Annotated Leading Copyright Cases in Major Asian Jurisdictions

In Asia, even in common law jurisdictions such as Singapore and Hong Kong, the development of intellectual property (“IP”) law is mostly driven by statutory law, namely parliament-made law, which is rightly so, to the extent that exclusive rights are better reserved for the legislature to create and define. Since the 1980s, statutory IP law in Asia has principally evolved as a result of pressure from trade talks with the United States, its dominant trading partner. Thus, technocrats in trade ministries and IP offices and interest groups have dominated the direction of IP legislation. There are many easily discernible downsides to this system, including (but not limited to) uneven regulation of the same issue across different legal regimes (such as exhaustion, fair use, and compulsory licensing) and creation of IP regimes that prioritize developmental needs in international trade negotiations over important issues of national public interest. In this system, IP rights seem to trump every other right, sometimes even basic human rights, and consumer protection.

In the copyright arena, Asia has special features. Being home to almost half of the world’s population, Asia is the fastest growing economic region (which stimulates the need for creative works) and has been the world’s factory (technically capable of exploiting creative works) for decades. And yet, Asia lacks effective collective management organizations (“CMOs”) to bridge the gap between rightsholders and users, rendering copyright regimes only law in book, rather than law in action. Notable exceptions include Japan, Hong Kong, and perhaps Singapore. The lack of functional CMOs almost unavoidably leads to rampant piracy in Asia, which triggers overuse of criminal sanctions.