated-game incentives and partly on suitably
841 designed governance structures created by contracting parties rather than by the
842 official regulatory structures (Mcmillan and Woodruff 1999, p. 3). With inconsistent
843 and oftentimes conflicting provisions of the IP and copyright law and business pro-
844 cedures, local bureaucrats and law enforcers can always find ways to interpret and
845 implement the official law and procedure based on the prevailing customs and infor-
846 mal normative standards to protect local trade interests and personal relations. If
847 corruption is involved, the unscrupulous enforcers or regulators can cut corners to
848 circumvent the law.13 Very often, the local police are in cahoots with infringers in
849 the illegal optical media business. In its February 8, 2013, report, for instance, the
850 American Chamber of Commerce Vietnam noted that authorities are often reluctant
851 to enforce the copyright laws because of personal (but hidden) relationships with
852 infringers and thus being “caught” remains unlikely in Vietnam.14

853 2.5  A
 sia Pacific: A Great Promise and Scourge
854 of US IP Hegemony

855 Forging FTAs with the largest and fastest-growing region in the world with a great
856 potential as the leading US overseas market can be a strategic move for the estab-
857 lishment of US global IP hegemony. The Asia Pacific region as the largest and the
858 fastest-growing economy in the world is therefore crucial for the growth of the
859 American IP hegemony in the current globalized economy. It is considered as the

13
 Please see Chap. 6 of this book for a more detailed account on corruption and nonenforcement
of optical media law in the Philippines and Vietnam.
14
 American Chamber of Commerce in Vietnam (2013). “Intellectual Property Rights in the
Socialist Republic of Vietnam” p. 2. http://36mfjx1a0yt01ki78v3bb46n15gp.wpengine.netdna-
cdn.com/wp-content/uploads/2013/04/130208-USTR_Special_301_Submission_VIETNAM.pdf
 2.5  Asia Pacific: A Great Promise and Scourge of US IP Hegemony 57

[AU13] engine of global economic prosperity (Ming-Te and Tai Ting Lu 2011), hosting the 860
fastest-growing East Asian economies of China, Taiwan, Japan, North and South 861
Korea, and Mongolia as well as the vibrant Southeast Asian economies of Brunei, 862
Burma (Myanmar), East Timor, Indonesia, Laos, Malaysia, Philippines, Singapore, 863
Thailand, and Vietnam, all members of the Association of Southeast Asian Nations 864
[AU14] or ASEAN. The Asia Pacific region hosts nearly “60 % of the global GDP, the 865
world’s fastest-growing economies, half of the world’s population, and an emerging 866
class eager for American products and services.15 For the USA, the Asia Pacific 867
region will be the engine of global growth for the next decade with a profound 868
impact on American IP companies. The US Secretary of Commerce, Penny Pritzker, 869
projected that by 2022, the Asia Pacific will be home to 54 % of the world’s middle 870
class and will account for 42 % of global middle class spending. China alone has a 871
vibrant middle class in this region that rose to 247 million or 18.2 % of the popula- 872
tion and is expected to further increase to 607 million by 2020. At this point, its 873
class spending will be on par with the USA after adjusting for inflation and purchas- 874
ing power.16 875
With a vibrant and fast-rising middle class, the Asia Pacific has a very dynamic 876
media landscape and a high appetite for IP goods, particularly digital media, 877
whose content and products are mainly dominated by American copyright compa- 878
nies. The Asia Pacific surpassed other regions such as Europe, for instance, in 879
terms of television viewing and video consumption via the Internet or even 880
through mobile phones. In 2013, it has the highest number of mobile-cellular 881
subscriptions in the world with 3.5 billion out of 6.8 billion of the total subscrib- 882
ers. It ranks as the number one region in the world in terms of mobile broadband 883
connection with 895 subscriptions.17 Nielsen’s global media consumption index 884
also showed that the Asia Pacific surpasses Europe and Western markets on televi- 885
sion viewing and video consumption via Internet or mobiles. Being the fastest- 886
growing economy in the world with a huge emerging class of digital media 887
consumers hooked online, it is not surprising that the USA is eyeing the Asia 888
Pacific with special interest to further expand its hegemonic presence in the world, 889
more specifically in the area of copyright media. Its huge and rising middle class 890
which heavily consumes digital media can accelerate American copyright export 891
in the coming years. The Asia Pacific is therefore the “promise land” of the 892
American digital and entertainment media. 893

15
 See “Commerce Secretary on U.S. Commitment to Asia-Pacific Region” at http://iipdigital.
usembassy.gov/st/english/texttrans/2014/04/20140417297997.html#axzz3abdMbONe.
16
 “Spotlight on China: Building a Roadmap to Success in media and entertainment,” p. 4 at http://
www.ey.com/Publication/vwLUAssets/Media_and_Entertainment_-_Spotlight_on_China/$FILE/
Spotlight_on_China.pdf
17
 International Telecommunication Union (ITU), “Measuring the Informational Society 2013” at
https://www.itu.int/en/ITU-D/Statistics/Documents/publications/mis2013/MIS2013_without_
Annex_4.pdf
 58 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

894 2.5.1  The Case of China and the ASEAN

895 China and the ASEAN countries, being the top emerging economies in the Asia
896 Pacific, offer the greatest potential as a market for American IP exports, more specifi-
897 cally for American digital media and services, giving the US copyright MNCs the
898 widest and fastest-growing digital market in the world. If counterfeiting and media
899 piracy of American products is controlled by Chinese authorities, it is projected that
900 China would become the largest market for US digital goods and services. At pres-
901 ent, China is rapidly becoming the world’s largest digital media market. In 2016, it
902 is predicted that China will overtake the Japanese market to become the largest enter-
903 tainment and media market in the Asia Pacific region and number two in the world
904 behind the USA.18 Virtually every Chinese home has a television. China’s film sector
905 has the second-largest film market in the world after the USA and is said to overtake
906 the US box office by 2020. China also has largest and fastest-growing Internet mar-
907 ket for digital media in the world—the real significance to the American IP hege-
908 mony—from multimedia, music, and film to online gaming.19 Although the Chinese
909 Internet penetration is slower compared to the USA and developed countries, its
910 potential is, however, staggering. China already has the highest number of Internet
911 users in the world and is expected to rise further with its more than 1.3 billion popu-
912 lation. On February 3, 2015, China reported that it has 649 million Internet users,
913 47.9 % Internet penetration, and 85.8 % mobile Internet users.20 With this rapidly
914 increasing Internet users, plus the ongoing convergence of networks and the govern-
915 ment’s telecommunication infrastructure building which aim to combine telecom,
916 broadcast, and Internet on a single platform to deliver voice, data, and video content,
917 China’s new digital and entertainment media is expected to reach unprecedented
918 heights.21 And if the USA can penetrate this huge digital media market in the near
919 future and control China’s digital piracy, American global hegemony in IP, at least in
920 the area of copyright, would then be fully realized given the significant size of the
921 Chinese market. Thus, the USA, through the USTR, is zealously taking hegemonic
922 steps to pressure China to agree and to comply to its own version of IPR protection
923 in order to eventually dominate the giant Chinese digital and copyright market that
924 includes music, films, software, online games, television programs, books, journals,
925 and other digital media goods, services, and applications.

18
 “China-leading the race to digital media revenues in Asia-Pacific” at http://www.pwc.com/gx/en/
global-entertainment-media-outlook/assets/china-summary.pdf
19
 “Spotlight on China: Building a Roadmap to Success in media and entertainment,” p. 4 at http://
www.ey.com/Publication/vwLUAssets/Media_and_Entertainment_-_Spotlight_on_China/$FILE/
Spotlight_on_China.pdf
20
 https://translate.google.com/translate?sl=auto&tl=en&js=y&prev=_t&hl=en&ie=
UTF-8&u=https%3A%2F%2Fptop.only.wip.la%3A443%2Fhttp%2Fwww.cac.gov.cn%2F2015-02%2F03%2Fc_1114237273.
htm&edit-text=&act=url
21
 “Spotlight on China: Building a Roadmap to Success in media and entertainment,” p. 4 at http://
www.ey.com/Publication/vwLUAssets/Media_and_Entertainment_-_Spotlight_on_China/$FILE/
Spotlight_on_China.pdf
2.5  Asia Pacific: A Great Promise and Scourge of US IP Hegemony 59

Aside from China, the ASEAN economies too constitute a great promise for the 926
American IP hegemony in digital media. The ASEAN is significant for the growth 927
of American hegemony in the Asia Pacific region. Besides its strategic military, 928
security, and political importance to the US interest, the ASEAN region is a dynamic 929
and fast-growing economy which hosts nearly 600 million people and lies at the 930
crossroads of huge markets, straddles critical shipping lanes, and controls substan- 931
tial agricultural, mineral, and energy resources (Petri and Plummer 2014, p. 1). 932
Above all, the ASEAN is a region which has a high demand for American digital 933
media exports—thus, a fertile ground for the establishment of the US IP hegemony 934
in the Asia Pacific. Like China, the ASEAN is also a great promise as a market for 935
American copyright goods and services. Vietnam, Indonesia, Malaysia, Thailand, 936
Philippines, Singapore, and other ASEAN countries manifest a growing appetite for 937
digital and entertainment media which corresponds to the region’s rising middle 938
class and Internet users. The digital landscape is at a turning point for many con- 939
sumers in the ASEAN as digital media is ingrained in their everyday lives with 940
Internet usage for digital and entertainment media is even surpassing the time spent 941
on traditional media such as television or print.22 The Philippines, for instance, 942
ranks as the number 2 user of Facebook, the top American social networking site 943
with more than a billion users. Indonesia ranks fourth in the world among the top 944
users of Facebook23 and ranks fifth in Twitter, the top US microblog site on the 945
Internet.24 A study by comScore in March 2013, for instance, showed that consum- 946
ers of six ASEAN countries in the Asia Pacific, including the Philippines and 947
Vietnam, used heavily digital and entertainment media such as music, movies, 948
entertainment news, and television shows on the Internet. It also showed that over 949
620 million people in the region spent their time online, primarily consuming 950
American digital and entertainment media content supplied by top US Internet com- 951
panies such as Google, Microsoft, and Yahoo. YouTube of Google emerged as the 952
number 1 multimedia site of ASEAN countries.25 953
In summary, China and the ASEAN have shown the greatest promise to the USA 954
for the establishment of American IP hegemony in the Asia Pacific region, the main 955
engine of current global economy. With their rising middle class coupled with their 956
largest and fastest-growing Internet connection and market for American digital and 957
entertainment media, China and the ASEAN are the ideal regional ground for the 958
USA to extend its IP hegemony and innovation and, at the same time, the focus of 959
USTR’s antipiracy surveillance. 960

22
 Nielsen (2011), “The Digital Media Habits and Attitudes of Southeast Asian Consumers October
2011,” pp. 2–3 at http://www.grahamhills.com/wp-content/uploads/2011/11/71370794-The-digi-
tal-media-and-habits-attitudes-of-South-East-Asian-Consumers.pdf
23
 http://www.statista.com/statistics/268136/top-15-countries-based-on-number-of-
facebook-users/
24
 http://www.adweek.com/socialtimes/twitter-top-countries/468210
25
 comScore.com Media Metrix, March 2013 study, p. 41
 60 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

961 2.5.2  Legal Tools to Combat Media Piracy in the Asia Pacific

962 To achieve the great promise of the Asia Pacific region as the ideal market for US IP
963 exports and fertile ground for the establishment of American IP hegemony in the
964 world, counterfeiting and piracy of USA and foreign IP must be monitored and
965 controlled. Thus, the USA through the USTR has pressured piracy-laden countries
966 of the Asia Pacific to reform their IPR protection system to curb counterfeiting,
967 especially media piracy in the region. To achieve this, the USA took a series of legal
968 steps through FTAs in the Asia Pacific Economic Cooperation (APEC) and the
969 USTR to pressure ASEAN countries to address the growing media piracy in the
970 region. Through the influence of the USA, the Asia Pacific Economic Cooperation
971 (APEC) thus created the Intellectual Property Rights Get-Together (IPR-GT) in
972 1996 which was subsequently renamed in 1997 as Intellectual Property Rights
973 Experts’ Group (IPEG) with a primary duty to ensure adequate protection, through
974 legislative, administrative, and enforcement mechanisms, of intellectual rights in
975 the Asia Pacific region based on the principles of WTO’s TRIPS and other related
976 agreements.26 With regard to media piracy, APEC was able to produce two signifi-
977 cant sets of guidelines to combat media piracy in the region: “Effective Practices for
978 Addressing Unauthorized Camcording” and “Effective Practices for Regulations
979 Related to Optical Disc Production.”27 The first one encourages APEC countries to
980 pass laws against illegal recording of movies inside cinema houses intended for film
981 piracy and the second one is intended to regulate optical disc plants in the region to
982 avoid counterfeiting digital media products. Optical disc piracy of American music,
983 software, games, and films using CDs and DVDs is rampant in the Asia Pacific
984 region, particularly in China and Southeast Asian countries such as Malaysia,
[AU15]
985 Thailand, Indonesia, Vietnam, and the Philippines. Illegal camcording or recording
986 of foreign and local feature films inside movie houses and the uploading and selling
987 of camcords on the Internet as master copies for the replication of pirated optical
988 media discs sold in illegal CD–DVD shops and on the sidewalks of these countries.
989 For the USA, the passage of an anti-camcording legislation can be a deterrence
990 against piracy of American movies which deprives the Motion Picture Association
991 of America (MPAA) millions of dollars in sales and revenues. The passage of a law
992 which also regulates and monitors optical disc plants is also very important for the
993 USA as this can prevent the proliferation illegal disc factories which manufacture
994 pirated American and foreign digital media.
995 In response to APEC’s call against camcording and after a long prodding of the
996 USTR, the Philippines enacted the Anti-camcording Act of 2009 (R.A. 9995).
997 Under this law, any person caught using or attempting to use an audiovisual work in

26
 See www.apec.org.
27
 The unauthorized recording of a feature film as it is shown in movie houses is known as camcord-
ing and resulting recording as camcord. The device used in camcording is called camcorder which
includes video cameras, digital cameras, mobile phones, tablet, and other recording gadgets.
Camcords are reproduced and distributed via camera and Internet file sharing and through sale of
unlicensed optical discs (Koch et al. 2011, p. 1).
 2.5  Asia Pacific: A Great Promise and Scourge of US IP Hegemony 61

exhibition facility may be sentenced to imprisonment of 6 months and 1 day to 6 998

years and 1 day and fined between US$1000 and 17,000.28 But the directive in regu- 999
lating optical disc plants remained unaddressed by the Philippine government. 1000
Other ASEAN piracy nations largely ignored this recommendation. Other ASEAN 1001
piracy hotspots such as Thailand, Indonesia, Malaysia, and Vietnam have yet to 1002
enact appropriate laws regulating the production of optical discs and criminalizing 1003
camcording in movie houses despite the continuous pressure from the IIPA and 1004
USTR. 1005

2.5.3  Anti-online Piracy Regulations 1006

The technological innovation and widespread adoption of the Internet around the 1007
[AU16] globe posed major problems to the US IP hegemony. “Copyright materials can eas- 1008
ily reproduced and cheaply transported in digital form all over the world via the 1009
Internet using any number of different protocols and distribution models.”29 And 1010
since the Internet cannot distinguish what is legal or illegal materials on its web and 1011
infringers can easily become anonymous and migrate outside national borders, reg- 1012
ulating the Internet to curb media piracy has always been a major problem for the 1013
US IP hegemony. With this realization, the USTR has been pressuring Asia Pacific 1014
countries to regulate not just camcording and optical disc plants but ultimately to 1015
the Internet, the primary purveyor of infringing materials. This strategy corresponds 1016
with the changing media piracy landscape in China and the ASEAN in recent years 1017
where physical and optical disc piracy have been gradually replaced by online 1018
media piracy. The IIPA has observed that over the past several years an increase in 1019
the severity of Internet piracy is accompanying increased Internet, broadband, and 1020
mobile connection and penetration. Optical disc piracy which uses CDs and DVDs 1021
has been gradually replaced by online media piracy usually led by the youth who 1022
have the strong inclination to use the latest technologies. Particularly noted are the 1023
rising use of streaming, forum and blog, deep linking, peer-to-peer sharing (P2P), 1024
BitTorrent, and “one-click hosting” sites to infringe copyright in movies, music, 1025
[AU17] software, and books and journals. Mobile apps are also becoming a new platform 1026
for disseminating illegal content” (2014 IIPA, Special 301 Report, pp. 163–164). 1027
Internet piracy accompanies Internet penetration. And some of the emerging online 1028
piracy techniques include P2P file sharing services, BitTorrent file sharing, deep 1029
linking, blogs providing links to pirate materials, and cyberlockers which store 1030
infringing material by selling passwords for illegal access (2014 IIPA Special 301 1031
Report, p. 201). 1032

28
 See R.A. 9995 at http://www.lawphil.net/statutes/repacts/ra2010/ra_9995_2010.html.
29
 Ruggenar, C. (2011). Perspectives on Policy Responses to Online Copyright Responses: An
Evolving Policy Landscape. WIPO, p. 3 at http://www.wipo.int/meetings/en/doc_details.
jsp?doc_id=171017
 62 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

1033 2.5.4  Online Media Piracy in ASEAN Countries

1034 The Internet is both an opportunity and a problem for the US IP hegemony. As an
1035 opportunity, the Internet is the main platform for big and small American copyright
1036 industries which generate income and employment for the US economy and help
1037 maintain the American economic leadership in the world. As a problem, the Internet
1038 is the main platform for counterfeiting and piracy. In optical media, the web is the
1039 central platform for online and optical disc piracy. Copyright content is illegally
1040 uploaded, downloaded, and shared on the Internet. Master copies are also uploaded
1041 and downloaded from the Internet and are replicated in disc formats and sold in the
1042 illegal shops and stalls in piracy-laden emerging economies such as ASEAN coun-
1043 tries. Online media piracy is the unintended effect of the growing Internet penetra-
1044 tion and of the convergence of technologies. The Internet which is used to be
1045 connected only through cable wires in personal computers is now attached through
1046 wireless broadband to smartphones, iPods, tablets, laptops, and other high-tech gad-
1047 gets. To curb online media piracy and assert the American hegemony in the region,
1048 the USA is now focusing on regulating the Internet in ASEAN piracy-laden coun-
1049 tries through FTAs and GSPs to combat digital media piracy.
1050 With the rising Internet connection and demand for digital media goods and ser-
1051 vices, the USA has noticed a dramatic increase of online piracy in ASEAN coun-
1052 tries such as Thailand, Malaysia, Philippines, and Vietnam. Thailand is the first
1053 ASEAN country to be placed in the USTR’s Priority Watch List in 1989 and has a
1054 long history of copyright piracy. Lately, Thailand has one of the highest growth
1055 rates of online piracy in the region. In its 2014 Special 301 annual report, for
1056 instance, the IIPA alleged that the market for creative content in Thailand has dete-
1057 riorated in recent years due mainly to piracy and lack of the needed IP legal reforms.
1058 With Thailand’s increasing Internet connection, piracy (estimated 80 % of the Thai
1059 market) through online and mobile device (smartphone, tablet) has largely replaced
1060 physical piracy (2014 IIPA Special 301 Report, Thailand, p. 1). The IIPA and USTR
1061 have been pressuring Thailand to pass laws that regulate online piracy of digital
1062 media, but the government has resisted this pressure and has not passed any law as
1063 of date which directly regulates the Internet to combat online media piracy.
1064 Malaysia is another ASEAN country with a long history of media piracy in the
1065 USTR and IIPA’s PWL and WL and rising online piracy. Although it has been
1066 removed from these lists, Malaysia continues to be in the forefront of optical media
1067 piracy. In fact, the IIPA recommended to the USTR to place Malaysia in the Watch
1068 List because of the continuation of optical disc piracy. It noted that Malaysia
1069 remained a producer and supplier of pirated optical discs and lacked enforcement
1070 against licensed optical disc factories. It also observed an increase of vendors sell-
1071 ing pirated discs. Thus, part of the priority actions requested by the IIPA in 2012 is
1072 to license all legitimate optical disc traders at “night” markets and to ban all sales of
1073 pirated discs in these areas (2011 IIPA Special 301 Report, pp. 201–202). Malaysia
1074 may have made significant progress in its fight against optical disc piracy but it is
1075 struggling to fight online media piracy. With its impressive Internet penetration
2.5  Asia Pacific: A Great Promise and Scourge of US IP Hegemony 63

(65.8 % of the population are Internet users) and broadband subscription (41.3 mil- 1076
lion mobile subscriptions or 100 % mobile penetration), Malaysia faces a serious 1077
online piracy challenge. The Malaysia Domestic Trade, Cooperatives and 1078
Consumerism Ministry and Malaysian police have been monitoring at least 30 sus- 1079
pected infringing websites that supply infringement material online (2014 IIPA 1080
Special 301 Report, p. 2). Despite the growing Internet piracy, Malaysia, as of date, 1081
has not enacted an Internet law to combat online piracy. 1082
The Philippines, like Malaysia, has a long history in the USTR’s watch list sys- 1083
tem due to optical disc piracy and, lately, due to growing online piracy of copy- 1084
righted materials. After years of IPR reform and struggle against optical disc piracy, 1085
the Philippines was finally removed from the USTR’s watch lists in 2014. Despite 1086
this significant development, some antipiracy groups were not happy. The two 1087
US-based IP lobby groups, the IIPA and International Anti-counterfeiting Coalition 1088
(IACC), have recommended that the Philippines must be retained in the Watch List 1089
of the USTR in 2014, instead of being removed from the watch list system alto- 1090
gether, because of the rising online trafficking of both counterfeit and pirated goods 1091
(De Vera 2014). Media piracy, therefore, has not waned but just migrated to the 1092
online platform with the rising Internet connections and the youth’s increasing use 1093
of illegal digital media products and services. Although the Internet penetration in 1094
the Philippines is not as fast as Vietnam’s, online piracy has been a growing concern 1095
of the USTR and IIPA. Optical disc piracy has slowly been eclipsed by online media 1096
piracy. And the Optical Media Board (OMB), the government’s main antipiracy 1097
agency, can only regulate optical media production, conduct raids, and confiscate 1098
illegal discs, but it has no power and jurisdiction to curb online media piracy in 1099
mobile phones, computers, and other devices with Internet. Thus, the IIPA and 1100
USTR want the Philippine government to amend the optical media law to empower 1101
the OMB to curb online piracy. 1102
Unlike other ASEAN countries, the Philippines enacted an Internet law which 1103
can curb online media piracy. After a long negotiation, pressure from the USTR, 1104
and promise of US military support against China’s incursion in West Philippine 1105
Sea, the Philippines finally enacted the Anti-cybercrime Law in 2013 despite strong 1106
resistance from Internet users and civil society groups. Although this law intends to 1107
fight cybercrime, some of its provisions are important for the USA to fight media 1108
piracy on the web. In recognition of this effort, the Philippines was allegedly being 1109
removed from the USTR’s piracy Watch List just before President Obama’s visit to 1110
the Malacanang Palace last April 2014 despite the lack of solid empirical evidence 1111
which showed that media piracy has indeed waned in the country. 1112
Finally, of all the ASEAN countries with high online media piracy, Vietnam 1113
poses a very serious threat to the American hegemony in the region. Being one of 1114
the fastest-growing Internet penetration in the world, ranking 18th in the world, 1115
eighth in Asia, and third in Southeast Asia with many Internet service providers and 1116
numerous pirate websites, Vietnam’s online piracy of music, film, online games, 1117
and other digital media products is one of the fastest in the region next to China. The 1118
vast majority of the websites dealing with copyright content in Vietnam, for instance, 1119
are unlicensed. With regard to music, for example, the IIPA estimates that only 1 % 1120
 64 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

1121 of online music services offered by a few online operators are licensed. The digital
1122 media market is flooded with counterfeit copyright content. Only a very small per-
[AU18]
1123 centage of this market is bought from licensed sites. The rest are streaming and
1124 download sites (50 %), forums (21 %), video websites (17 %), search engines (8 %),
1125 deep linking, cyberlocker, and social network sites, all being employed to deliver
1126 unlicensed copyright content, including music, movies, entertainment and software,
1127 and published materials” (2013 IIPA Special 301 Report, p. 287). The rise of “noto-
1128 rious” infringing sites such as nghenhac.info,vui.vn, Zing.vn, Socbay.com, Tamtay.
1129 cn, xemphimonlines.com, phimvang.org, xuongphim.com, viettorrent.vn, ephim24g.
1130 net, and phim.soha.vn which seemed to be supported or tolerated by the Vietnamese
1131 government is now the major concern of the American hegemony in the communist
1132 state (2013 IIPA Special 301 Report). These infringing sites which disseminate
1133 largely American copyright materials are so popular that one time, the American
1134 embassy in Vietnam, as already mentioned, is forced to use a “Zingme” account of
1135 a top Vietnamese pirate site Zing.vn to reach out to young people in Vietnam
1136 (Brummit 2012).
1137 Vietnam has been under intense pressure from the USTR to pass new laws to
1138 fight online media piracy. Online piracy is a growing problem in Vietnam. Experts
1139 indicate that up to 90 % of all digital content provided to users on the Internet in
1140 Vietnam such as music, movies, e-books, software, and mobile phone applications
[AU19]
1141 is pirated” (American Chamber of Commerce Vietnam 2013, p. 1). The pressure has
1142 probably moved Vietnam to curb online piracy. In 2014, Vietnam finally passed into
1143 law Decree 72 which aims to regulate the Internet and curb online piracy. The prob-
1144 lem, however, is that this new Internet law appears to be regulating Internet freedom
1145 and dissent against the communist regime rather than curbing online media piracy.
1146 Thus, overshooting what is being recommended by the USA can be a form of covert
1147 resistance in order to comply to the USTR’s demand for Internet law against piracy.

1148 2.6  C
 hina and ASEAN as a Scourge
1149 for American IP Hegemony

1150 Of all economies in the Asia Pacific, the USA has specific focus on China and the
1151 Southeast Asian countries, particularly the members the ASEAN. China and the
1152 ASEAN constitute a new battleground which can make or break the American dom-
1153 inance in the region, specifically on digital and optical media. With China’s strong
1154 and subtle resistance to the American IP hegemony and strong trading connections
1155 with piracy-laden ASEAN countries, the US presence in the Asia Pacific region,
1156 therefore, becomes a necessity to protect American interest. Thus, the Obama
1157 administration has given a priority to the “return to Asia” foreign policy to establish
1158 bilateral relations with ASEAN states and to counter China’s growing economic
1159 and counterfeiting influence in the region and to monitor infringing activities of
1160 China and ASEAN economies. For the USA, China and the ASEAN constitute a
1161 blessing and a curse for the American IP hegemony.
 2.6  China and ASEAN as a Scourge for American IP Hegemony 65

The economic and market network of China and the Southeast Asian countries 1162
does only constitute a great promise for the American IP goods and services but also 1163
a scourge and a counter-hegemony to the US dominance in IP global trade. These 1164
fastest-growing economies with high Internet connection and rising appetite for IP, 1165
especially digital media, are also leaders in counterfeiting and piracy of American 1166
digital goods and services. Except for Singapore, China, Vietnam, Thailand, 1167
Indonesia, Malaysia, and the Philippines have long histories of counterfeiting and 1168
pirating American digital media, such as movies, music, computer and business 1169
software, video games, and other online digital media goods and services. They are 1170
also regularly listed in the Special 301 watch lists for being piracy hotspots in the 1171
[AU20] world (Table 2.1). 1172
If the USA, on one end of the pole, is acting as the hegemonic power behind the 1173
current IP global trade and legal protection regime, together with Japan and EU, 1174
China is on the opposite side of this pole, acting as the counter-hegemonic power or 1175
the leading social resistance power against the USA, together with the ASEAN 1176
countries, India, Brazil, and Russia. These big emerging markets share a belief in 1177
their entitlement to a more influential role in world affairs (Hurrell 2006, p. 2). With 1178
high piracy levels and being piracy hotspots and regularly included in the Special 1179
301 USTR watch lists, these economies are overtly and covertly opposing the cur- 1180
rent IP hegemonic regime crafted by the USA and supported by its allied developed 1181
economies. China, being a growing economic superpower and main challenger of 1182
the US hegemonic position, is also the leader in global piracy and the overall sym- 1183
bol of resistance of non-IP-exporting and ASEAN developing countries against 1184
strong IPR protection demanded by the USA. China is not only the number one 1185
pirate producer and exporter of counterfeit goods around the world but also the lead- 1186
ing old trading partner of ASEAN countries with long histories in the piracy watch 1187
list system of the USTR such as Malaysia, Thailand, Indonesia, Philippines, and 1188
Vietnam. While the USA leads in exporting genuine IP products and services around 1189
the globe, China leads in exporting counterfeit and fake goods to IP-consuming and 1190
developing countries. Counterfeit IP products such as bags, clothes, gadgets, and 1191
pirated DVDs and CDs and their replicating technologies originated from China to 1192

t1.1 Table 2.1  Frequency of Frequency

t1.2 China and some ASEAN
Priority Watch
t1.3 countries in USTR’s Watch
Country Watch List List t1.5
t1.4 Listsa
China t1.6
Indonesia 15 10 t1.7
Malaysia 2 11 t1.8
Philippines 6 19 t1.9
Singapore 3 t1.10
Thailand 13 10 t1.11
Vietnam 16 t1.12
a
Based on author’s personal count, data compiled t1.13
from the USTR’s Special 301 annual reports t1.14
from 1989 to 2013 t1.15
 66 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

1193 various countries around the world. The competition of the USA and China illus-
1194 trates how the two powers of global trade interact in the age of free trade and IP. Both
1195 parties are trading accusations of unfair trading practices. The USA, for instance,
1196 accused China of “dumping” products below their cost and failing to protect indi-
1197 vidual property rights. But China also accused the USA of unfairly imposing tariffs
[AU21]
1198 on selected Chinese imports” (Greenberg 2012). The USA sees China as the “mas-
1199 termind” of the global counterfeiting and piracy. But China sees the USA as the
1200 global master who controls the global IP trade in the world.
1201 The social resistance of China and the ASEAN against stronger American-style
1202 IPR protection occurs both in legal and nonlegal arenas. In the legal arena, China
1203 contested much of the US accusations and cases of piracy in the WTO, using law
1204 itself or the TRIPS provisions to oppose the hegemonic claims of the USA. It also
1205 uses a double-edge approach to IPR protection, issuing public statements acknowl-
1206 edging TRIPS and the need of a stronger IP protection to combat piracy but contin-
1207 ues to use cleverly a soft-glove approach to piracy, especially to theft of IP trade
1208 secrets of American multinationals, tolerating counterfeiting at home to allow locals
1209 to imitate American IP technology, putting barriers to American and foreign IP
1210 exports to prevent them from penetrating the local Chinese market, and allowing
1211 retail piracy to assist its huge informal or underground economy to benefit from the
1212 counterfeit trade. Oftentimes, China—as well as other piracy-laden countries—
1213 employs delaying tactics especially when confronted by the USTR on certain seri-
1214 ous cases of piracy. It makes diplomatic promises to take some concrete steps to
1215 pass new legislations to address the piracy problem, while making maneuvers to
1216 copy US IP technology and to delay the implementation of USTR’s
1217 recommendations.
1218 In some cases, China engages in strategic nonenforcement by simply refusing to
1219 prosecute infringers despite clear evidence of piracy, baffling American IP stake-
1220 holders, lobby groups, and the USTR. The 2014 IIPA Special 301 Report, for
1221 instance, has noted that the commitments made by China in the US–China Joint
1222 Commission on Commerce and Trade (JCCT) and the US–China Strategic and
1223 Economic Dialogue (S&ED) and the US–China Film Agreement remained unful-
1224 filled, making full market access difficult for American and foreign companies.
1225 Film distribution of imported films, for instance, remains under the control of two
1226 state-owned enterprises (SOEs) despite the government’s commitment to allow pri-
1227 vate Chinese enterprises to participate in film distribution (p. 22). Because of the
1228 tolerant attitude of the government toward piracy and counterfeiting, China remains
1229 a hub for the manufacturing and distribution of technologies and devices used
1230 around the world to circumvent access controls employed by copyright owners to
1231 manage access to their works and services. The USTR and IIPA often blamed the
1232 Chinese government for refusing to file criminal charges against manufacturers and
1233 distributors of these circumvention technologies and devices. Thus, it is apparent
1234 that China tolerates piracy to protect its local economy. As part of its covert resis-
1235 tance, the Chinese government may agree to some US IPR demands but becomes
2.7  China: The Tie That Binds the Philippines and Vietnam to Piracy 67

selective in implementing them for some strategic reasons that favor Chinese 1236
interests. 1237

2.7  C
 hina: The Tie That Binds the Philippines 1238

and Vietnam to Piracy 1239

The persistence of media piracy in the Philippines and Vietnam would be made pos- 1240
sible without a mediating network which sustains it—China. China has a long trad- 1241
ing history with ASEAN countries identified with piracy and counterfeiting 1242
including the Philippines and Vietnam. This preexisting socioeconomic trading net- 1243
work facilitates counterfeiting and piracy between China and the Philippines as well 1244
as between China and Vietnam before the US IP hegemony came into the picture. 1245
This human and material network has its own dynamics and behavioral standards 1246
which tend to resist economic and cultural arenas which the TRIPS and US IPR 1247
system aim to colonize. This preexisting trading relation makes it easier for China 1248
to export counterfeit goods, pirated discs, and illegal replicating technologies to the 1249
Philippines and Vietnam. China is the leading supplier of counterfeit discs and rep- 1250
licating technologies to these countries, and this has been consistently acknowl- 1251
edged by the USTR and IIPA in their yearly reports. 1252
China is the tie that binds the Philippines and Vietnam to media piracy. Facilitating 1253
networks that relate media piracy of these countries to China did not happen just a 1254
decade ago when the digital technology became popular. The economic and cultural 1255
ties between China and some ASEAN countries like the Philippines and Vietnam 1256
have long been established by the long history of trading and cultural exchanges 1257
between these countries. Furthermore, the Philippines and Vietnam have dynamic 1258
communities or districts of ethnic Chinese traders—Binondo and Cholon, respec- 1259
tively—which serve as mediating networks which facilitate counterfeit trade with 1260
mainland China. Some ethnic Chinese trading in these districts often participate in 1261
the various aspects of the piracy trade. In the Philippines, for instance, Chinese trad- 1262
ers provide paraphernalia or materials for packaging pirated DVDs to Quiapo 1263
pirated optical disc producers. They often act as lenders of capital for optical disc 1264
retail piracy. The American IP hegemony through USTR’s recommendations could 1265
not simply repress through the current IPR protection system the long cultural and 1266
historical ties between some piracy-laden countries and China without inviting 1267
social resistance from the local culture and from traders and law enforcers and their 1268
allied networks who benefit from the piracy trade. 1269
China’s trading ties with the Philippines and Vietnam took root thousands of 1270
years ago. Records show that active and regular trade of the Philippines with China 1271
occurred as early as the tenth century which was transacted mainly through Champa 1272
(Vietnam) coast. Mai-i (Mindoro) traders later circumvented Vietnam and pro- 1273
ceeded directly to China through Canton. China’s occupation of Vietnam, on the 1274
 68 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

1275 other hand, dates back a thousand years ago between the Han conquest of Nam Viet
1276 in the second century BC and the reassertion of Vietnamese independence as Dai
1277 Viet in AD 967. Counterfeit informal trade in the Philippines and Vietnam did not
1278 just flourish during the contemporary period. Counterfeit goods were already traded
1279 even before the advent of digital products and services such pirated CDs and DVDs.
1280 Furthermore, the geographical network is also an important factor that connects
1281 China to Vietnam and the Philippines. On the one hand, Vietnam is physically closer
1282 to China. China shares borders with Vietnam and thus it is easier to transport coun-
1283 terfeit goods in a cross-border trade. Ecological theories note the social effect of
1284 ecological proximity to people’s sociocultural and economic exchanges. By sharing
1285 common borders, China’s connections with Vietnam can be considered in many
1286 ways a family affair, with all the closeness of shared values and bitterness of close
1287 rivals. No country in Southeast Asia is culturally closer to China than Vietnam (Lim
1288 1999). Both countries are culturally aware of the cultural and trading ties that bind
1289 them together. These common ties facilitate the cross-border piracy trade. Moreover,
1290 the cities and district of Guangdong Province, the hotbed of counterfeiting and
1291 piracy, are relatively closer to the Vietnamese border. Owing to this geographical
1292 proximity as well as the lack of effective law enforcement, complicated terrain
1293 (mostly forests and sea), bureaucratic corruption, and smuggling, pirated goods and
1294 technologies can easily enter the Vietnamese border illegally. Moreover, through
1295 bribes and protection money that traders provide to corrupt Vietnamese and Chinese
1296 officials, the illegal cross-border delivery of pirated media and replicating machines
1297 to Vietnam can remain unnoticed by law enforcers in the borders. Bureaucratic cor-
1298 ruption is high in Guangdong as well as in the Vietnamese borders. In 2003, for
1299 instance, Guangdong’s people’s court settled 950 corruption cases with 1895 people
1300 found guilty including 46 government officials (Lo 2009, p. 72).
1301 The Philippines, on the other hand, may be thousands of miles away from China,
1302 but its cultural and trading history with the Chinese traders dated back as early as
1303 the tenth century.30 China is an old trading partner as well as a strong cultural influ-
1304 ence of the Philippines before the Spaniards and the Americans colonized the archi-
1305 pelago. Records show that trading between the Philippines with China occurred as
1306 early as the tenth century which was transacted mainly through Champa (Vietnam)
1307 coast. Mai-i (Mindoro) traders later circumvented Vietnam and proceeded directly
1308 to China through Canton. Through a tribute mission, the Mai-i traders were able to
1309 secure blessing from the Chinese Emperor by gifting him with pearls, frankincense,
1310 myrrh, and colorful animals (Lim 1999). Centuries may have passed but this trading
1311 tradition and cultural network have not been broken but instead improved and even
1312 developed into a more sophisticated platform with the advent of new technologies
1313 and advanced communication and transportation networks.

 For a more detailed description of the Philippines–China trade, see Lim (1999). The Political
30

Economy of Philippine-Chinese Relations. PASCN Discussion Paper No. 99–16 at http://pascn.

pids.gov.ph/files/Discussions%20Papers/1999/pascndp9916.pdf.
 2.8  Guangdong as Mediating Network for the Philippines and Vietnam 69

2.8  G
 uangdong as Mediating Network for the Philippines 1314

and Vietnam 1315

The Chinese provinces of Fujian and Guangdong have long been regarded as hot- 1316
beds for counterfeiting, pirating, and forgery. Guangdong is home to thousands of 1317
factories that produce legitimate and counterfeit products. A few years back when 1318
most pirated DVDs and CDs were directly imported from China, Guangdong has 1319
been regarded by law enforcers and some producers in the Philippines as the main 1320
hub of optical disc piracy in China. Fujian is another province for counterfeiting, 1321
especially for forged securities, documents, and gift certificates. It has printing 1322
facilities that can expertly copy any coupon, certificate, voucher, and other docu- 1323
ments. These two provinces symbolize China’s piracy and counterfeiting activities. 1324
But the Guangdong Province is the mediating network which directly facilitates the 1325
importation of pirated discs, equipment, and replicating technologies to the 1326
Philippines and Vietnam. No less than the USTR and the IIPA recognize the role of 1327
Guangdong as the main source of counterfeit optical media discs and replicating 1328
technologies to piracy hotspots in the ASEAN such as the Philippines and Vietnam. 1329
The most notorious cities and counterfeiting markets in Guangdong include 1330
the capital city Guangzhou, Shenzhen, Shantou, Chaoyang, and Jieyang and sev- 1331
eral markets in Baiyun District (2006 USTR Special 301, p. 21). Some key infor- 1332
mants of the sociological studies on which this book is based identified Guangzhou 1333
as one of the top sources of pirated discs for the Philippines and Vietnam. This 1334
city is widely known as a major piracy hub in China and one major exporter of 1335
counterfeit discs. In 2007, for instance, Chinese officials confiscated 1.6 million 1336
worth of pirated DVDs, the largest antipiracy haul in Guangzhou, China.31 1337
Guangdong is regarded as a hotbed for counterfeiting and pirating. It is home to 1338
thousands of factories in China that produce counterfeit goods as well as legiti- 1339
mate ones.32 It is often cited in Special 301 annual reports of the USTR as the hub 1340
of large-scale counterfeiting and the engine of export of pirated products in the 1341
Philippines, Vietnam, and other parts of the world. Pirated discs and equipment 1342
in China come from illegal optical disc plants in Guangdong Province. During 1343
the golden years of the Quiapo piracy network, when pirated discs were mostly 1344
imported from China, producers admitted that most of their counterfeit discs 1345
[AU22] were imported from secret warehouses in Guangzhou in Guangdong. With their 1346
contacts in Guangzhou, they were able to regularly purchase thousands of pirated 1347

31
 One of the biggest cases involving pirated discs manufactured abroad and imported to China is
Lin Yuehua’s case. Lin is the boss of a CD piracy and smuggling operation, the largest one which
has been so far uncovered in China. He and his 11 associates were sentenced to jail for life by an
intermediate people’s court in South China’s Guangxi Zhuang Autonomous Region. The court said
Lin and his men bought five advanced CD production lines worth more than US$ 10 million and
established a company abroad in 2002, mass-producing pirate DVDs and VCDs. The gang then
smuggled the pirated audio and video products into the Chinese mainland (Xinhua News Agency
November 24, 2006, retrieved from http://www.china.org.cn/english/China/190070.htm
32
 http://factsanddetails.com/china.php?itemid=356
 70 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

1348 discs of latest American films and music which were exported to the Philippines
1349 through customs brokers and corruption in the Bureau of Customs.

1350 2.9  Summary

1351 This chapter has provided a critical analysis and global context of the persistence of
1352 counterfeiting and media piracy in the Philippines and Vietnam using some socio-
1353 logical theories on power, hegemony, resistance, technology, and network. It situ-
1354 ates the media piracy in the Philippines and Vietnam within the ongoing struggle of
1355 hegemony and social resistance of the global IP trade led by the USA and China and
1356 their allied networks. It pursues three major arguments:
1357 First, it argued that piracy is primarily a form of social resistance, both active and
1358 passive of IP-consuming countries led by China and ASEAN countries like the
1359 Philippines and Vietnam against the hegemonic power of the USA in the IP trade.
1360 Realizing the crucial role of IP in the US economy and the need to curb piracy at
1361 home and abroad, the USA designed a new economic order and global legal infra-
1362 structure that connects trading with the USA with IPR protection of US IP exports
1363 abroad, utilizing multilateral institutions and trade agreements to realize this design.
1364 To hide its hegemonic design, the cultural mechanism of law as constituted in mul-
1365 tilateral agreements, FTAs, RTAs, and BTAs became a potent tool of the USA to
1366 control the direction of the global IP trade and to project a message that IPR protec-
1367 tion is for the good of all nations.
1368 Second, law is not only a maker of hegemony but also of social resistance.
1369 Following the legal pluralist theory, the official law is only one of the many norma-
1370 tive standards in society. Thus, it has cracks and loopholes where resistant parties
1371 can exploit and use to oppose hegemonic control. The IP regime which sees creative
1372 work as private property is basically patterned after the US IPR system. This is met
1373 with resistance by the Global South which sees creative work and IP as communal
1374 rather than privately owned.
1375 Finally, it argued that piracy in the Asia Pacific especially in the Philippines and
1376 Vietnam is a manifestation of resistance to the US hegemonic design in the Asia
1377 Pacific region. In the current trade configuration, the Asia Pacific, which comprises
1378 China and the ASEAN countries such as the Philippines and Vietnam, is the most
1379 promising and fastest-growing economic region in the world particularly in terms of
1380 consumption and market of IP and digital goods and services. Hence, the US IP
1381 hegemonic strategies are centered on the Asia Pacific, pressuring piracy-laden
1382 countries such as China, the Philippines, and Vietnam through the USTR to adopt
1383 legal measures to curb optical disc and online media piracy. But this does not pro-
1384 ceed without passive resistance. China has a long cultural and trading history with
1385 its neighboring ASEAN countries such as the Philippines and Vietnam which facili-
1386 tates the importation of counterfeit media goods and discs and replicating technolo-
1387 gies for media piracy. Finally, China’s Guangdong Province which is known and
1388 recognized by the USTR and IIPA as the hub of global piracy and counterfeiting
 References 71

serves as the main source of counterfeit goods and technologies for piracy and the 1389
central mediating network that connects China with media piracy networks of the 1390
Philippines and Vietnam. 1391

References 1392

[AU23] Amadeo, K. (n.d.). U.S. regional trade agreements. About.com US Economy. http://useconomy. 1393
about.com/od/tradepolicy/p/Regional_Trade.htm. Accessed 23 Apr 2014. 1394
Barinka, A. (2014). IBM wins most U.S. patents for 21st year in a row. Bloomberg. http://www. 1395
bloomberg.com. Accessed 24 Apr 2014. 1396
Bøås, M., & McNeill, D. (2003). Multilateral institutions: A critical introduction. London: Pluto 1397
Press. 1398
Bocock, R. (1986). Hegemony. New York: Tavistock Publications. 1399
Boiler, D., & Helfrich, S. (Eds.). (2012). The wealth of the commons, a world beyond market and 1400
state. The commons strategies group. Amherst: Levellers Press. http://wealthofthecommons. 1401
org/essay/intellectual-property-rights-and-free-trade-agreements-never-ending-story. 1402
Accessed 5 Nov 2014. 1403
Braithwaite, J., & Drahos, P. (2000). Global business regulation. Cambridge, MA: Cambridge 1404
University Press. 1405
Brown, A. G., & Stern, R. M. (2011). Free trade agreements and governance of the global trading 1406
system. The World Economy. Doi: 10.1111/j.1467-9701.2011.01333.x. 1407
Brummitt, C. (2012). Online piracy a big problem in Vietnam. Mercury News. http://www.mercu- 1408
rynews.com/ci_21967091/online-piracy-big-problem-vietnam. Accessed 10 May 2014. 1409
Busaniche, B. (n.d.). Intellectual property rights and free trade agreements: A never-ending story. 1410
http://wealthofthecommons.org/essay/intellectual-property-rights-and-free-trade-agreements- 1411
never-ending-story 1412
Cain, M. (1983). Gramci, the state, and the place of law. In D. Sugarman (Ed.), Legality, ideology, 1413
and the state. London: Academic Press. 1414
[AU24] Castells, M. (2009). The rise of the network society (2nd ed.). Oxford: John Wiley-Blackwell. 1415
Coombe, R. (1998). The cultural life of intellectual properties: Authorship, appropriation, and the 1416
law. Durham: Duke University Press. 1417
Cox, R. W. (1981). Social forces, states and world orders: Beyond international relations theory. 1418
Millennium: Journal of International Studies, 10(2), 126–155. 1419
De Vera, B. A. (2014). 2 US anti-piracy groups slams rising online piracy in PH. Newsbytes 1420
Philippines. http://www.newbytes.ph. Accessed 28 May 2014. 1421
Economics and Statistics Administration & United States Patent and Trademark Office. (2012). 1422
Intellectual property and the U.S. economy: Industries in focus. U.S. Department of Commerce. 1423
http://www.uspto.gov/news/publications/IP_Report_March_2012.pdf. Accessed 19 Apr 2014. 1424
Economics & Statistics Administration. (2012). Intellectual property and the U.S. economy: 1425
Industries in focus. U.S. Department of Commerce. http://www.esa.doc.gov/Reports/ 1426
intellectual-­property-and-us-economy-industries-focus. Accessed 30 Apr 2014. 1427
Friedman, L. M. (1975). The legal system: A social science perspective. New York: Russell Sage 1428
Foundation. 1429
Friedman, L. M. (1997). The concept of legal culture: A reply. In D. Nelken (Ed.), Comparing 1430
legal cultures. Brookfield: Darthmouth. 1431
Gaines, J. M. (2000). Contested culture, the image, the voice, and the law. London: University of 1432
North Carolina Press. 1433
Giddens, A. (1984). The constitution of society. Cambridge: Polity. 1434
Giddens, A. (1985). The nation-state and violence: Volume two of a contemporary critique of his- 1435
torical materialism. Cambridge: Polity. 1436
 72 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

1437 Gil, P. (2014). The 30 best torrent download sites of 2014, where users go to find music and movie
1438 files. http://netforbeginners.about.com/od/peersharing/a/torrent_Search.htm. Accessed 22 May
1439 2013.
1440 Greenberg, M. R. (2012). Time for a China-U.S. free trade agreement. China does not have to
1441 invest here, but it is to America’s advantage. The Wall Street Journal. http://online.wsj.com.
1442 Accessed 19 Apr 2014.
1443 Griffiths, A. (2002). Legal pluralism. In R. Banakar & M. Travers (Eds.), An introduction to law
1444 and social theory (pp. 289–310). Oxford: Hart Publishing.
1445 Guillet, D. (1998). Rethinking legal pluralism: Local law and state law in the evolution of water
1446 property rights in northwestern Spain. Comparative Studies in Society and History, 40(1), 42–70.
1447 Hall, S. (1977). Culture, media and the ideological effect. In J. Curran et al. (Eds.), Mass commu-
1448 nication and society (pp. 315–348); reprint, Beverly Hills: Sage Publications, 1952.
1449 Hurrell, A. (2006). Hegemony, liberalism and global order: What space for would-be great pow-
1450 ers? International Affairs, 82(1), 1–19.
[AU25]
1451 Koch, J., Smith, M., & Telang, R. (2011). Camcording and film piracy in Asia-Pacific economic
1452 cooperation economies. International Intellectual Property Institute (IIPI).
1453 Krikorian, G. P., & Szymkowiak, D. M. (2007). Intellectual property rights in the making: The
1454 evolution of intellectual property provisions in US free trade agreements and access to
1455 medicine. The Journal of World Intellectual Property, 10(5), 388–418. Doi:
1456 10.1111/j.1747-1796.2007.00328.x.
[AU26]
1457 Landes, W. M., & Posner, R. A. (2003). The economic structure of intellectual property rights.
1458 Cambridge, MA: Harvard University Press.
1459 Lazarus-Black, M., & Hirsch S. F. (Eds.). (1994). Introduction/performance and paradox:
1460 Exploring law’s role in hegemony and resistance. In M. Lazarus-Black & S. F. Hirsch (Eds.),
1461 Contested states: Law, hegemony, and resistance (pp. 1–31). New York: Routledge.
1462 Lim, B. (1999).The political economy of Philippines-China relations. PASCN Discussion Paper
1463 No. 99-16. http://pascn.pids.gov.ph/DiscList/d99/s99-16.pdf
1464 Lo, S. S. (2009). The politics of cross-border crime. New York: M.E. Sharpe, Inc.
1465 Lu, D. (2010). China’s path to the world’s largest economy: Limits of extrapolations. East Asian
1466 Institute, National University of Singapore. www.eai.nus.edu.sg/Vol2No4_LuDing.pdf.
1467 Accessed 6 Sept 2014.
[AU27]
1468 Mann, M. (1984). The autonomous power of the state: Its nature, causes and consequences.
1469 Archives Europe ́ennes de Sociologie, 25, 185–213.
1470 Manoli, P. (2013). Political economy aspects of deep and comprehensive free trade agreements.
1471 Eastern Journal of European Studies, 4(2), 51–73.
1472 Maskus, K. E. (2000). Intellectual property rights in the global economy. Washington, DC:
1473 Institute for International Economics.
1474 McMillan, J., & Woodruff, C. (1999). Dispute prevention without courts in Vietnam. San Diego:
1475 Graduate School of International Relations and Pacific Studies University of California.
1476 http://202.154.59.182/ejournal/files/Dispute%20Prevention%20without%20Courts%20in%20
1477 Vietnam%20John%20McMillan.pdf
1478 Michael, R. P. (1995). Playing by the rules: American trade power and diplomacy in the Pacific.
1479 Washington, DC: Georgetown University Press.
1480 Ming-Te., & Tai Ting Lu. (2011). Sino-U.S. Strategic competition in Southeast Asia: China’s rise
1481 and U.S. foreign policy transformation since 9/11*. Political Perspectives, 5(3), 96–119. http://
1482 china.praguesummerschools.org/files/china/2china2012.pdf
1483 Mitchell, T. (1990). Everyday metaphors of power. Theory and Society, 19, 545–577.
1484 Moore, S. F. (1978). Law as process: An anthropological approach. London: Routledge & Kegan
1485 Paul.
1486 Morin, J.-F. (2006). Tripping up TRIPS debates: IP and health in bilateral agreements. International
1487 Journal of Intellectual Property Management, 1(1–2), 37–53.
1488 Morin, J.-F. (2009). Multilateralizing TRIPs-plus agreements: Is the US strategy a failure? The
1489 Journal of World Intellectual Property, 12(3), 175–197. Doi: 10.1111/j.1747-1796.2009.00364.x.
 References 73

Morrison, W. (2014). China-US trade issues. Congressional research service. https://www.fas.org/ 1490
sgp/crs/row/RL33536.pdf. Accessed 27 Apr 2014. 1491
Nathan Associates Inc. (2003, December). Intellectual property and developing countries: An 1492
overview. Briefing Paper. https://www.hsdl.org/?view&did=446296 1493
Orsi, F., & Coriat, B. (2006). The new role and status of intellectual property rights in contempo- 1494
rary capitalism. Competition & Change, 10(2), 162–179. Doi: 10.1179/102452906X104222. 1495
Oyejide, A. T. (1990). Africa and the Uruguay round. The World Economy, 13(3), 427–433. 1496
Peller, G. (2011). History, identity, and alienation. Connecticut Law Review, 43(5). http://archive. 1497
connecticutlawreview.org/documents/Peller.pdf 1498
Petri, P. A., &, Plummer, M. G. (2014). ASEAN centrality and the ASEAN-US economic relation- 1499
ship. Policy Studies, 69. http://www.eastwestcenter.org. Accessed 11 May 2014. 1500
Pugatch, M. P. (2004). The international political economy of intellectual property rights. 1501
Cheltenham: Edward Elgar Publishing Limited. 1502
Rada, S. (2014). Interpreting the World Bank’s latest: East Asia and Pacific economic update. The 1503
Wang Post. http://thewangpost.com. Accessed 10 May 2010. 1504
Rauch, J. E., & Trindade, V. (2002). Ethnic Chinese networks in international trade. The Review of 1505
Economics and Statistics, 84(1), 116–130. http://www.jstor.org/stable/3211742. Accessed 13 1506
Apr 2012. 1507
Riker, D. (2012). Has special 301 promoted US manufacturing exports? Review of International 1508
Economics, 20(2), 288–298. Doi: 10.1111/j.1467-9396.2012.01022.x. 1509
Ritzer, G. (2010). Globalization: The essentials. West Sussex: Wiley-Blackwell. 1510
[AU28] Sarat, A. (1990). “. . . The law is all over”: Power, resistance, and the legal consciousness of the 1511
poor. Journal of Law and Humanities, 2, 343–379. 1512
Saul, R. (2012). Rethinking hegemony: Uneven development, historical blocs, and the world eco- 1513
nomic crisis. International Studies Quarterly, 56, 323–338. 1514
Schott, J. (2006). Free trade agreements and US trade policy: A comparative analysis of US initia- 1515
tives in Latin America, the Asia-Pacific region, and the Middle East and North Africa. The 1516
International Trade Journal, 20(2), 95–138. 1517
Scott, W. H. (1983). Filipinos in China 1500. Asian Studies, 21, 1–19. 1518
Scott, J. C. (1987). Weapons of the weak: Everyday forms of peasant resistance. New Haven: Yale 1519
University Press. 1520
Scott, J. C. (1990). Domination and the arts of resistance: Hidden transcripts. New Haven: Yale 1521
University Press. 1522
Simons, J. J. (1999) Cooperation and coercion: The protection of intellectual property in develop- 1523
ing countries. Bond Law Review, 11(1), Article 5. http://epublications.bond.edu.au/blr/vol11/ 1524
iss1/5. Accessed 4 Sept 2014. 1525
Siwek, S. E. (2012). Copyright industries in the U.S., the 2013 report. International Intellectual 1526
Property Alliance (IIPA). http://www.iipa.com/pdf/2013_Copyright_Industries_Full_Report. 1527
PDF. Accessed 17 Jan 2015. 1528
Smart, C. (1989). Feminism and the power of law. London: Routledge. 1529
Stewart, A. (2001). Theories of power and domination. London: Sage Publication. 1530
Stiles, K. W., & Akaha, T. (1991). International political economy: A reader. New York: 1531
HarperCollins. 1532
Sum, N.-L. (2003). Informational capitalism and U. S. economic hegemony. Critical Asian Studies, 1533
35(3). London: Routledge. 1534
The Economist. (2014, January 25). China loses its allure. http://www.economist.com/news/ 1535
leaders/21595001-life-getting-tougher-foreign-companies-those-want-stay-will-have-adjust- 1536
china. Accessed 25 May 2014. 1537
Tian, D. (2008). The USTR special 301 reports: An analysis of the US hegemonic pressure upon 1538
the organizational change in China’s IPR regime. Chinese Journal of Communication, 1(2), 1539
224–241. 1540
[AU29] Trading Economics. (2014). China exports. http://www.tradingeconomics.com/china/exports. 1541
Accessed 24 Apr 2014. 1542
 74 2  US Global Hegemony in Intellectual Property and the Politics of Piracy and Resistance

1543 Trending Economics. (2014). Indonesia GDP accelerates in Q4 2013. Trending Economics. http://
1544 www.tradingeconomics.com. Accessed 10 May 2014.
1545 U.S. Department of Commerce. (2012). Intellectual property and the U.S. economy: Industries in
1546 focus. http://www.uspto.gov/sites/default/files/news/publications/IP_Report_March_2012.pdf
1547 UNESCO & UNDP. (2013). Creative economy report 2013 special edition: Widening local devel-
1548 opment pathways. http://www.unesco.org/culture/pdf/creative-economy-report-2013.pdf.
1549 Accessed 4 Nov 2014.
1550 Warshofsky, F. (1994). Patent wars: The battle to own world’s technology. New York: Wiley.
1551 Williams, R. (1973). Base and superstructure in Marxist cultural theory. New Left Review, 82,
1552 3–16.
1553 World Bank. (2014). Thailand overview. http://www.worldbank.org/en/country/thailand/overview.
1554 Accessed 10 May 2014.
1555 Xing, Y., & Detert, N. (2010). How the iPhone widens the United States trade deficit with the
1556 People’s Republic of China. ADBI Working Paper 257. Tokyo: Asian Development Bank
1557 Institute. http://www.adbi.org/working-paper/2010/12/14/4236.iphone.widens.us.trade.deficit.
1558 prc/. Accessed 4 Sept 2014.
[AU30]
1559 Yap, K. L., & Yap, C. (2014, January 30). Philippines posts strongest two years of GDP. Bloomberg.
1560 Yngvesson, B. (1993). Virtuous citizens, disruptive subjects: Order and complaint in a New
1561 England court. New York: Routledge.
 Author Queries
Chapter No.: 2 0002610451

Queries Details Required Author’s Response

AU1 Please provide details of Scott (1985), Chirot (1985), Collins
(1986), Hall (1985), Frank (1967), O’Connor (1973), Hooks
(1991), Stuart Hall (1976), Wallerstein (1991, 1974), Arrighi
(1994), Chase-Dunn & Hall (1997), Saull (2012), Dent (2010),
Khatoon (2013), Caporaso (1992), Yarbrough & Yarbrough
(1987), Greenaway & Milner (2001), Brighenti (2011),
Tamahana (2007), Ryan (1995), Bello (1996), Nielsen (2011),
IIPA Special 301 Report (2011, 2013, 2014), American
Chamber of Commerce in Vietnam (2013), USTR Special 301
(2006), Ruggenar (2011) in the reference list. [metadata
content]
AU2 Stewart (2002) has been changed to Stewart (2001) here and in
the other occurrences as per the reference list. Please check if
okay.
AU3 Please check if edit to the sentence starting “For conflict,
scholars ....” is OK.
AU4 Saull (2012) has been changed to Saul (2012) as per the
reference list. Please check if okay.
AU5 Please check if inserted citations for Figures 2.1–2.7 are okay.
AU6 Please provide closing quote in the sentence starting “Since“[l]
aw is all....”.
AU7 Smart (1986) has been changed to Smart (1989) as per the
reference list. Please check if okay.
AU8 Pugatch (2002) has been changed to Pugatch (2004) as per the
reference list. Please check if okay.
AU9 Please provide closing quote in the sentence starting “De
Certeu argued that “people....”.
AU10 Coombe (2001) has been changed to Coombe (1998) as per the
reference list. Please check if okay.
AU11 Please provide opening quote in the sentence starting “But
with the contemporary capitalism....”.
AU12 Please provide closing quotation mark for sentence starting “It
is highly…”
AU13 Ming-Te and Ting-Liu (2012) has been changed to Ming-Te
and Tai Ting Lu (2011) as per the reference list. Please check
if okay.
AU14 Please provide closing quote in the sentence starting “The Asia
Pacific region....”.
AU15 Please check sentence starting “Illegal camcording or
recording …” for completeness.
AU16 In the quoted text starting “Copyright materials....”please
check if “can easily reproduced” be changed to “can be easily
reproduced.”
AU17 Please provide opening quotation mark for “Mobile apps
are…”
AU18 Please provide opening quotation mark for sentence starting
“The rest are …”
AU19 Please provide opening quote in the sentence starting “Experts
indicate that up to....”.
AU20 Please check if inserted citation for Table 2.1 is okay.
AU21 Please provide opening quote in the sentence starting “But
China also accused the....”.
AU22 Please provide closing parenthesis in the sentence starting
“The gang then smuggled…” of footnote 31.
AU23 Please cite Amadeo (n.d.), Barinka (2014), Boiler & Helfrich
(2012), Busaniche (n.d), Economics and Statistics
Administration & United States Patent and Trademark Office
(2012), Economics & Statistics Administration (2012),
Friedman (1997), Lu (2010), Mann (1984), Morin (2009),
Morrison (2014), Rauch & Trindade (2002), Rada (2014),
Michael (1995), Scott (1983), Trading Economics (2014),
Trending Economics (2014), U.S. Department of Commerce
(2012), World Bank (2014), Xing & Detert (2010), Yap & Yap
(2014) in the text.
AU24 Please check if the inserted publisher locations for Castells
(2009), Griffiths (2002), Pugatch (2004) is okay.
AU25 Please provide publisher location for Koch et al. (2011), Lu
(2010).
AU26 Please check if updated publisher name and publisher location
for Landes and Posner (2003) is okay.
AU27 Please check if updated page range for Mann (1984) is okay.
AU28 Please check if updated journal title, volume number and page
range for Sarat (1990) is okay.
AU29 Please check if the inserted year is okay for Trading Economics
“China exports” (2014).
AU30 Please check if the inserted publisher name is okay for Yap &
Yap (2014).