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PRA. EGER PERSPECTIV E 5
INTELLECTUAL
PROPERTY AND
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Intellectual Property and Information Wealth

Intellectual Property and
Information Wealth
Issues and Practices in the Digital Age
VOLUME 4
International Intellectual Property
Law and Policy
EDITED BY
Peter K. Yu
PRAEGER PERSPECTIVES
■Pa
Westport, Connecticut
London

Library of Congress Cataloging-in-Publication Data
Intellectual property and information wealth ; issues and practices in the digital age /
Edited by Peter K. Yu.
p. cm.
Includes bibliographical references and index.
ISBN 0-275-98882-1 (set: alk, paper)-ISBN 0-275-98883-X (vol 1 :
alk. paper)—ISBN 0-275-98884-8 (vol 2 : alk. paper) —ISBN 0-275-98885-6
(vol 3 : alk. paper) —ISBN 0-275-98886-4 (vol 4 : alk. paper)
1. Intellectual property—United States. 2. Copyright—Lhaited States.
3. Intellectual property. 4. Copyright. I. Yu, Peter K.
KF2979.Y8 2007
346.7304'8-dc22 2006031062
British Library Cataloguing in Publication Data is available.
Copyright © 2007 by Peter K. Yu
All rights reserved. No portion of this book may be
reproduced, by any process or technique, without the
express written consent of the publisher.
\
Library of Congress Catalog Card Number:
ISBN: 0-275-98882-1 (set)
0-275-98883-X (vol. 1)
0-275-98884-8 (vol. 2)
0-275-98885-6 (vol. 3)
0-275-98886-4 (vol. 4)
First published in 2007
Praeger Publishers, 88 Post Road West, Westport, CT 06881
An imprint of Greenwood Publishing Group, Inc.
www.praeger.com
Printed in the United States of America
0"
The paper used in this book complies with the
Permanent Paper Standard issued by the National
Information Standards Organization (Z39,48-1984).
10 9 8 7 6 5 4 3 2 1

r 346.73048 161 2007 v.4
Intellectual property and
information wealth : issues
and practices in the digital
Contents
Preface ix
1 The Architecture of the International Intellectual Property System 1
Graeme B. Dinwoodie
2 The TRIPS Agreement and the Doha Round: History and Impact on
Economic Development 23
Daniel J. Gervais
3 Five Disharmonizing Trends in the International Intellectual
Property Regime 73
Peter K. Yu
4 Beyond FTA Negotiations: Implementing the New Generation of
Intellectual Property Obligations 113
David Vivas Eugui and Johanna von Braun
5 Doing Deals with Al Capone: Paying Protection Money for
Intellectual Property in the Global Knowledge Economy 141
Peter Drahos
6 The Economics of Global Intellectual Property and Economic
Development: A Survey 159
Keith E. Maskus

vi
7
8
9
10
11
12
13
14
15
16
17
18
Contents
The Role of Intellectual Property in Promoting International Trade
and Foreign Direct Investment 187
Daniel Chow
Enforcement and Protection: Internal and External Considerations 201
Timothy P. Trainer
Recognizing Authority in the Marketplace: The Curious and
Ubiquitous Problem of Gray Markets 22 5
Shubha Ghosh
International Intellectual Property, Conflicts of Taws, and Internet
Remedies 243
Paul Edward Geller
The EC Duration Directive: An Example of the Complexity of EC
Copyright Harmonization 257
Silke von Lewinski
Slice of Parma Ham: Understanding the Protection of Geographical
Indications 283
Dwijen Rangnekar
Across the Pond and Back Again: Digital Database Protection in the
European Union and the United States 303
Jacqueline D. Lipton
Intellectual Property, Biological Resources, and Traditional
Knowledge
Graham Dutfield
Knowledge 319
Of Plant Variety Protection, Agricultural Subsidies, and the WTO 345
Srividhya Ragavan
Indigenous Peoples and Emerging Protections for Traditional
Knowledge 373
Angela R. Riley
Approaches to Accessing Essential Medicines and the TRIPS
Agreement 393
James Thuo Gathii
Resistance in a Digital World 415
Debora J. Elalbert

Contents
19 The Romance of the Public Domain
Anupam Chander and Madhavi Sunder
About the Editor and Contributors
Index

Preface
Information is the lifeblood of a knowledge-based economy, and intellectual
property laws and policies play a central role in transforming this intangible asset
into economic, social, and cultural wealth. Whether these various forms of wealth
will be controlled by a privileged few or broadly distributed among the public at
large will depend on how laws, policies, and institutions are designed. Questions
about where to strike the balance in the intellectual property system are not new;
they existed long before the invention of the printing press. However, they have
never been as important as they are today.
This multivolume set was developed in response to the growing importance
of intellectual property and innovation policies and the new challenges brought
about by the digital revolution. The recent explosion of interest in the area was
bittersweet for many intellectual property experts, who started the profession when
the area was still in the backwater. As senior legal scholars reminisced, when they
began their careers, they would have been be lucky to find a school that would
allow them to teach a class on intellectual property law. Even if they were able to
do so, that "niche" class might very well have been the only one, and the rest of
their teaching duties would be devoted to other subject areas, such as property,
contracts, or commercial law.
In recent years, however, the subject of intellectual property has taken on
a new life. Lawyers want to practice intellectual property law; businesspeople
pay greater attention to their technological assets; and the subjects of copyrights,
patents, and trademarks have fascinated students of varying ages and disciplines.
Regardless of whether one has training in this specialized field, there is always
a need to know something about intellectual property, to understand the scope
and limits of its laws, and to consider licensing and permissions matters. Indeed,
today's mainstream media are inundated with intellectual property-related stories,
which range from copyright challenges posed by iPods and file-sharing services

X
Preface
to the potential misuse of trademarked Barbie dolls in popular culture to the lack
of access to patented medicines in the less developed world.
When Praeger Publishers approached me about this project, I immediately
accepted but was also somewhat concerned. It is virtually impossible to cover all
of the important aspects of intellectual property in a book project. Book series and
academic journals already exist to cover the subject, and each major intellectual
property topic is worthy of a book in its own right. Nevertheless, the opportunity to
develop a comprehensive mini-library on intellectual property was very tempting,
and there was an urgent need for an accessible collection that allows intellectual
property experts to share their insights with lay readers.
So, I listed all of the basic and cutting-edge issues in the intellectual prop-
erty area and classihed them based on the three main branches of intellectual
property law (copyrights, patents, and trademarks). I also added a volume to cover
international developments, which have become increasingly important in our
globalized world. Although I have occasionally turned to well-established experts
who are widely known for the topics they covered, I also introduced many new
voices from the academy and on the frontlines. It is my hope that a mix of these old
and new voices will bring interesting ideas that further stimulate the intellectual
property debate.
This book set consists of four volumes: (1) Copyright and Related Rights;
(2) Patents and Trade Secrets; (3) Trademark and Unfair Competition; and
(4) International Intellectual Property Law and Policy. Volume 1 focuses on
protections to novels, films, sound recordings, computer programs, and other
creative products and covers such issues as authorship, duration of copyright, fair
use of copyrighted materials, and the implications of the Internet and peer-to-
peer file sharing. Volume 2 explains the fundamental protections to inventors
of devices, mechanical processes, chemical compounds, and other inventions
and examines such issues as the scope and limits of patent protection, research
exemptions and infringement, intellectual property in the software and biotech
industries, and trade secrets. Volume 3 looks at the protections to distinctive
symbols and signs, including brand names and unique product designs, and
features chapters on consumer protection, trademark and the first amendment,
brand licensing, publicity and cultural images, and Internet domain names.
Volume 4 takes the discussion to the global level, addressing a wide range of issues,
including not only enforcement of intellectual property rights across borders,
but also their implications for international trade and investment, economic
development, national sovereignty, human rights, and public health.
Although all four volumes are conceived as a single project—and a few
chapters have found their way from one volume to another during the production
process —each of these volumes was also designed to be read on its own. It is our
goal that these volumes offer both basic overviews and in-depth discussions of
some of the latest, cutting-edge developments in the field. I hope you will find
them interesting and useful.

Preface xi
This project would not have been possible without the generous support
of all of the contributors, who have very busy schedules and competing writing
commitments. They agreed to participate in the project on short notice and
worked hard to honor our very tight production deadlines, which were established
to ensure the timeliness of the materials. I am very appreciative of their efforts and
hope that the final product will make them proud. I also learned a tremendous
amount from their intellectually stimulating contributions, not to mention my
considerable enjoyment of working with them throughout the project.
In addition, I would like to thank my academic home, Michigan State Uni-
versity College of Law, and my alma mater and past academic home, Benjamin
N. Cardozo School of Law at Yeshiva University, for providing generous sup-
port for the many intellectual property conferences I put together over the years.
Dean Terence Blackburn of Michigan State University and Deans Paul Verkuil,
Stewart Sterk, and David Rudenstine of Cardozo Law School deserve special
recognition. These conferences not only provided me with opportunities to meet
and collaborate with many of the contributors, but also allowed the contributors
to exchange and improve ideas that eventually made their way into these volumes.
I would also like to thank my editor, Nicholas Philipson, for his patience
throughout the development of the project and his support at times when the
deadlines seemed impossible. His preference for carrots to sticks is greatly appre-
ciated. I am grateful to Shana Jones, the Development Editor and the project's
midwife, who joined the project at a critical juncture to ensure its timely and
healthy delivery. And I am indebted to one of the contributors, Tyler Ochoa, for
recommending me to the publisher for this project in the first place; Alexander
Kanous for his consistently superb research and editorial assistance; and Michael
O'Connor and his production team for their expedited efforts and professional
treatment of the manuscripts.
Finally, I wish to thank Praeger Publishers for understanding the need for
striking a balance in the intellectual property system and for broad distribution
of information wealth. Its flexible copyright policy has both maximized the par-
ticipation of contributors and ensured the wide dissemination of ideas in the
volumes. I hope all publishers are as visionary and accommodating.
I dedicate these volumes to my colleagues in the intellectual property world,
whose generosity has made the field especially welcoming, whose ideas and
insights continue to inspire, and whose scholarly contributions have made all of
us intellectually wealthy.
Peter K. Yu
East Lansing, Michigan
October 2006

The Architecture of the International Intellectual
Property System
Graeme B. Dinwoodie*
In June 2001, the Hague Conference on Private International Law met to consider
the draff Hague Convention on Jurisdiction and Foreign Judgements in Civil and
Commercial Matters (the "Draft Hague Convention").1 Around the same time,
Professors Rochelle Dreyfuss and Jane Ginsburg authored the Draft Convention
on Jurisdiction and Recognition of Judgments in Intellectual Property Matters
(the "Dreyfuss-Ginsburg proposal"),2 based upon which the American Law Insti-
tute has since built its project to develop principles concerning jurisdiction and
recognition of judgments in intellectual property matters. Each of these propos-
als (none of which has yet reached fruition) would enhance the role of national
courts in the international intellectual property system. But the suggestion that
national courts have any role to play in international intellectual property law-
making appears to run counter to conventional understanding. In this chapter,
I sketch a vision of the contemporary international intellectual property system
that accommodates (and actively seeks to incorporate) national judicial activity,
and I seek to situate the proposals within that environment.
The first section of this chapter describes the classical architecture of the
international intellectual property system and the basic conceptual and institu-
tional pillars on which that system was built. Historically, national courts have
played a relatively limited role in that system. The next section discusses some of
the ways in which the system of international intellectual property law is chang-
ing, and notes that (even without the infrastructure envisaged by the Hague and
Dreyfuss-Ginsburg proposals) national courts are becoming more involved in the
construction of international intellectual property law. Finally, in the concluding
section, I suggest how the mechanisms that underlie the Draft Hague Convention
* This chapter was adapted from an earlier article published in 77 Chi.-Kent. L, Rev. 993 (2002). I
am grateful to Brian Havel for comments on an earlier draft of this chapter.

2
International Intellectual Property Law and Policy
and the Dreyfuss-Ginsburg proposal might further alter and enhance the emerg-
ing role of national courts in the development of the system of international
intellectual property law.
THE CLASSICAL SYSTEM OF UNTERNATIONAL INTELLECTUAL PROPERTY LAW
The beginnings of a developed system of international intellectual property
law can be found in the 1880s, with the conclusion of the Paris' and Berne
Conventions.4 These treaties were built around two basic propositions.5 First,
signatory states had to provide in their domestic law certain minimum levels
of intellectual property protection, so-called substantive minima. Second, as a
general rule, a signatory state was obliged to offer protection to nationals of other
signatory states that matched the protection it afforded its own nationals. This is
the principle of national treatment.6
This basic structure —national treatment plus substantive minima —has per-
sisted throughout the twentieth century. Although the substantive minima obli-
gations have periodically been revised upward to require greater and different
protection, the conceptual approach has endured. Indeed, it remains the domi-
nant approach in current intellectual property treaties.' Some essential charac-
teristics of this system are worth noting. In particular, this approach only barely
intruded upon the national sovereignty of signatory nations. This was because of
several features. First, the substantive minima were initially quite undemanding.8
They were in most cases meant to reflect a consensus position, as codifications
of existing state practice.9 Second, many central concepts (such as who is an
"author" of a copyrighted work) were left open for signatory states to develop in
accordance with their own national policies and values. And this latitude was
affirmed in practical terms by the fact that the obligations undertaken by states
were not backed up with effective enforcement mechanisms. Although provision
was made in later revisions of the Berne and Paris Conventions to refer disputes
between states regarding the meaning of those conventions to the International
Court of justice,10 this was never done.11
The international intellectual property system need not have developed in
this manner. In the debates leading up to the adoption of the Berne Convention,
some delegations advanced the alternative notion of a universal copyright law.
But these attempts were defeated by the pragmatic demands of greater national
control over the course of copyright law.12 Similar tensions, though less starkly
presented, can be found in the development of the Paris Convention.13
In this scheme, national courts had very little role to play in the construc-
tion of international intellectual property law. Public international standards in
the treaties found their way into national law largely through legislative imple-
mentation in domestic law.14 This was particularly true in the United States
(where many, if not all, of the primary intellectual property treaties are not self-
execnting).15 And the treaties did not in any event contain a comprehensive
code that could substitute for general domestic legislation. National courts thus

Architecture of International Intellectual Property System 3
interpreted local intellectual property law, even if the content of that law had in
part been influenced by international obligations.
Moreover, the cases that courts were called upon to resolve principally in-
volved national rights. Even if international intellectual property treaties were
self-executing, intellectual property rights remained national in scope. Territo-
riality of rights is a fundamental premise of classical international intellectual
property law. There is no such thing as an international copyright, or interna-
tional trademark, or international patent.16
Finally, the disputes that confronted courts were largely national in nature.
National courts did, of course, have some occasion to address issues of private in-
ternational law where cross-border effects occurred.1' But such events were rarer
than today. And matters of private international law were left largely untouched
by the intellectual property conventions.18
Indeed, in the United States, courts generally have substantial discretion
regarding the rules of private international law (such as jurisdiction to adju-
dicate, choice of law or applicable law, and recognition and enforcement of
judgments).14 Domestically, the United States Constitution, at least as inter-
preted, imposes greater restraints on the exercise by courts of personal juris-
diction than on the assertion of prescriptive jurisdiction (i.e., the Constitution
contributes to the rules of personal jurisdiction but leaves choice of law rules
largely unregulated).20 And, although recognition of foreign judgments is the
norm in U.S. law, this flows neither from constitutional mandate—the Full Faith
and Credit Clause does not extend to the international context21 — nor from any
international treaty obligations assumed by the United States.22
Of course, some private international law rules developed from those inter-
national intellectual property disputes that did arise.2' Flowing from the premise
that all rights were national, and from the mind-set that regarded intellectual
property laws as public in nature, courts were reluctant to adjudicate disputes
involving foreign intellectual property rights.24 Thus, although there is an impor-
tant difference between having jurisdiction to adjudicate a case, and the choice
of law or law applicable to the case, courts—both in the United States and
elsewhere—would decline to hear a case if their own law was not being applied.
The question of applicable law drove the exercise of power to adjudicate.25
As a consequence, where infringement did occur in several states, suits
typically had to be hied in separate national courts seeking relief for each national
infringement.26 Determining the applicable law was thought to be quite easy:
where did the reproduction, the use, the publication, or the sale, occur? The
place of such acts would be the place of infringement. The law of that place
would thus be the applicable law, which meant that that place would be where
the plaintiff sued, and where enforcement occurred. So complex multinational
intellectual property litigation appears in practice to have been quite rare.
National courts thus had little trouble with, and did not readily develop,
rules of private international law for intellectual property disputes. And they had
very little engagement with the rules of public international intellectual property
found in treaties, because these were not the source of the rules of decision in

4
International Intellectual Property Law and Policy
the cases before them.27 There was, therefore, very little dynamic between public
and private international intellectual property laws.
GLOBALIZATION AND CHANGES TO THE ROLE OF NATIONAL COURTS
The last fifteen to twenty years have witnessed some changes to the foregoing
description of the international intellectual property system. Some things have not
altered, however. The prevailing doctrinal premise is still one of territoriality,28
rights remain largely national in nature,29 and the principal intellectual property
agreements remain structured around the dual principles of national treatment
and substantive minima.30
But in that time our social and economic environment has become more
global in nature. Intellectual property products, like their creators and users, move
through international commerce and international communities with speed and
in quantities that we could not previously have imagined. This has prompted
demands for intellectual property laws that are more global in reach, and the
sometimes inconsistent demand for intellectual property laws that respond more
quickly to new problems and new technologies.31 In this climate, the principles
of territoriality and national autonomy over precise rules of domestic intellectual
property law have come under pressure.
As a result of these pressures, international intellectual property lawmaking
has undergone substantial change and is now effectively generated by a wide
range of different processes. First, there have been efforts to enable international
institutions to react more quickly to new social and technological developments.
In this category, one might include the structural reorganization of the World
Intellectual Property Organization (WIPO). WIPO has fonhed and made use
of standing committees to present proposals to the WIPO Assemblies for adop-
tion in the form of nonbinding recommendations rather than pursue the same
substantive goals through the mechanism of formal treaties adopted after a long
negotiation processd2 This device has been most prevalent in the trademark con-
text, with the 1999 nonbinding recommendation on the treatment of well-known
marks and the recent adoption of a recommendation on rules governing the
concept of "use" on the Internet being notable examples."
The adoption of the Uniform Domain Name Dispute Resolution Policy
(UDRPP4 by the Internet Corporation for Assigned Names and Numbers
(ICANN)35 in late 1999 is another example of speedy (and novel) international
intellectual property lawmaking. ICANN requires every registrar offering to regis-
ter domain names in the most commercially significant generic top-level domains
to include in its registration agreement a contractual provision whereby domain
name registrants submit to the application of the UDRP. As a result, a certain
class of disputes between domain name registrants and trademark holders (so-
called cybersquatting disputes) is resolved by quasi-arbitral panels appointed by
ICANN-authorized dispute settlement providers and according to substantive

Architecture of International Intellectual Property System
5
rules that were developed in an unconventional process of international intellec-
tual property lawmaking.36
Without unduly minimizing the ambiguities of that process,'7 W1PO in
essence acted at the request of a single member state (the United States) to
produce a report that, by virtue of delegation of de facto control of the domain
name registration process from that single government,'8 could be implemented
by ICANN as substantive law without the usual airings found in the intergov-
ernmental lawmaking process of which WIPO is a part.'9 And, as the Australian
government recognized in a recent submission to the TRIPs Council, the UDRP
has indeed become the international standard for resolution of cybersquatting
disputes.40
Fo be fair to WIPO, the organization did try to circulate and solicit com-
ments regarding the proposals through alternative channels. Yet, the process was
quite different from the classical intergovernmental model to which WIPO for-
merly adhered (and largely still adheres). Instead, the development of the UDRP
occurred outside the traditional intergovernmental process, thus reducing the di-
rect involvement of nation-states and moving at a much brisker pace than found
in the treaty revision process.41
To be sure, both of these developments are expressly intended to produce
only soft law. The recommendations that emanate from the WIPO standing com-
mittees and are later adopted by the WIPO Assembly are nonbinding; nations
may decide without penalty whether to introduce reforms to national law in
order to comply with the recommendations42 Likewise, the results in UDRP
proceedings can be overcome by contrary determinations in national courts, and
those courts are not obliged to defer (or even refer) in any way to the conclu-
sions of the UDRP panel.4' Indeed, orders of UDRP panelists may be stayed by-
nothing more than the losing party filing a complaint in the appropriate national
court.44
But in practice these new forms of lawmaking may produce harder law.
This solidification may happen in different ways. It can occur through traditional
public law mechanisms. Consider the recent—very preliminary—draft of an
agreement to govern the proposed Free Trade Area of the Americas.45 The
current draft of that agreement would require signatory states to ensure that
their trademark laws comply with the WIPO Joint Recommendation on Weil-
Known Marks.46 Alternatively, the practical structure of the soft law mechanism
might cause it to possess more enduring force than would first appear. The soft
law character of the UDRP, for example, is arguably belied by the minuscule
number of cases in which the losing party has had recourse to national courts.
This preeminence of the UDRP may in part be attributable to the advantages of
UDRP proceedings in comparison to national litigation.4
If soft law is so easily hardened, these new lawmaking processes deserve
equal care and attention, notwithstanding the advantages that new and faster
lawmaking processes offer.48 As the Argentinean delegation stressed in the 1999
WIPO Assembly meeting, circumspection is appropriate where there is "creation

6
International Intellectual Property Law and Policy
of de facto norms without the permanent transparency of the negotiation and
decision-making processes."49
A second change that has occurred as a result of the pressure to internation-
alize intellectual property law is that intellectual property policymaking has been
subsumed within the broader apparatus of trade relations. This has occurred uni-
laterally in the form of annual reviews by the United States Trade Representative
under the Special 301 provisions of the Trade Act50 and the (more recent) equiv-
alent procedure in the European Union under the Trade Barriers Regulation.51
And a parallel shift was effected multilaterally in 1994 by the inclusion of intel-
lectual property provisions (i.e., TRIPs) within the Agreement Establishing the
World Trade Organization.'2 The precise ways in which this overarching trade
context may transform international intellectual property law remain unclear,53
but that context surely has altered the character of international intellectual prop-
erty relations. Most directly, the incorporation of intellectual property agreements
within trade mechanisms might (if trade concerns become paramount) deprive
intellectual property policymaking of the rich palette of human values that his-
torically has influenced its formulation. Considering only the ability to exploit
comparative advantage in the ownership of intellectual property rights would ap-
pear to make international intellectual property policy less multidimensional. Of
course, the outcome of these changes may depend not only on whether the trade
context affects the values underlying nation-to-nation negotiating—"Let in my
bananas, we'll cut you some slack on CDs" becomes a more ready and explicit
form of discussion —but also on how the binding dispute settlement system of the
World Trade Organization (to which the TRIPs obligations are subjected) deals
with the trade/intellectual property interface.54
The incorporation of intellectual property within the trade arena has, how-
ever, already had an interesting institutional effect. Prior to the inclusion of
intellectual property within the apparatus of international trade, the primary in-
stitutional actor in international intellectual property policy was WIPO.55 The
decision to deploy trade mechanisms was in part a reflection of fifteen years of
little perceived progress at WIPO (at least as viewed by the developed world, and
by the United States in particular).56 But the sudden emergence of the WTO as
part of the international intellectual property lawmaking process seemed to en-
ergize WIPO, resulting in the conclusion of several new treaties in copyright,57
patent,58 and trademark law,59 as well as the reorganization mentioned above
that was designed to make WIPO fit for the twenty-first century. This institutional
competition may be helpful, as the richer debate that has ensued would suggest.60
Belatedly, as noted above, many of the public international obligations un-
dertaken by states are now backed by an effective dispute settlement system (that
of the WTO) among states to ensure compliance with the internationally agreed-
upon standards.61 Eight WTO dispute settlement panel reports addressing TRIPs
violations have been handed down thus far (three of which also gave rise to re-
ports by the Appellate Body). Although all, barring one, find some transgression
of the TRIPs Agreement, these proceedings probably involve the clearest cases

Architecture of International Intellectual Property System 7
of TRIPs noncompliance. Nor should we draw too much significance from the
outcomes of these proceedings alone.62 Indeed, the methodology of panels has
been quite strict in tying decisions to the literal language of the TRIPs Agree-
ment: Webster's Dictionary has become an essential research tool in WTO TRIPs
litigation.6"' Moreover, there is evidence that, at least in some respects, WTO
panels will not try to alter radically the mix of national autonomy and universal
standards embodied in the international intellectual property agreements.64 But
it is also clear that this variable will be a central (if sometimes unexpressed) con-
sideration underlying WTO panel determinations, just as it was in the drafting
and revision of the classical conventions.65 Importantly, however, any recalibra-
tion of that balance may now be effected not only by nation-state negotiators
but also (and perhaps more easily) by panelists in the WTO dispute settlement
body.
The broader process of harmonization, which some of the developments
discussed above exemplify, presents many challenges.66 To the extent that these
different lawmaking forces are effecting a convergence around common rules
of intellectual property, however, one might suggest that a more intrusive sub-
stantive international intellectual property law is growing through public law
mechanisms.6. Yet, rules of similarly de facto global reach may be occurring
in private litigation, and they may implicate similar concerns. I have already
referred to one such development, namely, the panel decisions issued under
the UDRP by ICANN-authorized dispute settlement providers.68 And any ef-
forts by national courts to adjudicate domain name disputes clearly have an
effect beyond national borders; domain name/trademark rules in the generic
top-level domains are truly nonnational.69 Or, stated less tendentiously, such de-
cisions by national courts may have substantial effects in a number of countries.
The only means by which this proposition could be altered radically might
be through relief mandating the deployment of measures that effect virtual
territorialization.70
There are many other (apparently more traditional) contexts in which na-
tional courts are beginning to tackle cases with broader international ramifications
and thus to contribute to the effective creation of international rules. This has
occurred most perceptibly and most readily in the copyright context. In the past
two years, several courts, with the encouragement of the U.S. Court of Appeals for
the Second Circuit, 1 have permitted plaintiffs to pursue actions alleging claims
under several disparate foreign copyright laws;72 courts are more consciously sep-
arating jurisdiction to adjudicate from questions of applicable law. There is also
growing acceptance nationally of a doctrinal device, first used by the Second
Circuit, whereby relief will be granted in respect of both domestic and overseas
acts of infringement, where a predicate act of infringement occurred within the
United States and enables further reproduction abroad.7' In both these ways,
courts have provided multinational relief and, in the latter case, have effectively
applied a single rule to international conduct.74 (Even copyright courts that for-
swear the extraterritorial application of the copyright statute may to some extent

8
International Intellectual Property Law and Policy
be regulating globally when they apply choice of law rules that easily localize any
Internet conduct in the United States.)75
These trends are less evident in patent and trademark cases, where the classi-
cal role of national courts has remained more constant. Yet, even here, some U.S.
courts have been willing to become embroiled in multinational disputes and apply
what in practice is a rule of much more than national scope.'6 Whereas copy-
right law has formally adhered to a rule proscribing extraterritorial application/'
U.S. courts have been less restrained in applying the Lanham Act to conduct
with a much more tenuous U.S. connection,78 other than some of the parties
involved.79 And the enactment of the Anti-Cybersquatting Consumer Protection
Act in 1999 may prompt even more intrusive U.S. judicial regulation of inter-
national domain name space, particularly (though not exclusively) through the
capacious in rem cause of action granted to. trademark owners who cannot obtain
jurisdiction in personam over a domain name registrant.80 As a practical matter,
these new private law developments occurring in national courts increasingly
may come to comprise and generate the content of international intellectual
property law.
Moreover, courts have recently expressed some interest in the dynamic be-
tween public international intellectual property standards and the role of national
courts. One court has found that a plaintiff could, through the vehicle of sec-
tion 44(b) of the Lanham Act, advance a claim based on violation of standards
found in the Pans Convention rather than being limited to the causes of ac-
tion expressly delineated in the Lanham Act.81 The development and content of
public international intellectual property law has also informed judicial analysis
of forum non conveniens issues in several international copyright and trademark
cases.82
Scholars have also suggested that the choice of law methodologies that U.S.
courts have developed in copyright cases, acting free of the constraints of treaty
provisions regarding choice of law, might include reference to substantive pub-
lic international copyright law. I refer here not only to my own proposal that
well-established international principles contribute to the identification of a sub-
stantive governing rule in international copyright cases, but also to suggestions
previously made by Jane Ginsburg that provisions in international copyright
treaties might serve as a baseline standard to ensure that the foreign law a national
court applies complies with international minimum standards. In this fashion.
Professor Ginsburg would ensure that the country whose law was applied does
not act as a haven for copyright infringers.
In each of these contexts, one finds an echo of the tension underlying the
public law debate in the 1880s: the contest remains one that pits notions of univer-
sality against those of national autonomy. This is seen in the public international
context proper, as might be expected, but also in the development of rules that
encourage national courts in private litigation to develop multinational solutions
and to engage with public law standards. National courts, it may properly be said,
now contribute to the development of international intellectual properly law.

Architecture of International Intellectual Property System 9
SITUATING THE HAGUE AND DREYFUSS-GINSBURG PROPOSALS
Where do the Draft Hague Convention and the Dreyfuss-Ginsburg proposal
fit within this scheme? Strictly speaking, such treaties might best be described
as public private international law," to borrow Steve Burbank's nomenclature.84
These treaties are not directly about determining appropriate rules of substantive
international intellectual property law, but rather concern the manner in which
we determine the appropriate rules. At their most basic, these proposals address
the practical problems of litigating national rights in an increasingly nonnational
world. More systemically, they would establish the basic conditions under which
national courts would contribute to and develop a form of international intellec-
tual property law. Thus, these treaties would install the elemental architecture
of this (nationally constructed) part of the international intellectual property sys-
tem, with the precise design to be decided on an ongoing basis by national courts
(checked by legislatures) operating within that structure.
The development of substantive international rules, and the mediation of
the competing values of national autonomy and universal rules, through national
court jurisprudence, may possess advantages over public law processes (whether
classical or new). When compared with the traditional negotiation of treaties,
national court development of "international law" is more responsive to social
conditions and hence more dynamic. And it is more readily subject to refinement
by a range of national political institutions. Moreover, the articulation of cross-
border relief under a single rule by a national court, or (to use the language of
my own earlier proposal) the development of a substantive rule of national law
applicable to international cases, would not result in the premature entrenchment
of such a rule as a higher norm of international law in the way that WTO dispute
settlement body rulings in practice might do. At bottom, national court decisions
are local law that remains subject to national legislative reversal or modification.
And, while courts wmild be expected to refer to other national court decisions
(both domestic and foreign), they would also be formally free to depart from those
decisions, retaining the value of national experimentation that is crucial to the
classical model of international intellectual property law.85
Moreover, this means of developing international intellectual property law is
less subject to the political demands that historically have burdened the public in-
ternational process and that continue to limit its efficacy. To the extent that agree-
ment on substantive harmonized rules (especially forward-looking rules) is fast
becoming impossible because of the number of interested parties with disparate
agendas in the intellectual property lawmaking process, this alternative form of
lawmaking offers a greater prospect of progress. It is uncertain whether the systems
of active national court involvement facilitated by procedural mechanisms would
produce rules more favorable to supporters or opponents of expansive intellectual
property protection. But one value of these systems as lawmaking instruments may
in fact lie in the common uncertainty about the rules that they might produce.
Negotiating for certainty, whether in substantive rules of intellectual property law

10
International Intellectual Property Law and Policy
or in the allocation of prescriptive authority between international and national
law, has proven a difficult endeavor of late.
Critics of this purported procedural neutrality might argue that such systems
embed quite partisan values, although broader systemic values than those under-
lying intellectual property policy alone. The Hague Convention, for example,
would establish procedural rules that clearly contemplate the possibility of some
degree of cross-border relief, of decisions that effect change beyond national
borders, or of the universalization of certain values and rules.
This critique is descriptively accurate, but unpersuasive as a rebuttal to the
development of the systems contemplated by the draft Hague and Dreyfuss-
Ginsburg proposals. Consider the alternative —and this is, I would suggest, a
crucial perspective —of cross-border relief being developed on a purely ad hoc
basis, in other words of a greater number of decisions by national courts that
(without reasoned contemplation) affect conduct beyond their borders. Let us not
be naive about the choice: there is no idealized "national" world of hermetically
sealed borders within which national courts decide disputes without spillover
effects. The choice is between two scenarios, both of which involve a departure
from a theorized territorial model: (1) courts providing relief that extends their
law beyond their borders, but doing so without considering explicitly the external
effects of their application of local law or why to offer cross-border relief; and
(2) the development of a system in which courts offer conscious explanations of
why cross-border relief is appropriate and why the internal effects of one state
outweigh the external effects on another. It is, in effect, the difference between a
systematic and transparent development of these rules of international intellectual
property law, bounded by outside parameters established by nation states, and a
spate of competing decisions with universal effects but unaccompanied by any
effort at justifying or explaining the same.
Moreover, I am less troubled than others by the notion that we are moving in
some respects toward a different balance of universal and national values — though
the precise balance is a point of genuine debate. Proper respect for national values,
especially as long as national political structures remain the primary voice for the
expression of political viewpoints, is important. But the balance between national
and nonnational sources of affinity is shifting; legal institutions that reflect the
impulses of the citizenry are more likely to endure than those that resist or counter
those impulses.86
Having urged a realist perspective on those who find these proposals un-
settlingly close to the imposition of global values, let me also suggest a reality
check for those who seek to advance enlightened systems of so-called public
private international law. It may be some time before judges in national courts
can function in ways that routinely defer to the application of foreign law. But
there are signs of progress in judicial awareness of the experience and decisions
of other national courts also, as Anne-Marie Slaughter87 has shown in her work
on judicial globalization and as Mark Tushnet and Vicki Jackson have indicated
in their analyses of comparative constitutional law.88

Architecture of International Intellectual Property System 11
CONCLUSION
In conclusion, national court decisions may of themselves construct (or at
least contribute to) international intellectual property law through the sheer fact of
their geographical reach. And this contribution may occur whether effectuated
through the ad hoc application and extension of existing doctrinal devices by
national courts or through the development and application of a treaty under
which such developments are consciously encouraged or appropriately limited.89
Fo some extent, cross-border spillover has always existed. Classic nineteenth-
century tort actions where conduct in one state caused effects in another state
implicated very similar questions: negligence in one state only came home to roost
in another state. Courts sought to localize such disputes, which in fact happened
in two states, as legally occurring in one state. This is what makes conflicts hard.
One might argue that the increased range of such cross-border cases in modern
economies can be viewed as merely a difference in degree from that nineteenth-
century model. But at some point a difference in degree becomes a difference in
kind. To be sure, there are costs to making changes in legal rules.90 But at what
point do we continue to build our analytical models around fact patterns that
represent the exception rather than the rule?
Of course, this question begs a further inquiry: is the multinational or inter-
national or cross-border dispute the norm in intellectual property cases? Despite
the increasingly large body of scholarship working off this premise, it is not deci-
sively clear that that stage has been reached. An empirical study of the frequency
of the types of private international law problems with which this chapter has
grappled would, I think, be a valuable contribution to the debate.
In any event, it is more important to start thinking and talking about the likely
challenges of tomorrow than to be confined by present realities. The problems
to which the Hague and Dreyfuss-Ginsburg proposals are addressed are, I would
suggest, likely to multiply because of broader reasons of societal development.
Recent international intellectual property lawmaking, and certainly the ponder-
ous negotiation of the draff Hague Convention, suggests that an informed and
inclusive dialogue regarding such proposals will be a long conversation. It is thus
an opportune time to begin to discuss the complex issues that they raise.
NOTES
1. See Hague Conference on Private International Law, Summary of the Outcome
ofDiscussions in Commission II ofthe First Part of the Diplomatic Conference, 6-20 June,
2001, reprinted in 77 Chi.-Kent L, Rev. 1015 (2002). The June 2001 version ofthe Draft
Hague Convention discussed here is referred to where necessary as the "June 2001" draft
Hague Convention in order to differentiate this text from the draft proposal published in
October 1999. See Preliminary Draft Convention on Jurisdiction and Foreign Judgments
in Civil and Commercial Matters (adopted October 30, 1999).

12
International Intellectual Property Law and Policy
2. Rochelle C. Dreyfuss & Jane C. Ginsburg, Draft Convention on Jurisdiction
and Recognition of Judgments in Intellectual Property Matters, 77 Chi.-Kent L. Rev. 1065
(2002). The Fall 2001 version of the Dreyfuss-Ginsburg proposal discussed here is referred
to where necessary as the "Chicago-Kent Draft" of the proposal.
3. Pans Convention for the Protection of Industrial Property, Mar. 20, 1883, last
revised at Stockholm July 14, 1967, art. 28, 21 U.S.T. 1583, 828 U.N.T.S. 305 [hereinafter
Paris Convention],
4. See Berne Convention for the Protection of Literary and Artistic Works, last
revised at Paris July 24, 1971, 828 U.N.T.S. 221 [hereinafter Berne Convention], See
generally Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic
Works: 1886-1986 (1987). The first version of the Berne Convention was concluded
in 1886.
5. The Paris Convention also contained provisions designed to facilitate the acqui-
sition of national registered rights on a multinational basis. See Paris Convention, supra
note 3, art. 4.
6. See id. art. 2; Berne Convention, supra note 4, art. 5.
7. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.
15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C,
Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 81 (1994) [hereinafter the
TRIPs Agreement or TRIPs],
8. See Graeme B. Dinwoodie, A New Copyright Order: Why National Courts
Should Create Global Norms, 149 U. Pa. L. Rev. 469, 491 (2000) [hereinafter Dinwoodie,
A New Copyright Order] (discussing Berne Convention and describing initial standards
as "hardly exacting"); Graeme B. Dinwoodie, William O. Hennessey & Shira Perlmutter,
International Intellectual Property Law and Policy 140 (2001) (describing trademark-
related obligations in the Paris Convention as "relatively low-level"); Joanna Schmidt-
Szalewski, The International Protection of Trademarks After the TRIPs Agreement, 9 Duke
J. Comp. & Int'l L. 189, 199-201 (1998) (discussing the "few trademark rules" provided
by the Paris Convention). \
9. See Dinwoodie, A New Copyright Order, supra note 8, at 493 (noting that the tra-
ditional Berne Convention revisions "constituted the received wisdom of the participating
countries rather than prospective solutions to new problems").
10. See Berne Convention, supra note 4, art. 33; Paris Convention, supra note 3, art.
28.
11. See J.H. Reichman, Enforcing the Enforcement Procedures of the TRIPs Agree-
ment, 37 Va. J. Int'l L. 335, 339 n.17 (1997).
12. See Jane C. Ginsburg, The Role of National Copyright in an Era of International
Copyright Norms, in The Role of National Legislation in Copyright Law 211, 213 (Adolf
Deitz ed., 2000) [hereinafter Ginsburg, The Role of National Copyright].
13. See Crocker Nat'I Bank v. Canadian Imperial Bank of Commerce, 223 U.S.P.Q.
(BNA) 909, 918-921 (T.T.A.B. 1984) (en banc) (discussing negotiation of Article 6 of
the Paris Convention); Appellate Body Report, United States—Section 211 Omnibus
Appropriations Act of 1998, WT/DS176/AB/R (Jan. 2, 2002) [hereinafter United States-
Section 211] (noting the legislative discretion retained by national governments under the
Paris Convention).
14. See Graeme B. Dinwoodie, The Development and Incorporation of International
Norms in the Formation of Copyright Law, 62 Ohio St. L.J. 733, 739 (2001) [hereinafter

Architecture of International Intellectual Property System 13
Dinwoodie, Development and Incorporation of International Norms] (discussing copyright-
law).
15. See Berne Convention Implementation Act of 1988, Pub. L. No. 100-568,
§ 2, 102 Stat. 2853 (Berne Convention not self-executing); Mannington Mills, Inc. v.
Congoleum Corp., 595 F.2d 1287, 1299 (3d Cir. 1979) (treating the Paris Convention as
not self-executing); cf. Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 640-644
(2d Cir. 1956) (suggesting that the Paris Convention is self-executing, but finding no
enlargement of substantive rights under U.S. trademark law). But see Laboratorios Roldan
v. Tex Int'l, Inc., 902 F. Supp. 1555, 1568 (S.D. Fla. 1995) (recognizing claim under
article \0bis of the Paris Convention).
16. See Dinwoodie et ah, supra note 8, at 1.
17. See, e.g., Vanity Fair Mills, 234 F.2d at 641 (U.S.-Canadian trademark infringe-
ment); Sheldon v. Metro-Goldwyn Pictures Corp., 106 F.2d 45, 52 (2d Cir. 1939) (awarding
plaintiff profits from both U.S. and Canadian exhibition of infringing motion picture where
a copy of the motion picture had been made in the United States and then shipped to
Canada for exhibition), ajfd, 309 U.S. 390 (1940).
18. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 90-
91 (2d Cir. 1998) (noting lack of guidance regarding choice of law issues in the Berne
Convention); Jane C. Ginsburg, Private International Law Aspects of the Protection of
Works and Objects of Related Rights Transmitted Through Digital Networks, WIPO
Doc. GCPIC/2, at 22, 34 (Nov. 30, 1998) (discussing the extent to which the Berne
Convention determines the law applicable to issues of copyright ownership and in-
fringement), available at http://www.wipo.int/eng/meetings/1998/gcpic/pdf/gcpic_2.pdf;
Graeme B. Dinwoodie, Private International Aspects of the Protection of Trade-
marks, WIPO Doc. No. WIPO/PIL/01/4, 14 (Jan. 19, 2001) (discussing the min-
imal influence of international trademark treaties on choice of law), available at
http://www.wipo.int/pil-forum/en/documents/doc/piL01_4.doc; cf. Fritz Blumer, Patent
Law and International Private Law on Both Sides of the Atlantic, WIPO Doc. No.
WIPO/PIL/01/3, If 2.1 (Jan. 17, 2001) (discussing how far the territoriality principle affects
matters of private international law in patent cases), available at http://www.wipo.int/pil-
forum/en/documents/doc/piLO l_3.doc.
19. See Eugene F. Scoles, Peter Flay, Patrick J. Borchers & Symeon C. Symeonides,
Conflict of Laws 2 (3d ed. 2000).
20. Compare Allstate Ins. Co. v. Hague, 449 U.S. 302, 308 (1981) (choice of law),
with Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113 (1987) (personal
jurisdiction).
21. See U.S. Const, art. IV, § 1.
22. See Hilton v. Guyot, 159 U.S. 1 13,163-164 (1895) (resting recognition of foreign
judgments on comity).
23. See supra note 17 (listing illustrative cases); see also Steele v. Bulova Watch Co.,
344 U.S. 280, 283-284 (1952) (extraterritorial application of Lanham Act to activities in
Mexico with effects on U.S. commerce); Robert Stigwood Group Ltd. v. O'Reilly, 530
F.2d 1096, 1101 (2d Cir. 1976) (declining to apply U.S. copyright law extraterritorially to
performances in Canada).
24. See, e.g., Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir. 1956)
(trademark); ITS1 T.V. Prods., Inc. v. Cal. Auth. of Racing Fairs Agric., 785 F. Supp. 854,
866 (E.D. Cal., 1992) (copyright), rev'd on other grounds, 3 F.3d 1289 (9th Cir. 1993);

14
International Intellectual Property Law and Policy
see also Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518; 537 (1972) (suggesting
that a U.S. patent holder seeking protection in foreign markets should avail itself of its
foreign patents).
25. In practice, the cause and effect of this relationship may not have been so clear.
That is, one could interpret judicial practice as reflecting the sentiment that if the court
found jurisdiction to adjudicate, it applied its own law.
26. This remains the norm. See Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d
365, 371-372 (2d Cir. 1997) (refusing to grant antisuit injunction against pursuit of
French copyright infringement action notwithstanding that the defendant's program had
been held to be noninfringing in parallel U.S. proceedings between the same parties
involving the same works). Compare Euromarket Designs, Inc. v. Crate & Barrel Ltd., 96
F. Supp.2d 824 (N.D. 111. 2000) (discussing claim for infringement of U.S. trademark
rights in mark crate & barrel), with Euromarket Designs, Inc. v. Peters, [2000] E.T.M.R.
1025 (Ch. 2000) (Eng.) (claim for infringement of UK trademark rights in mark crate
& barrel). Compare Improver Corp. <5 Sicommerce v. Remington Prods., 24 LLC. 838
(Dusseldorf Ct. App, 1991) (F.R.G.) (discussing action in Germany for infringement of
patent on Epilady shaver), with Improver Corp. v. Remington Consumer Prods. Ltd., 1990
F.S.R. 181 (H. Ct, 1989) (UK) (action in the United Kingdom for infringement of patent
on same invention).
27. See supra text accompanying notes 14-16 (discussing implementation in U.S.
law).
28. See Computer Assocs., 126 F.3d at 365 (copyright); Rotec Indus., Inc. v. Mitsubishi
Corp., 215 F.3d 1246, 1251 (Fed. Cir, 2000) (requiring that in order to violate the patent
holder's exclusive right to offer its patented invention for sale, the allegedly infringing offer
must occur within the United States); Johns Hopkins Univ. v. Cellpro, Inc., 152 F.3d 1342
(Fed. Cir. 1998) (patent); Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 736, 744-748
(2d Cir. 1994) (taking territorial nature of trademark rights into account when fashioning
relief); Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1089 (9th
Cir. 1994) (copyright); Person's Co. Ltd. v. Christman, 900 F.2d 1565, 1569 n.18 (Fed.
Cir. 1990) (declining to revise territorial understanding to reflect the "world economy");
Playboy Enters, v. Chuckleherry Publ'g, Inc., 939 F. Supp. 1032, 1036-1037 (S.D.N.Y.
1996) (taking territorial nature of trademark rights into account when fashioning relief).
29. Even those exceptional modifications of national rights that exist, such as unitary-
trademark rights over the entire region of several nations within a free trade agreement
(most notably, the European Union, see Council Regulation (EC) No. 40/94 of 20 De-
cember 1993 on The Community Trade Mark, 1994 O.J. (L 11) 1), could plausibly still be
conceptualized as territorial in nature, albeit with a territory now defined by the regional
"superstate" rather than individual nation-states.
30. See TRIPs Agreement, supra note 7, art. 2(1) (requiring compliance with stated
provisions of the Paris Convention); id. art. 3 (national treatment); id. art. 9(1) (requiring
compliance with stated provisions of the Berne Convention); see also United States-
Section 211, supra note 13.
31. See Dinwoodie, A New Copyright Order, supra note 8, at 477 (discussing these
pressures in copyright law).
32. See Report of the Director General of WIPO, WIPO Doc. No. WO/GA/23/1
111 -12 (Sept. 4, 1998) (discussing the proposal to establish standing committees), avail-
able at http://www.wipo.int/eng/document/govbody/wo-gb_ga23_l.htm; Joint Resolution
Concerning Provisions on the Protection of Well-Known Marks, WIPO Doc. No. A/34/13,

Architecture of International Intellectual Property System 15
9 (Aug. 1999) (discussing the nonbinding nature of the recommendation), available at
http://www.wipo.int/eng/clocument/govbody/wo-gb-ab/pdf/a34_l3.pdf [hereinafter Weil-
Known Marks Joint Resolution],
33. See Joint Recommendation Concerning Provisions on the Protection of Well-
Known Marks, W1PO Doc. 833(E) (Sept. 1999), available at http://www.wipo.int/about-
ip/en/development_iplaw/pdf/pub833.pdf; Joint Recommendation Concerning the Pro-
tection of Marks, and Other Industrial Property Rights in Signs, on the Inter-
net, WIPO Doc. 845(E) (Oct. 2001), available at http://www.wipo.int/about-ip/en/
development_iplaw/pdf/pub845.pdf; see also Joint Recommendation Concerning Trade-
mark Licenses, WIPO Doc. 835(E) (Oct. 2000), available at http://www.wipo.int/about-
ip/en/development-iplaw/pdf/pub835.pdf.
34. See Uniform Domain Name Dispute Resolution Policy (Oct. 24, 1999), avail-
able at http://www. icann.org/udrp/udrp-policy-24oct99,htm [hereinafter UDRP]; see also
Rules for Uniform Domain Name Dispute Resolution Policy (Oct. 24, 1999) [hereinafter
UDRP Rules], available at http://www.icann.org/dndr/udrp/uniform-ruIes.htm.
35. ICANN is a not-for-profit corporation that was created by the U.S. government
to operate the domain name system, among other things, in accordance with parameters
set by the Commerce Department. Management of Internet Names and Addresses, 63
Fed. Reg. 31,741 (June 10, 1998).
36. See generally Laurence R. Heifer & Graeme B. Dinwoodie, Designing Non-
National Systems: The Case of the Uniform Domain Name Dispute Resolution Policy, 43
Wm. & Mary L. Rev. 141 (2001) (analyzing the development of the UDRP at length);
Graeme B. Dinwoodie, (National) Trademark Laws and the (Non-National) Domain
Name System, 21 U. Pa. J. Int'l & Econ. L. 495 (2000) (explaining the clashes between
trademark law and the domain name system that gave rise to the nonnational solution).
37. For a much fuller account, see Heifer & Dinwoodie, supra note 36.
38. See Andrew Christie, The ICANN Domain-Name Dispute Resolution System as
a Model for Resolving Other Intellectual Property Disputes on the Internet, 5 J. World Intell.
Prop. 105, 107-110(2002).
39. See Heifer & Dinwoodie, supra note 36, at 167-168.
40. See Council for Trade-Related Aspects of Intellectual Prop. Rights, WTO,
Electronic Commerce Work Programme: Submission from Australia, IP/C/W/233, ^[ 44
(Dec. 7, 2000) (suggesting that the L1DRP has "arguably become a de facto international
standard" for the resolution of cybersquatting disputes), available at http://docsonline.
wto.org/DDFDocuments/t/IP/C/W233.doc.
41. See Heifer & Dinwoodie, supra note 36, at 168.
42. See Well-Known Marks Joint Resolution, supra note 32, at 3 ("[T]his creates no
legal obligation for any country, but following such a recommendation would produce
practical benefits").
43. See UDRP, supra note 34, f 4(k) (providing that parties to UDRP disputes
are not precluded "from submitting the dispute to a court of competent jurisdiction for
independent resolution before such mandatory administrative proceeding is commenced
or after such proceeding is concluded"); see also Sallen v. Corninthians Licenciamentos
LTDA, 273 F.3d 14 (1st Cir. 2001) (noting that UDRP panel decisions are not entitled
to any deference in subsequent national court proceedings) (citing cases); cf. Holger P.
Hestermeyer, The Invalidity of ICANN's UDRP Under National Law, 3 Minn. Intell.
Prop, Rev. 1 (2002) (suggesting that certain UDRP panel decisions may be vulnerable to
attack under French and German law because of the failure of the contractual provision

16
International Intellectual Property Law and Policy
submitting disputes to the UDRP to conform with national consumer protection laws
regulating such contractual provisions).
44. See UDRP, supra note 34. 4(k) (providing that the filing of a complaint with a
court of mutual jurisdiction by a losing respondent within ten business days of the panel's
decision will automatically stay the panel's order transferring or canceling the contested
domain name). Courts of mutual jurisdiction are determined when the trademark owner
files a UDRP complaint. See, e.g., UDRP Rules, supra note 34, Rule 3(b)(xiii) (requiring
that complainant must agree to submit to jurisdiction of a court in at least one specified
"mutual jurisdiction" with respect to "challenges to a decision .,. canceling or transferring
the domain name"). The trademark owner must select the courts located either where
the registrar that issued the domain name registration is located or at the location of the
domain-name holder as shown in the registrar's Whois data. See id. Rule 1.
45. See Draft Agreement on the Free Trade Area of the Americas, FTAA.TNC/w/
133/Rev.l (July 3, 2001), available at http://www.ffaa-alca.org/alca-e.asp.
46. See id. t 8.3. WIPO has also asked member states to consider whether the
different nonbinding trademark recommendations adopted from 1999-2001 should be
incorporated in treaties harmonizing trademark law. See Proposals for Further Harmo-
nization of Formalities and Procedures in the Field of Marks, WIPO Doc. No. SCT/8/2,
1 (Apr. 26, 2002) (noting that the WIPO program for 2002-2003 includes considera-
tion by the Standing Committee on Trademarks of the incorporation of the three non-
bonding recommendations adopted from 1999-2001 in the framework of harmonization
of trademark law), available at http://wipo.int/sct/en/documents/session_8/pdf/sct8_2.pdf;
Suggestions for the Further Development of International Trademark Law, WIPO Doc. No.
SCT/8/3, ^1 1 (Apr. 26, 2002), available at http://wipo.int/sct/en/documents/session_8/pdf/
sct8_3.pdf.
47. Empirical evidence of challenges in national courts is hard to gather because
developing precise data would require coordination among the different registrars to as-
certain the number of panel orders that have not been implemented because of the
receipt of notice of a court action. One (extremely useful) database of national court
challenges to UDRP rulings lists only fifty-one cases (including a mere three non-U.S.
cases) out of the more than 4,800 UDRP panel decisions to date. See The UDRP-Court
Challenge Database, http://www.udrplaw.net/UDRPappeals.htm (last modified May 1,
2002). This small number is consistent with anecdotal evidence, although some deci-
sions (of U.S. courts in particular) are beginning to be handed down. See Sallen v.
Corinthians Licenciamentos, 273 F,3d 14 (1st Cir. 2001) (reversing the dismissal of an
action under U.S. law by a U.S. domain name registrant against a Brazilian trademark
owner seeking to override a UDRP payiel decision in favor of the trademark owner);
Barcelona.com, Inc. v. Excelentisimo AyuntamientoDe Barcelona, Civ. Action No. 00-1412-
A (E.D. Va. Feb 22, 2002), available at http://www.udrplaw.net/Barcelona.pdf (adjudicat-
ing a dispute between a Spanish trademark owner and the domain name registrant from
whom a UDRP panel had previously ordered transfer of the domain name registration in
question).
48. See Heifer & Dinwoodie, supra note 36, at 245-248 (discussing pace of lawmak-
ing through interpretation of the UDRP).
49. General Report of the Assemblies of the Member States of WIPO, 3ith Annual
Meeting, WIPO Doc. A/34/16, 178 (Sept. 29, 1999), available at http://www.wipo.
int/documents/en/document/govbody/wo-gb_ab/pdf/a34_l 6.pdf.

Architecture of International Intellectual Property System 17
50. See, e.g., Office of The United States Trade Representative, 2002 Special 301 Re-
port (2002), available at http://www.ustr.gov/reports/2002/special301-report.pdf; see gen-
erally Kim Newby, The Effectiveness of Special 301 in Creating Long Term Copyright
Protection for U.S. Companies Overseas, 21 Syracuse J. Infl L. & Com. 29 (1995).
51. See Council Regulation (EC) No. 3286/94 of 22 Dec. 1994 Laying Down Com-
munity Procedures in the Field of the Common Commercial Policy in Order to Ensure
the Exercise of the Community's Rights Under International Trade Rules, in Particu-
lar Those Established Under the Auspices of the World Trade Organization, 1994 O,].
(L 349) 71, as amended by Council Regulation (EC) No. 356/95 of February 20, 1995,
1995 OJ. (L 41) 3; see generally David Rose, The E.U. Trade Barrier Regulation: An
Effective Instrument for Promoting Global Harmonisation of Intellectual Property Rights?,
21 Eur, Intell. Prop. Rev. 313 (1999).
52. The conclusion of TRIPs did not prevent the United States from publishing
annual Special 301 reviews of foreign intellectual property protection. Indeed, the Uruguay
Round Agreements Act, which implemented the TRIPs Agreement in U.S. law, expressly
contemplated that those reviews would continue.
53. See Neil W. Netanel, The Next Round: The Impact of the WIPO Copyright Treaty
on TRIPS Dispute Settlement, 37 Va. J. Int'l L. 441, 451-452 (1997); Dinwoodie, A New
Copyright Order, supra note 8, at 501-518; David Nimmer, The End of Copyright, 48
Vand. L. Rev. 1385 (1995).
54. See generally Rochelle Cooper Dreyfuss & Andreas F. Lowenfeld, Two Achieve-
ments of the Uruguay Round: Putting TRIPs and Dispute Settlement Together, 37 Va.
). Int'l L. 275 (1997); see also Dinwoodie, Development and Incorporation of Interna-
tional Norms, supra note 14, at 766-769 (discussing the influence of the trade context
on the first report issued by a WTO dispute settlement panel regarding a copyright law
question).
55. See Dinwoodie et ah, supra note 8, at 44.
56. See Susan K. Sell, Intellectual Propert)' Protection and Antitrust in the Developing
World: Crisis, Coercion and Choice, 49 Int. Org. 315, 321 (1995); Peter Drahos, Global
Property Rights in Information: The Story of TRIPs at the GATT, 13 Prometheus 6, 9
(1995).
57. See WIPO Copyright Treaty, Dec. 20, 1996, 36 I.L.M. 65; WIPO Performances
and Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76.
58. See Patent Law Treaty, June 2, 2000 39 I.L.M. 1047.
59. See Trademark Law Treaty, Oct. 27 1994, available at http://www.wipo.int/
treaties/en/ip/tlt/trtdocs-wo027.html,
60. The amount and depth of scholarly writing and speaking on the topic of interna-
tional intellectual property law has increased exponentially during the past few years, and
policymakers from these different institutions have made themselves a ready part of that
dialogue.
61. See Understanding on Rules and Procedures Governing the Settlement of Dis-
putes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization,
Annex 2, Legal Instruments —Results of the Uruguay Round, 33 I.L.M. 112 (1994); United
States—Section 211, supra note 13 (reversing Panel Report that offered a narrow interpre-
tation of the scope of TRIPs).
62. See Dinwoodie, Development and Incorporation of International Norms, supra
note 14, at 765-766 (stressing, in the context of the United States—Section 110(5) report,

18
International Intellectual Property Law and Policy
the importance of differentiating the outcome and the reasoning of the panel); Graeme
W. Austin, Valuing "Domestic Self-Detennination" in International Intellectual Property
Jurisprudence, 77 Chi.-Kent L. Rev. 1155 (2002).
63. See Dinwoodie, Development and Incorporation of International Norms,
supra note 14, at 775 (discussing United States—Section 110(5) panel report); J.H.
Reichman, Securing Compliance with the TRIPs Agreement After U.S. v. India, 1 J.
Int'l Econ. L. 585, 594-597 (1998) [hereinafter Reichman, Securing Compliance with
the TRIPs Agreement] (discussing India —Pharmaceutical Patents appellate body re-
port); see also United States—Section 211, supra note 13, ^ 157, 172, 187, 215,
219 (citing dictionary definitions of "as is," "derogate," "owner," "available," and
"substantiate").
64. See Dinwoodie, Development and Incorporation of International Norms, supra
note 14, at 764-765 (discussing United States—Section 110(5) panel report); Reichman,
Securing Compliance with the TRIPs Agreement, supra note 63, at 594-597 (discussing
India—Pharmaceutical Patents appellate body report).
65. See Dinwoodie, Development and Incorporation of International Norms, supra
note 14, at 764-766.
66. See Graeme B. Dinwoodie, The Integration of International and Domestic Intel-
lectual Property Lawmaking, 23 Colom.-VLA f.L. & Arts 307, 310 (2000) (discussing EU
harmonization of intellectual property laws).
67. See Ginsburg, The Role of National Copyright, supra note 12.
68. See supra text accompanying note 36.
69. See, e.g., Sallen v. Corinthians Licenciamentos LTDA, 273 F.3d 14 (1st Cir.
2001) (action by U.S. domain name registrant to recover registration from Brazilian
trademark owner without equivalent U.S. trademark registration); Heathmount A.E. Corp.
v. Technodome.com, 60 U.S.P.Q. 2d (BNA) 2018 (E.D. Va. 2000) (applying U.S. law to
dispute between Canadian parties because domain name registered with registrar located
in the United States).
70. See Geography and the Net: Putting It in Its Place, Econorqist, Aug. 11, 2001, at
18-20.
71. See Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481,
484 (2d Cir. 1998) (reversing district court's dismissal of claims under foreign copyright
laws on forum non coveniens grounds).
72. See, e.g., Carell v. Shubert Org., Inc., 104 E. Supp. 2d 236, 257-259 (S.D.N.Y.
2000) (permitting claims based on foreign copyright laws to proceed notwithstanding the
plaintiffs failure to specify in her complaint the particular countries under whose laws
the claims were made); Armstrong v. Virgin Records, Ltd., 91 F. Supp. 2d 628, 637-638
(S.D.N.Y. 2000) (entertaining claims based on unspecified foreign copyright laws on
the basis of diversity jurisdiction and pendent jurisdiction); Frink Am., Inc. v. Champion
Road Mach., Ltd., 961 F. Supp. 398, 404-405 (N.D.N.Y. 1997) (declining to dismiss
claim under Canadian copyright law). But see 1TSI T.V. Prods, Inc. v. Cat. Auth. of
Racing Fairs, 785 F. Supp. 854 (E.D. Cal, 1992) (refusing motion to amend complaint
to assert claim under Mexican copyright law), rev'd on other grounds, 3 F.3d 1289 (9th
Cir. 1993).
73. See L.A. News Serv. v. Reuters T.V. Int'l, Ltd., 149 F.3d 987 (9th Cir. 1998), The
device had long been accepted by the Second Circuit. See Sheldon v. Metro-Goldwyn
Pictures Corp., 106 F.2d 45, 52 (2d Cir. 1939), affd, 309 U.S. 390 (1940), But the Ninth

Architecture of International Intellectual Property System 19
Circuit had previously expressed some doubt regarding the rule. See Subafilms, Ltd. v.
MGM-Pathe Comms. Co., 24 F.3d 1088, 1094 (9th Cir. 1994).
74. Although courts applying this theory have applied a single law to the multina-
tional event, it is not inevitable that courts seeking to provide relief for multinational
infringement in a single proceeding must apply a single law. Courts could assume juris-
diction over all the related claims but apply different national laws to the different heads of
conduct occurring in different jurisdictions, determining liability on a country-by-country
basis. See Austin, supra note 62, at 130-131. Indeed, the new willingness of courts to
assume jurisdiction over claims of infringement of foreign copyright law makes this a
more plausible alternative. See supra text accompanying notes 69-73. For reasons I have
explained at length elsewhere, see Dinwoodie, A New Copyright Order, supra note 8, at
542-579,1 favor the application of a single substantive rule (but not necessarily one found
in the domestic law of a single nation-state, let alone one determined using the vagaries of
the predicate act or root copy theory) to copyright disputes that are inherently international.
Moreover, in the context of online posting of allegedly infringing material, this possibility
of applying different laws on the question of liability is very difficult in practical terms.
And. although one could award damages in respect only of countries where posting would
amount to infringement, injunctive relief is more difficult to fashion absent a willingness
to issue orders regulating the nature of online use or imposing technologically grounded
obligations. See infra note 76 (discussing Yahoo! litigation).
75. See Dinwoodie, A New Copyright Order, supra note 8, at 537 (discussing the ease
with which Internet copyright-infringing conduct can be localized in the United States).
76. Some courts have, however, sought to be careful in fashioning relief in ways
that respect the foreign interests in the dispute before them. See, e.g., Playboy Enters.,
Inc. v. Chuckleberry Puhl'g, Inc., 939 F. Supp. 1032 (S.D.N.Y. 1996); Sterling Drug
Inc. v. Bayer, 14 F.3d 733 (2d Cir. 1994). Although the use of injunctive relief tailored
to accommodate competing interests occurs more frequently (and thus, perhaps, more
easily) in trademark cases, see Internet Marks Joint Recommendation, supra note 33
(suggesting the remedies to be afforded successful plaintiffs in online trademark disputes),
it is also possible in copyright cases. See Dinwoodie, A New Copyright Order, supra note
8, at 558-569 (applying substantive law method to choice of law dilemma in international
copyright disputes). This makes somewhat surprising the response of U.S. courts and
(most) U.S. commentators (in a nonintellectual property context) to the efforts of the
French judge in the well-publicized Yahoo! litigation to find a solution that took account
of the values of different affected nation-states. See Yahoo! Inc. v. Le Ligue Contre Le
Racism et, L'Antismitisme, 145 F. Supp. 2d 1168 (N.D. Cal. 2001).
77. See Subafilms, Ltd. v. MGM-Pathe Comms. Co., 24 F.3d 1088 (9th Cir. 1994).
78. See Nintendo of Am., Inc. v. Aeropower Co., 34 F.3d 246, 249 n.5 (4th
Cir. 1994).
79. See, e.g., Ocean Garden, Inc. v. Marktrade Co., 953 F.2d 500 (9th Cir. 1991).
80. See 15 U.S.C. § 1125(d)(2) (2004); see also Heathmount A.E. Corp. v. Techn-
odome.com, 60 U.S.P.Q. 2d (BNA) 2018 (E.D. Va. 2000) (exercising in rem jurisdiction
over a domain name registered with a registrar located in the United States in a dispute
between Canadian parties). More all-encompassing U.S. regulation of the domain name
space may in the long-term occur through the operation of a complementary, but largely
unheralded, provision also introduced by the Anti-Cybersquatting Consumer Protection
Act. This provision, codified as section 32(2)(D)(v) of the Lanham Act, permits domain

20
International Intellectual Property Law and Policy
name owners aggrieved at the loss of a UDRP proceeding, and hence of their domain
name registration, to bring a claim in U.S. federal court seeking (i) a declaration that their
domain name registration does not violate the Lanham Act, and (ii) an order returning the
domain name registration. The First Circuit, in the first appellate consideration of this pro-
vision, read section 32(2)(D)(v) to offer "disappointed [UDRP] participants with a chance
to have any unfavorable UDRP decision reviewed in a U.S. court," Sallen v. Corinthians
Licenciamentos, 273 F.3d 14, 28 (IstCir. 2001) (emphasis in original). A textual analysis of
section 32(2)(D)(v) suggests that the U.S. court's determination of noninfringement (and
hence of the ownership of the domain name registration) would turn on the application of
U.S. law. And, under a traditional view of U.S. trademark principles, the ability of the suc-
cessful UDRP trademark complainant to resist a section 32(2)(D)(v) claim by the domain
name registrant would appear to rest upon the trademark owner possessing U.S. rights. See
generally Graeme B. Dinwoodie, Ten Years of Trademark Law: Lessons for the Future, 9
International Intellectual Property Law & Policy (Flugh Flansen ed., forthcoming). But see
BarceIona.com, Inc. v. Excelentisimo Ayuntamiento De Barcelona, Civ. Action No. 00-1412-
A (E.D. Va. Feb 22, 2002) (interpreting the Anti-Cybersquatting Consumer Protection Act
to protect foreign trademark rights), available at http://www.udrplaw.net/Barcelona.pdf. I
am unaware of any similar provision in other countries that might redress this elevation of
U.S. courts and U.S. rights. And, in any event, the number of "appeals" of LJDRP decisions
filed in the U.S. courts, see supra note 47, suggests that U.S. law may come essentially
to apply to most domain name disputes because of broader social and economic forces.
Cf, Dinwoodie, A New Copyright Order, supra note 8, at 577—579 (discussing copyright
law).
81. See Gen. Motors Corp. v. Lopez, 948 F. Supp. 684 (E.D. Mich. 1996).
82. See Murray v. British Broad. Corp., 81 F.3d 287, 290-291 (2d. Cir. 1996) (an-
alyzing the national treatment obligation in international copyright law); Creative Tech.,
Ltd. v. Aztech Sys., Ltd, 61 F.3d 696, 700-701 (9th Cir. 1995) (giving weight to the princi-
ples of national treatment and territoriality); id. at 706 (Ferguson J., dissenting) (same); cf.
Heathmount A.E. Corp., 60 U.S.P.Q. 2d (BNA) 2018 (considering the nature of ICANN
proceedings); see also Subafilms, 24 F.3d at 109-198 (taking into account recent develop-
ments in international copyright law in determining the territorial scope of the copyright
statute).
83. See Jane C. Ginsburg, Private International Law Aspects of the Protec-
tion of Works and Objects of Related Rights Transmitted Through Digital Networks,
WIPO Doc. GCPIC/2 (Nov. 30, 1998), available at http://www.wipo.int/eng/meetings/
1998/gcpic/doc/gcpic-2.doc; id., 2000 Update, WIPO Doc. No. PIL/01/02 (Dec. 18,2000),
available at http://wipo.int/pil-fornm/en/dociiments/pdf/piL01_2.pdf.
84. See Stephen B. Burbank, Jurisdictional Equilibration, The Proposed Hague Con-
vention, and Progress in National Law, 49 Am. J. Comp. L. 203, 204 (2001).
85. See Austin, supra note 62.
86. See Dinwoodie, A New Copyright Order, supra note 8, at 550-551.
87. See Anne-Marie Slaughter, judicial Globalization, 39 Va. J, Int'l L. 1103 (1999).
88. See Mark Tnshnet, The Possibilities of Comparative Constitutional Law, 108
Yale L.J. 1225 (1999); Mark Tnshnet, Returning with Interest: Observations on Some
Putative Benefits of Studying Comparative Constitutional Law, 1 U. Pa. J. Const. L. 325
(1998); Vicki C. Jackson, Narratives of Federalism: Of Continuities and Comparative
Constitutional Experience, 51 Duke L.J, 223 (2001).

Architecture of International Intellectual Property System 21
89. Indeed, those critics who wish to reserve intellectual property issues to the control
of national courts might wish to ensure that the Hague Convention includes a broad
exclusive jurisdiction provision rather than (as many do) advocating that intellectual
property be wholly excluded from the scope of the convention,
90. See Michael P. Van Alstine, Treaty Law and Legal Transition Costs, 77 Chi.-Kent
L. Rev. 1303 (2002).

The TRIPS Agreement and the Doha Round:
History and Impact on Economic Development
Daniel J. Gervais*
The World Trade Organization (WTO) Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS)1 was negotiated as part of the Uruguay
Round of Multilateral Trade Negotiations between 1986 and 1994. In fact, TRIPS
is only Annex 1C of the Agreement Establishing the World Trade Organization,2
the successor organization to the General Agreement on Tariffs and Trade
(GAIT). As such, TRIPS was part of a broad package of trade rules. As we will
see, it is essential to bear in mind this bargaining aspect of TRIPS to understand
its emergence as part of the WTO legal framework.
In this chapter, we will begin by looking at the history of TRIPS and then
consider the salient substantive elements of the Agreement and of ongoing discus-
sions in the WTO, notably as part of the Doha Round. After this mostly descriptive
portion of the chapter, we will analyze TRIPS by providing elements of a contex-
tual analysis, first from a political perspective and then from an economic one,
using recent surveys as a backdrop.
INTELLECTUAL PROPERTY IN THE GATT
Before embarking on an analysis of the history of TRIPS, it is worth noting that
the GATT was not an obvious home for a new intellectual property instrument of
that magnitude. By and large, intellectual property was basically considered in the
GATT context as an "acceptable obstacle" to free trade, at least until the Tokyo
Round. During that round, held between 1973 and 1979, trade in counterfeit
* This chapter is based in part on my book The TRIPS Agreement: Drafting History and Interpretation
(2d ed. 2003) and my earlier articles, Intellectual Property, Trade and Development: The State of Play,
74 Fordham L. Rev. 505 (2005), and The TRIPS Agreement: Interpretation and Implementation,
21 Eur. Jntell. Prop. Rev. 156 (1999).

24 International Intellectual Property Law and Policy
(trademark) goods had started to emerge as a serious issue. Attempts to agree on a
set of common rules to stop trade in counterfeit goods failed, but efforts to include
a specific discipline within the GATT framework continued. Invoking their right
to protect intellectual property under article XX(d) of the GATT,3 a number
of contracting parties prepared an Agreement on Measures to Discourage the
Importation of Counterfeit Goods, a draft of which was circulated in 1979 and
1984.4 Following a Decision on Trade in Counterfeit Goods contained in the
Ministerial Declaration of November 29, 1982,5 consultations were held with
World Intellectual Property Organization (WIPO) on "legal and institutional
aspects involved in trade in counterfeit goods."6 This Decision instructed the
GATT Council7 to " examine the question of counterfeit goods with a view to
determining the appropriateness of joint action in the GATT framework on the
trade aspects of commercial counterfeiting and, if such action is found to be
appropriate, the modalities of such action."
At the fortieth Session of GATT "Members" in November 1984, a more
concrete step was taken. In pursuance of their 1982 Decision, they created a
group of trade experts to examine the consolidated Secretariat documentation.
That group was to be assisted by an expert nominated by the Director General
of WIPO, who then referred the matter to the WIPO Governing Bodies.8 The
Group of Experts on Trade in Counterfeit Goods tabled its report on October 9,
1995.9 The Group made the following points in its report:
(a) While all intellectual property rights were affected, goods bearing protected
trade marks were more directly affected.
(b) A growing problem of trade in counterfeit goods existed.
(c) Existing provisions of international law (at the time) and more particularly
the Paris Convention were very useful yet insufficient instruments to prevent
trade in counterfeit goods, in particular as regards surveillance and dispute
settlement.
(d) There were diverging views on the question of whether additional action
needed to be taken at the international level and, in the affirmative, whether
GATT was the appropriate forum and indeed whether it was a competent
one.
(e) Parallel imports10 are different from counterfeit goods and should be treated
accordingly,
(f) Any measures taken to prevent trade in counterfeit goods should not become
an obstacle to trade in genuine goods.
The Group concluded that joint action was probably necessary, but was
unable to agree on whether GATT was an appropriate forum for such action,
It referred this policy matter to the Council. All these efforts failed to achieve
what many governments felt was becoming a necessity: a binding obligation
to eliminate trade in counterfeit and pirated goods.11 There was resistance to
the establishment of new norms. Some countries believed that no additional

The TRIPS Agreement and the Doha Round
25
standards were necessary or that they would impede legitimate trade. Others held
the view that WIPO, which administers the Paris and Berne Conventions,12 and
not the GATT, was the appropriate forum for treatment of these issues.
When the Uruguay Round was launched in 1986, the fairly limited nego-
tiating mandate in the area of intellectual properly did not foreshadow a com-
prehensive outcome such as TRIPS. It is worth quoting here in its entirety the
relevant paragraphs from the Ministerial Declaration that launched the Round
in Punta del Este (Uruguay):
In order to reduce the distortions and impediments to international trade, and
taking into account the need to promote effective and adequate protection
of intellectual property rights, and to ensure that measures and procedures
to enforce intellectual property rights do not themselves become barriers to
legitimate trade, the negotiations shall aim to clarify GATT provisions and
elaborate as appropriate new rules and disciplines. Negotiations shall aim to
develop a multilateral framework of principles, rules and disciplines dealing
with international trade in counterfeit goods, taking into account work already
undertaken in GATT.
These negotiations shall be without prejudice to other complementary
initiatives that may be taken in the World Intellectual Property Organization
and elsewhere to deal with these matters.13
In comparing this text with the TRIPS Agreement, the work accomplished
between Punta del Este and Marrakesh, in which the final ministerial conference
of the Uruguay Round and the official signing ceremony were held in April
1994, becomes readily apparent: the broadest and most extensive multilateral
agreement in the field of intellectual property, covering basically the entire area
and adding enforcement, acquisition and most-favored-nation obligations to new
and existing rules and incorporating those rules in what could be considered the
only truly effective and binding dispute settlement mechanism between states
was negotiated on the basis of a limited initial mandate.
The Punta del Este paragraph also shows how difficult it was to get contracting
parties to accept this new subject matter. Indeed, most of the text states what the
future agreement should not do or recasts it in narrow GATT parlance. A link
was thus made between intellectual property and unimpeded trade in legitimate
goods efforts should "aim to clarify" existing GATT provisions, whose scope was
very limited. Negotiations had to address essentially the question of trade in
counterfeit goods "taking into account work already done in the GATT," in other
words the meager results of the Group of Experts.
Finally, GATT efforts in this field were not to affect complementary work
in WIPO. Even the name of this new item is in itself a political achievement;
what are the aspects of intellectual property that are not, in one form or an-
other, "trade-related"?14 The expression was probably used to give the impression
that the subject matter was confined to more traditional GATT questions, and

26
International Intellectual Property Law and Policy
adding the words "including trade in counterfeit goods" recalled the link to the
(unsuccessful) work carried out between 1979 and 1985. One could thus say
that the entire TRIPS Agreement, with the possible exception of enforcement
provisions destined to curb trade in illicit goods (which had been previously en-
visaged in GATT) rests on the final words on the first paragraph: "and elaborate
as appropriate new rules and disciplines."
THE EMERGENCE OF TRIPS
The negotiations, which began in 1986, produced very little until March
1990. In the interval, the GATT Secretariat had had to amass a considerable
amount of data on existing intellectual property norms and possible areas for
future negotiations. At the end of March 1990, the European Community,
on behalf of the then fifteen member states of the European Union, tabled a
proposal that could be considered as the spark that ignited the work toward
the TRIPS Agreement. Boldly titled "Draft Agreement on Trade-Related As-
pects of Intellectual Property,"15 the proposal covered all aspects of intellectual
property rights as well as their acquisition, enforcement, and the application
of basic principles, such as national treatment and most favored nation, all in
treaty language. The proposal's structure was closely followed by the United
States, which tabled its own proposal, under the same title and also in treaty
language.16 The similarity between the two texts suggested that transatlantic con-
sultations had preceded the tabling of both documents. In fact, work by several
academics, including Professor Susan Sell, has shown that a first-ever consortium
of pharmaceutical, software, and entertainment industries, initially in the United
States but later extended to Europe and Japan, had helped ptoduce that initial
draft.17
In any event, this common structure was eventually adopted and, subject
to a few changes, would serve as the basis for the emerging Agreement. Three
additional proposals were tabled in the following months. Japan,18 Switzerland19
and a group of twelve developing countries20 tabled draft agreements containing
a mixture of statements and provisions in treaty language. Two other developing
countries, Pakistan and Zimbabwe, Joined the twelve that had tabled what was
to become the developing countries' proposal. The incorporation of intellectual
property issues in the main framework of GATT was clearly a major issue for a
number of developing nations. Chile, in a communication dated May 14, 1990,
stated:
With regard to Part II of that draft,21 on standards relating to the protection
of intellectual property, it is Chile's intention that it should in no case be
incorporated in the structure of the GATT, but rather that, if it is adopted, it
shall be the subject of an agreement to be administered by WIPO or another
organization other than GATT.22

The TRIPS Agreement and the Doha Round 27
The last document to be included in the basis for further negotiation was an
Australian text on geographical indications.2' The proposal provided for protec-
tion by requiring Parties to refuse registration or invalidate a trademark suggesting
the territory or part thereof of a Party with respect to goods not originating in that
territory, when this could mislead or confuse the public, and by prohibiting the
use of such an indication.
The playing held was now clearly delineated. Industrialized countries had
their vision of the basic parameters and scope of a future TRIPS Agreement. It
was at this juncture that Negotiating Group Chairman Lars Anell of Sweden
crafted a document that may be considered pivotal. The paper, which was en-
titled "Chairman's draft," but generally known as the "Composite draft text,"
was distributed on June 12, 1990, under the Chairman's responsibility. The
paper identihed the main proposals on the table, by the sponsoring author
(i.e., the country that wrote and proposed a text) and setting out substantive
differences.
Following informal discussions, this draft became a formal document known
as the Chairman's report to the Group of Negotiation on Goods.24 The document
not only adopted the structure of the U.S. and European proposals, but reduced
almost all "North-North" differences among the various proposals to a series of
"square brackets —that is, versions of the same provisions of entire draft arti-
cles being square-bracketed. These alternatives were consolidated in document
W/76 in what was identified as the "A" approach, the purpose of which was to
create a single agreement covering all intellectual property rights, their acqui-
sition and enforcement as well as applicability of GATTAVTO provisions. The
developing countries' position was also reflected, as a "B" approach. Many de-
veloping countries were still opposed to an all-encompassing agreement, and the
text allowed for a possible separation into two agreements, one on trade in coun-
terfeit and pirated goods, that is, more "traditional" GATT (trade) matters, and
a second agreement on the "availability, scope and use" of intellectual property
rights.
The road ahead was perfectly clear: the task of the negotiators was to eliminate
all sets of square brackets. In other words, there were three options to choose from:
adopt one of the solutions proposed to each of the questions raised, abandon
the issue, or find compromise language. In spite of its remarkable qualities,
the text could not be perfect. Certain countries felt that the text, which tried
to reflect as accurately as possible all that was on the negotiating table, had
taken sides by adopting an overall structure very similar to that of the E.G. and
U.S. proposals (although the possibility of having two separate agreements was
clearly mentioned). Other countries felt that some of the issues contained in
their proposal had not been fully taken account of and requested modifications.
Elowever, by and large, the text was eventually accepted as the basis for further
discussions.
As the negotiations progressed, the Chairman and Secretariat regularly up-
dated the "Chairman's text."25 By October 1990, the text contained standards

28
International Intellectual Property Law and Policy
in all fields of intellectual property and a provision stating that they constituted
"minimum requirements." On various occasions during the lead-up to the Brus-
sels Ministerial meeting, the Group reported to higher authorities of the Uruguay
Round. This creative use of deadlines generated an atmosphere of urgency and
encouraged participants to work even faster. The frantic pace of work during the
last few weeks before the Brussels Ministerial Conference of December 1990 led
to an amazing result.
In early December 1990, the draft TRIPS Agreement was so far advanced
that it would probably have been possible to finish it, had other parts of the
Uruguay Round package been sufficiently advanced. Unfortunately, negotiations
in a number of other sectors26 had not made much progress since Punta del
Este, and many observers were of the view, at the opening of the meeting, that
there was too much to resolve in a week, even at Ministerial level. The progress
made until December 1990 explains why the "Brussels text" resembles the (final)
Marrakesh version of 1994. Apart from the four issues already mentioned, most
of the outstanding issues were drafting points, although some had enormous
importance (e.g., exclusion from patentability). On all those issues, options were
well known, and compromise was within reach.
After Brussels, the focus of the Uruguay Round shifted to sectors, includ-
ing agriculture, where wide gaps still separated the negotiators. Work on TRIPS
continued, but in the aftermath of Brussels, a "break" was needed before any
additional progress could be made.27 The structure of negotiations had been
streamlined by the then GATT Director General Arthur Dunkel. Seven negoti-
ating groups were set up to replace the existing fifteen; this meant that a number
of issues were "merged."
However, reflecting the special technical nature of intellectual property,
TRIPS remained as a separate group (one of the seven). Thh working method
remained more or less the same, with a group of "most interested participants"
continuing its informal work and reporting to the (formal) negotiating group. Ne-
gotiations continued on the basis of the Brussels draft. Problems and divergences
of views were well known,28 and negotiators knew that little progress could be
made at their level on the most politically sensitive problems: possible drafting
reflecting the various positions had been circulated in the weeks before Brussels,
and there was nothing to add.
From September to November 1991, the discussions thus focused on specific
issues. The Group tackled the crucial issue of the protection of existing subject
matter. Chairman Anell had proposed that protected subject matter existing at
the time of entry into force of the agreement should be protected. The U.S.
pharmaceutical industry's demands concerning protection of pending patents
(known as "pipeline" protection) were directly on the table, but no agreement
could be reached at that stage. The Andean Group (Bolivia, Colombia, Peru, and
Venezuela) tabled a proposal29 suggesting changes to the Brussels text, notably
the inclusion of all substantive provisions of the Berne Convention, without the
exclusion of moral rights (article 6his)P0

The TRIPS Agreement and the Doha Round 29
The Chairman of the Negotiating Group, together with the Secretariat,
prepared another key document. Stripped of all options, this new version of a
draft TRIPS agreement endorsed by Director General Dunkel was included in
the second "Draft Final Act Embodying the Results of the Uruguay Round of
Multilateral Trade Negotiations.'"1 As just noted, there were no options left. In
consultation with key contracting parties, the drafters of the text had chosen to:
• grant national treatment and (which is unusual in the held of intellectual
property) most-favored-nation treatment subject to a number of limitations
and exceptions;
• exclude moral rights (article 6bis) of the Berne Convention;
• provide a rental right, but allow Japan (and others) to maintain a system
combining a short exclusive right followed by a remuneration right;
• protect "new or original" industrial designs;
• provide special protection (under geographical indications) for wines and
spirits, thus allowing for a separation of these appellations;
• provide patent protection of twenty years from filing, in line with practice
in a majority of countries;
• impose patentability' of inventions in all fields, with a possible exclusion
for plants and animals;
• impose a general transitional period of one year from entry into force, with
an additional four years for developing countries and another hve for least
developed participants^2
Reaction to the new draft was mostly positive, and it was decided to leave the
text aside until more progress had been made in other sectors. However, the U.S.
pharmaceutical industry was worried about the transitional period to be accorded
to developing countries, which could in their view make it difficult to obtain
faster changes on a bilateral basis, since official delays would be enshrined in a
multilateral instrument." That industry not only wanted immediate protection,
but had been trying since at least 1989 to obtain pipeline protection. The U.S.
motion picture industry was concerned about exceptions to national treatment.
It wanted full national treatment on private copying levies, which at that time
were commonplace in Europe and generated substantial revenues. In the United
States, a hard-to-reach consensus had led to the imposition of a levy on the (at that
point in time) very marginal market for "digital" recordable carriers, to the exclu-
sion of the much more common analog tapes. The Motion Picture Association
also demanded a dehnition of the term "author" that included corporations.'4
On the other side, India refused to accept the TRIPS "package" in spite of the
transitional periods. It was concerned about restrictions on compulsory licensing
of patents, in particular where a patent was not "worked"'s in a country.
Negotiations resumed at the end of 1992. However, the 1992 text was not
extensively modihed and became the basis for the TRIPS Agreement adopted at
Marrakesh on April 15, 1994.

BO
International Intellectual Property Law and Policy
AN OVERVIEW OF THE SUBSTANCE OF THE AGREEMENT
In most cases, TRIPS negotiators incorporated international norms from
extant treaties by reference. They were altered only to the extent that there was
a "consensus" that they should be updated.36 This is true of the Paris and Berne
Conventions and the draft Washington treaty (which never entered into force
but was nonetheless used as a foundation for TRIPS)—the three international
agreements that deal with copyright, industrial property (patents, designs, and
trademarks) and integrated circuits, respectively.
By and large, it would be fair to say that the so-called North imposed its
then most advanced set of norms on the South. In fact, there were relatively
few concessions made by major industrialized countries during TRIPS, despite
their disagreements on some issues,37 except the need to submit themselves to
binding dispute settlement. By contrast, developing countries were forced to
accept a package that they, in certain cases perhaps, did not fully understand
and that contained a complete set of intellectual property norms they now had
to implement into their national law. The only true measures they obtained
(in addition to articles 7 and 8) were transitional periods to implement the
Agreement. For most developing countries, such transitional periods expired
in January 2000, and these transitional periods expired five years later for least
developed countries.'8
The TRIPS Agreement covers not only all areas already protected under
preexisting conventions such as the Paris and Berne Conventions, but also, and
for the first time, rights that did not benefit from any multilateral protection. In
addition, and some would say perhaps more importantly than its broad coverage,
TRIPS enshrined detailed rules on one of the most difficult and, for right holders,
painful aspects of intellectual property rights: enforcement—that is, how one uses
intellectual property rights to stop or prevent an infringement or get compensation
from the infringer for an infringement that took place.
The two most fundamental perceived flaws of the Paris and Berne Conven-
tions were (1) the absence of detailed rules on the enforcement of rights before
national judicial administrative authorities and (2) the absence of a binding and
effective dispute settlement mechanism for disputes between states. With the evo-
lution of the world trading system an^l the skyrocketing importance of intellectual
property in a globalized world economy, a serious updating of international intel-
lectual property rules was required. By the same token, however, the enormous
potential impact of changes to the rules on major industries made it difficult to
agree upon any such changes.
Let us briefly examine the substantive norms contained in TRIPS in the
following order: general provisions, copyright, industrial designs, trademarks,
geographical indications, patents, confidential information, enforcement, dispute
settlement, transitional provisions, and finally the protection of existing subject
matter (i.e., subject matter in existence at the time of application of TRIPS in a
WTO member country).

The TRIPS Agreement and the Doha Round 31
General Provisions
The first few articles of the TRIPS Agreement require that WTO members
comply with the substantive provisions of the above-mentioned Paris and Berne
Conventions.'9 These two articles have the effect of imposing the obligations
contained in those provisions to countries not part}' to the Conventions, while in-
tegrating all WTO Members in the TRIPS framework, notably as regards dispute
settlement. The negotiators were wise not to write entirely new rules, but to add
to existing ones. The former option, while intellectually tempting, could have
wreaked havoc with the existing intellectual property system. At the very least,
transition costs would have been enormous.
TRIPS was drafted so as to create a positive obligation to comply. First, it
requires that WTO Members take the necessary steps to bring national legislation
in line with the relevant provisions of the Paris Convention. Second, with respect
to the Berne Convention, the Agreement adds that states shall not have rights or
obligations under TRIPS "in respect of the rights conferred under Article 6bis of
that Convention or of the rights derived therefrom/'40 Added to the obligation
to comply with the Paris and Berne Conventions is a provision indicating that
the contents of Part II of the TRIPS Agreement (sector-specific norms) do not
derogate from existing obligations. Article 2(2) thus confirms the fact that TRIPS
is a "Paris-plus" and, except in the area of moral rights, also a "Berne-plus"
instrument.
Articles 3 and 4 of TRIPS guarantee national treatment (i.e., the obligation
to treat foreign right holders no less favorably than nationals) and the so-called
most-favored-nation treatment according to which benefits accorded nationals of
a specific foreign country must be extended to nationals of other Contracting
States. National treatment was part of both Paris and Berne, but an important
difference between TRIPS and earlier WIPO-administered agreements is that
the actual practice of states can now be tested before a WTO dispute settlement
panel, as we shall see below. Most-favored-nation treatment is a new norm in the
field of international intellectual property.
A last provision worth noting and already alluded to is article 6, which ex-
cludes from dispute settlement the question of "exhaustion of rights," otherwise
known as parallel importation, that is, the importation of goods lawfully manu-
factured in another country and generally intended for distribution in that other
country.
Copyright
In the copyright area, article 10 of the TRIPS Agreement is the first provision
in any multilateral instrument to confirm the protection of computer programs
by copyright. Although laws in many countries had been amended as early as
1990 to include computer programs in the list of protected works, the extent of
the protection was still unclear. In respect of databases and other "compilations,"

32 International Intellectual Property Law and Policy
article 10(2) confirms the application of copyright to databases. The protection
of databases by copyright is very thin, however, and is limited to the selection and
arrangement of the contents. This explains the move toward sui generis protection
in Europe41 and the debates in the United States concerning the application of
the tort of misappropriation.42 Article 11 of TRIPS establishes a rental right on
computer programs and films. A similar right in respect of sound recordings is
provided in article 14(4).
Industrial Designs
There are only two provisions of the TRIPS Agreement dealing with indus-
trial designs, but their impact on the protection of industrial designs could be
significant. Article 25(1) creates an obligation on WTO Members to protect all
designs that are "new or original." The two criteria are not cumulative. The sec-
ond sentence allows WTO members to apply an objective criterion of novelty as
opposed to a subjective one. The expression independently created in the first
sentence of the article is directed to what one could call subjective novelty, in the
sense that the design must not have been copied on or imitate an existing design;
the possible exclusion by a WTO Member of "known designs or combinations
of known designs features" is clearly an objective criterion. In other words, the
former is closer to copyright-ty pe tests, while the latter resembles the "prior art"
(novelty) test of patent law. Again, the need to reflect various conceptions of
the protection of industrial designs had to be taken into consideration. Negotia-
tors sought to achieve the overarching objective: to ensure an adequate level of
protection of industrial designs.
Finally, the last sentence of this article allows WTO Members to exclude
design dictated essentially by technical or functional considerations. This may
apply to the definition of originality applicable to designs, which seems to be
intended to refer to aesthetic choices made by the designer other than those
dictated by such functional considerations. Since the exclusion is optional, how-
ever, so-called utility design protection remains possible, an issue of considerable
importance in the car-part industry.
Trademarks
In the area of trademarks, article 15(1) is the first multilateral definition of
a "trademark." The definition focuses on distinctiveness, which one could fairly
call a universal criterion in trademark law: Can the sign or combination of signs
distinguish the goods or services sold by Company A from those sold by Company
B? Where the signs are not inherently capable of distinguishing goods or services
(e.g., the shape or packaging of certain products), registrability may be made
dependent on distinctiveness acquired through use (also known as "secondary
meaning").

The TRIPS Agreement and the Doha Round
33
In addition, registrability may be limited in a WTO member country to
visually perceptible marks, thus probably excluding from mandatory registra-
tion olfactory (smell) and sound (music) marks. Another key element of the
definition is that it includes sendee marks. This is a major improvement on
article 6sexies of the Paris Convention, which only contained a "wish" to that
effect. The progress was confirmed in article 15 of the 1994 Trademark Law
Treat}/4'
Article 16(1) requires WTO members to grant the owner of a registered mark
the exclusive right to prevent third parties from using the mark in the course of
trade for goods or services that are identical or similar to those in respect of which
the mark is registered, where such use would result in a likelihood of confusion.
The provision adds a presumption of likelihood of confusion when an identical
sign is used for identical goods or services. Article 18 establishes a minimum term
for the validity of the initial registration of a mark and renewals thereof—seven
years. In keeping with principles established in other agreements in this field,
TRIPS provides for indefinite renewals, as long as conditions for renewal are met.
Geographical Indications
The TRIPS Agreement is the first multilateral text dealing with geographical
indications as such,45 and it may be rightly considered an important first step
in this difficult field. Given its groundbreaking nature, this section of the Agree-
ment begins with a definition of what constitutes a geographical indication. This
should be welcomed, because definitions are crucial to distinguish geographical
indications from the notion of indication of source and that of "appellation of
origin."
At first glance, article 22( 1) resembles article 2 of the Lisbon Agreement. Yet,
it differs from Lisbon on a number of points: (1) appellations of origin under the
Lisbon Agreement are necessarily geographical names of a country, region, or
locality, while geographical indications under TRIPS are any indication pointing
to a given country, region or locality; (2) appellations of origin under Lisbon
designate a product, while a geographical indication under TRIPS identifies a
good; (3) Lisbon limits appellations to the quality and characteristics of a product,
while TRIPS also mentions its reputation; and (4) appellations of origin refer to
a geographical environment, including natural and human factors, while TRIPS
uses a more general concept of "geographical origin."
Under article 23(1), using a geographical indication identifying wines or
spirits for wines and spirits not originating in the place indicated by the indi-
cation is prohibited. There is no need here to show that the public might be
misled or that the use constitutes an act of unfair competition. Article 23(4)
requires that negotiations be undertaken in the TRIPS Council to establish an
international notification and registration system for geographical indications for
wines.

34
International Intellectual Property Law and Policy
Patents
The patent section of the TRIPS Agreement was one of the most difficult to
negotiate. It involved a number of key North-North as well as North-South issues.
Article 27(1) requires that patents be available in all fields of technology, based
on the three usual criteria —namely, novelty, utility (industrial applicability), and
nonobviousness (inventive step). Combined with the explicit inclusion of both
product and process inventions and a prohibition of any distinction concerning
"fields of technology," one could say that a general principle of eligibility to be
patented is established. However, neither the three fundamental patentability
criteria nor the concept of "invention" are defined, thus leaving a certain degree
of flexibility to WTO member countries. For instance, computer programs per
se are not patentable in Europe, and the legal technique used was to consider
them as "non-inventions."46
Another important element is the elimination of discrimination "as to the
place of invention." This may concern more directly the United States, which
insists on maintaining its "first-to-invent" system, as opposed to the "first-to-file"
system.47
Article 27(2) contains a serious restriction to the general principle of eligi-
bility to be patented: a WTO member may exclude inventions from patentability
based on a risk that their commercial exploitation within its territory could en-
danger the ordre public or morality within the territory of the WTO member
concerned. Examples given are the protection of human, animal or plant life or
health. Avoiding serious prejudice to the environment is also a ground for ex-
clusion from patentability. It is difficult to predict how broadly those exceptions
will be interpreted. Although concepts of "serious prejudice" and ordre public
are not very precise, ordre public is well known in civil law systems, referring to
the fundamental values and principles from which one cannot derogate without
endangering the institutions of a given (postmodern?) society. An objective jus-
tification must exist. It is also worth noting that article 27(2) seems to require
exclusions of specific inventions, rather than entire categories of inventions.
Article 31 deals with what are traditionally referred to as compulsory licenses.
It sets specific conditions for the grant, but does not list or define the cases where
a license may be granted (except for semiconductor technology). Negotiators
weighed both options and preferred to leave open the cases where compulsory
licensing (defined here as use by governments or by third parties authorized by
governments) may be allowed. Instead, they established strict safeguards. The
first such safeguard is that licenses must be granted only on a case-by-case basis.
Compulsory licenses under which certain categories of inventions automatically
become eligible for a license would seem to violate this provision. Article 31 con-
stitutes a detailed checklist for WTO member countries. The compulsory license
may be granted provided that the following conditions are met, subject to a few
exceptions: (1) the need for prior negotiation with the right holder; (2) the dura-
tion of the compulsory license is limited; (3) its scope is similarly limited; (4) as

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“How do you know?” asked Tug.
“Saw him,” said Chip. “He came in while you fellows were swimming.
Left a message for Tom Mulligan. When he left he took the trail up
past headquarters.”
Tug and Walter considered this information soberly.
“Looks bad,” said Tug. “Shall you report to the big chief?”
“I don’t know,” replied Chip. “It’s suspicious, any way you look at it.”
“Don’t do it yet,” said Walter. “You haven’t got any real evidence, you
know. And let’s not say anything about it to the other fellows. It
does look mighty suspicious, but I don’t believe that a fellow who
would take a licking and then get up and shake hands the way Pat
did with me would steal. Let’s do a little scouting before we say
anything. What’s the matter with us three working together on this
thing?”
“Good!” agreed Tug. “Each night we’ll get together and report all
clues discovered. Gee, but I’d like to find that pin for Mother
Merriam!”
“You bet!” said Walter. “And I’d like to clear Pat, too,” he added to
himself.
The three shook hands on the compact, and separated to look for
clues. True to their agreement, they said nothing about Pat. But
others had seen the sawmill boy in camp, and by night there was a
pretty general conviction that Pat was the thief, so easy is it for mere
suspicion to pose as truth. A few of the more hot-headed were for
rounding Pat up the next day and forcing him to confess, but wiser
council prevailed, and it was agreed that Pat should be left alone
until real evidence against him was produced. After evening mess
Chip, Walter and Tug met in a quiet corner to report.
“Well?” said Tug.

“Footprints,” said Chip sententiously. “Found ’em leaving the regular
trail just north of the office, and pointing toward Mother Merriam’s
window. Just about Pat’s size, they were. Prints of the hobnails in
the right showed clearly, and three are missing on the ball. Sprinkled
some dirt over the tracks so that no one else would find them. What
did you find, Tug?”
“Nothin’, except that Pat went from here straight up to the Durant
lumber camp,” replied Tug.
“And you, Walt?”
“Nothing but this,” said Walter, drawing the tail feather of a crow
from his pocket. “Found it caught in the window screen.”
“Worse and more of it,” growled Tug. “Pat usually has a feather
sticking in that old hat of his. Don’t you remember?”
“Yep,” responded Chip.
They sat in silence for a while, considering the evidence.
“Looks bad, doesn’t it?” said Chip gloomily.
“It sure does,” assented Walter, “but footprints and a feather are
mighty small things on which to brand a fellow a thief. Let’s wait till
we get something else before we say anything.”
“Right-oh!” responded Tug, rising to stretch. “I’m going to turn in.
Nine o’clock sharp at the raft to-morrow, Walt.”
“Sure!” replied Walter.
Then, with the sounding of “taps” the boys sought their bunks.

CHAPTER VI
THE SPECTER IN CAMP
A shadow lay over Woodcraft Camp. The routine of daily life went on
as before, but there was something lacking. The fun-making was not
spontaneous. There was no enthusiasm in work or play. The old time
jollying ceased. The rivalry between the tribes seemed falling into
hopeless apathy. Even Spud Ely’s success in temporarily wresting the
fishing honors from Hal Harrison and the Senecas by landing a
twelve-pound lake trout served to awaken no more than a passing
interest.
Suspicion, the grimmest of all specters, strode back and forth
through the camp. Whenever a group of boys came together it
peered over their shoulders and with bony fingers choked back
laughter and song and strangled the old freedom of speech. It sat at
mess, and the chill of its presence was felt in the wigwams at night.
Who had stolen Mother Merriam’s pin? Who? Who? Could it be that
the thief was really one of their number?
For more than a week nothing was seen of Pat Malone. To many,
hasty of judgment, eager to rid themselves of the specter, this was
construed as evidence of guilt. But still the specter would not down.
The strain was telling not only on the spirits but on the tempers of
the boys. Under it they were becoming irritable, quick to take
offense.
Every night Tug Benson, Chip Harley and Walter met to report
progress, or, rather, lack of it. Finally, just a week after the sounding
of the “recall,” Chip was sent on an errand to the Durant lumber

camp. As soon as evening mess was over he signaled Tug and
Walter to meet him back of the wood-pile. There was a gleam of
triumph in his eyes that belied the studied gloom of his face as he
looked up to greet them.
“Well?” said Tug.
“It’s Pat, all right!” said Chip sententiously.
“Are you sure? Absolutely sure?” Tug and Walter cried together.
“Sure as—as—sure as I be that skeeters bite,” replied Chip, slapping
viciously at his neck.
“Did you find the pin?” asked Walter eagerly.
“Naw! You don’t suppose he’d be such a fool as to have it lying
around in plain sight, do you?” Chip’s tone indicated his supreme
disgust. “But,” he continued, “it’s a cinch that he took it just the
same. What’d we better do about it?”
“How the deuce do we know, when you haven’t told us your story
yet? Come, out with it, you tantalizing blockhead!” growled Tug
impatiently.
Chip shrugged his shoulders and grinned. “Well,” he began, “you
know the big chief sent me over to the Durant camp with a message
this afternoon. After I’d delivered it I thought I’d just look round a
bit, and do a little scoutin’. Pat wasn’t there. Fact is, the whole gang
was in the woods ’cept the boss and the cook. Got kind of chummy
with the cook, and he opened up a nice little can of his own private
troubles and poured ’em out for my special benefit.
“Seems he ain’t got much use for boys, and for Pat Malone in
particular. Nothin’ special, I guess, only Pat plays tricks on him and
raids his cooky box pretty often. They’re good cookies, all right,” he
added reminiscently.

“Well, I jollied him along,” continued Chip, “and went pokin’ ’round
like I’d never seen a lumber camp before. Pretty soon I see a pair of
spiked boots hanging on a nail. ‘What’ll you take for the boots,
cookie?’ says I. Cookie grinned. ‘Them ain’t mine,’ says he. ‘They
belong to that young rascal Pat Malone. I reckon money wouldn’t
buy ’em of him. Sets as much store by ’em as if they was pure gold.
Was give to him by one of the fellers over to your camp.’”
Tug looked up startled. “What’s that?” he asked sharply. “You don’t
suppose—you—say, do you believe it could have been Hal Harrison?”
Chip grinned. “Sure thing,” said he. “Found his name in the top of
one of ’em.”
Tug and Walter looked at each other blankly, while Chip went on
with his tale.
“When cookie wasn’t looking I just naturally examined those boots a
little closer, and measured ’em with a bit of string. They’re just the
size of those prints we found under Mother Merriam’s window, and
there’s three nails missing from the soles of the right one!” he
concluded dramatically. “Now what do you fellers think we’d better
do?”
Tug sat down and idly began to throw chips. “Looks bad,” he
ventured.
“Bad!” snorted Chip, “I call it open and shut, iron-bound, no-loophole
evidence! Pat’s the thief, or I’ll eat my shirt.”
“Guess you’ll find Durant cookies better eating,” said Walter drily.
Chip looked a bit sheepish. Then he slipped a hand into a capacious
pocket and brought forth three crisp brown discs. “They are pretty
good,” he admitted as he passed one to each of the others. “Might
as well admit that I followed Pat’s lead. Brought ’em along just to
prove that I really was there, Walt’s such a doubter,” he explained
ingenuously.

For a few minutes the boys munched the cookies in appreciative
silence. When the last brown crumb had disappeared Chip returned
to the subject.
“Well, Walt, what ought we to do?” he demanded.
“Nothing.”
Chip got up from the chopping block and dramatically planted
himself in front of Walter. “Say, what’s chewing you, anyway?” he
demanded. “You don’t mean to tell us that you still think Pat
innocent!”
“I’m not going to think him guilty until there is some proof,” replied
Walter doggedly.
“Proof!” Chip fairly yelped the word out. “Proof! Haven’t I given you
proof enough? What more do you want?” Chip flung himself down
on the chopping block in sheer disgust.
“It’s wholly circumstantial evidence, and—and——” Walter hesitated.
“And what?” demanded Chip. “Spit it out!”
“Why, the fact is——” Walter hesitated again.
“Come on! Come on! Out with it!” Tug broke in.
“Well, there is another pair of hobnailed boots of the same size in
our own camp, and three nails are missing from the right one!”
Chip and Tug stared at him blankly. Then Tug gave vent to a long
whistle of incredulity. “Say,” he demanded, “what kind of a bunco
steer are you givin’ us, anyway? Say that over again, you sawed off
pocket edition of Sherlock Holmes!”
Walter was somewhat nettled and he replied rather tartly, “I said
that there is another pair of boots in camp that might have made
those prints.”

“Whose are they?” Chip demanded.
Again Walter hesitated, and grew uncomfortably red in the face.
“What is the honor of a Scout?” he asked abruptly. “Has one Scout
any right to cast suspicion on the honor of another Scout? I don’t
believe that the owner of this second pair of boots knows any more
than we do about Mother Merriam’s pin, but if I should tell you who
he is you couldn’t help but wonder, and wondering, that kind of
wondering, leads to suspicion. You couldn’t help it. Until this thing is
cleared up you couldn’t look that fellow straight in the face with
quite the same feeling you do now. I didn’t mean to say anything
about it, but I had to to show how little real evidence Pat’s boots
afford. By the way, Chip, do you know just which nails are missing
from Pat’s boot, and which three were lacking in those prints?”
Chip confessed that this was a detail he had wholly overlooked.
“Then that’s where we all fall down on the footprint clue,” said
Walter. “Strikes me we’re blamed poor Scouts. The prints are gone
now, and if we had both pairs of boots here what good would they
do us? Without knowing which nails were missing in the prints we
couldn’t tell which boots made ’em, and there you are! We’d simply
be all the more suspicious of the owner of the second pair of boots.”
Tug arose and impulsively held out his hand. “Shake, old man! I for
one don’t want to know who owns those boots. My, my, this
business is bad enough as it is!” he said.
“Them’s my sentiments too,” Chip broke in. “It’s bad enough to
suspect one fellow outside the camp, and I should hate awfully to
have that kind of feeling about a brother Scout.”
Walter’s face cleared as the three shook hands. “I’m glad you fellows
see it that way,” he said. “We leave matters right where they were
then, do we?”
“Sure thing!” Tug spoke emphatically. “Mum’s the word. We’ll just
keep up our quiet little hunt and say nothin’. Gee, but I would hate

awfully to think that maybe some of the fellers thought I was a thief!
Of course I’m naturally curious about that other pair of boots, but I
wouldn’t listen now if you tried to tell me, for just as sure as little
fishes have tails I’d get to thinkin’ about that feller in a way I
wouldn’t want anybody to think of me. Funny about those boots of
Pat’s, ain’t it? You don’t suppose Hal gave ’em to him to pay for——
Oh, rats! There it is! It’s with Hal just like it would be with the owner
of that second pair of boots. We don’t like him. He’s licked us to a
frazzle fishin’, and here we are suspectin’ he ain’t on the level. Let’s
cut it out! Say, I’ve got an idea!”
“Phew! You don’t say! I wouldn’t have believed it of you, Tug,”
drawled Chip. “Hold it down with both hands ’til Walter can identify
it.”
Tug promptly back-heeled Chip and calmly sat on his head while that
unfortunate helplessly thrashed on the ground and in smothered
tones begged to be released.
“Think you can be respectful to your elders?” inquired Tug, holding
his seat by pinning down both arms of his victim.
A smothered mumble was translated to mean assent, and Chip was
released.
Tug proceeded to explain his idea. “You remember what Louis said
to Billy the other day? Well, what’s the matter with us three hanging
together to beat Hal at his own game? We all like fishin’, and there’s
just as big fish in this little old lake as Hal has yanked out of it. If he
can find ’em we can. We’ve been trustin’ too much to luck, same as
the rest of the fellers do. My idea——”
Chip cleared his throat, and Tug turned to glare at his erstwhile
victim. But that young gentleman looked so innocent as he inquired,
“What’s your idea, Tug?” that the latter relaxed his belligerent
attitude and resumed.

“My idea is that we read up about the different kinds of fish around
here, their habits, what they eat, when they feed, the kind of bottom
they like best and all that sort of thing. The big chief’s got a lot of
books about fish, and he’ll be tickled silly to have us read ’em. Then
we’ll pump Big Jim and Tom Mulligan, and do some real scoutin’—for
fish instead of thieves. If Hal has anything on us then we’ll just
naturally take off our hats to him and give him the high sign.”
“Bully!” cried Walter. “We’ve got just time before ‘taps’ to read up a
little on small-mouth black bass, and we’ll get away at daybreak to-
morrow mornin’ for our first scoutin’. I’ll go right up t’ the big chief’s
and borrow the book. Tug, you go hunt up Louis and get permission
for the three of us to take a canoe and leave before mess, and, Chip,
you hustle over and bamboozle cookie into puttin’ up a lunch for us.”
The others agreed, and the three boys separated on their several
errands. As they disappeared in the gathering dusk a rough unkempt
figure crawled from behind the wood-pile and watched them, an
ugly frown darkening his dirty but usually good-natured face.
“Yez think Oi’m a thafe, do yez?” he growled. “Oi don’t know what
yez think Oi shtole, fer Oi didn’t get here in toime ter hear ut all, but
if Oi iver get yez alone Oi’ll make yez chaw thim wurrds and shwaller
thim. Oi’ll—Oi’ll——” He shook a grimy fist at the retreating figures.
His eyes rested a moment on Walter’s square, sturdy figure and he
seemed to hear again the quiet voice: “I’m not going to think him
guilty ’til there’s some proof.”
Gradually his face softened. “Thot bye’s all roight. He’s sound timber,
he is,” he muttered.
He slipped into the blackness of the forest and presently hit the
Durant trail. For the most part his thoughts were as black as the
shadows around him.
“Thafe, is ut?” he muttered to himself. “Oi guess ut ain’t healthy fer
the loikes av me around thot camp. What roight have th’ loikes av
thim ter be callin’ me a thafe jist because Oi’m poor an’ live in the

woods? What roight have they to be callin’ me a thafe, an’ me wid
no chance ter say a wurrd? What show’s a bye loike me got,
anyway? Whin thot Walt bye licked me he said Oi ought ter be a Bye
Scout, an’ Oi’d begun ter think ut must be somethin’ foine. But if this
is the way they be afther doin’, callin’ a bye a thafe widout him iver
knowin’ what’s been shtole, Oi want nothin’ ter do at all, at all wid
Bye Scouts. Oi wonder what thot honor bus’ness is thot Walt bye
talked so much about. Oi’ll pump thot bye wid his pockets full av
rocks an’ see what he knows about ut.”
Abruptly his thoughts reverted to the fishing pact he had overheard
and slowly a grin crept among the freckles. “Goin’ ter bate Harrison,
be yez?” He slipped a hand into a pants pocket and clinked some
loose change there. “Oi wonder now, have yez got the price? Oi
guess yez don’t know what yez be up aginst. Jist the same Oi’d loike
thot Walt bye ter win out.”
A sudden thought struck him. “Oi wonder now wud he——” He took
a silver dollar from his pocket and held it up so that a ray from the
rising moon was thrown up from it in a bright gleam. “No,” he said,
“no, Oi don’t belave he wud, though why not Oi don’t see at all, at
all.”
He rapidly strode forward to the bunkhouse, and for once forgot to
play a good-night trick on the long-suffering cook.
The moon crept higher and higher. It filtered through the great
forest and touched the white birches with ghostly gleam. It looked
down upon a thousand tragedies among the little people of the
night. It bathed the two camps in silvery light, and all unconscious of
the greater tragedy in the hearts of men, it caressed into points of
living flame the tiny diamonds in Mother Merriam’s pin.
But there was no one there to see, and for a few hours even the
specter in the wigwams slept.

CHAPTER VII
FIRST LESSONS
Walter’s skill with his camera gradually won for him the distinction of
being the best photographer in camp. When, therefore, he
somewhat diffidently told Chief Woodhull of his ambition to secure
some flashlight views of deer the chief listened attentively to the
plans suggested for securing them, and promised to lay them before
Dr. Merriam. Imagine Walter’s delight when on the following day the
big chief sent for him, and after close questioning informed him that
it was arranged for him to make a two days’ trip to Lonesome Pond
with Big Jim for the purpose of trying for the coveted photographs of
wild deer in their native haunts.
It was an almost unprecedented honor for a first year boy. The
privilege of making such an expedition alone with one of the guides
was reserved for the older boys, whose experience and training
fitted them for the “roughing” which such a trip usually involved.
Walter fairly walked on air when he left Dr. Merriam to seek Big Jim
and make the necessary arrangements. He found the guide tinkering
with a jack-light.
“Dr. Merriam says——” began Walter.
“I know all about it, son,” interrupted the guide. “You an’ me’ll be
pardners for a couple o’ days, and we’ll start before daylight to-
morrow morning. Rustle round now and get your picter machine
ready. I reckon Mr. Peaked Toes will be a mighty unsartin subjec’, a
leetle mite bashful. If you don’t get him th’ first shot, ’tain’t likely
he’ll wait fer a second, so it’s up to you t’ hev everythin’ in workin’

order. Run over an’ tell cookie thet I want two loaves o’ bread, a slab
o’ bacon, some butter in a wide-mouth jar, flour, salt, cocoa an’
sugar fer a two days’ trip. We’re goin’ light, so you won’t need t’
bring nothin’ but yer fish rod, blankets, sneaks an’ an extra
handkercher. Better turn in early, fer we want t’ start at four o’clock
sharp. Hev cookie put up a lunch. Now skip!”
At quarter of four the next morning Walter slipped out of the
wigwam. The moon had not yet set, while in the east appeared the
first faint flush of the coming day. The forest lay black and still. For a
moment or two he shivered in the chill of the outer air after the
warmth of the wigwam. There was a light in the guides’ cabin, and
thither he made his way at once.
Just outside the door stood a pack basket, a tightly rolled blanket
lashed across it, and the handle of a frying-pan protruding from the
top. Big Jim’s favorite paddle leaned against it. As Walter
approached, the door opened and the guide stepped out.
“Hello, pard!” said he. “I was jes’ comin’ over t’ pull yer out o’ yer
blankets. Come in here an’ hev a cup o’ hot cocoa an’ stow thet
snack away; it’s easier t’ carry inside than out.”
When Walter had gulped down the hot drink and eaten the lunch put
up for him by the cook he felt ready for anything.
As they took their way down the trail to the lake the hoot of a great
horned owl suddenly broke the silence and wakened startled echoes
on Old Scraggy.
“Whooo-hoo-hoo-hoo! Whooo-hoo-hoo!”
“Ole Fly-by-night must hev had poor huntin’ last evenin’,” said the
guide. “Do you see him, son?”
Walter searched the trees near at hand, but could make out nothing
that resembled a bird, and his chagrin was deepened by the guide’s
next remark.

“Them books may tell yer where t’ look, but they don’t teach yer
how t’ use th’ eyes God give yer. Now any five-year-old born in th’
woods would hev seen thet big swelled up bunch o’ feathers fust
thing. Look at thet tall pine stump over thar t’ th’ right and——”
“Whooo-hoo-hoo-hoo! Whooo-hoo-hoo!” rang the fierce cry again,
and almost on the instant the top of the stump resolved into a huge,
broad-winged bird, that swiftly and noiselessly dropped behind a low
hemlock. A moment later it reappeared, a hare struggling in its
talons, and flew heavily over toward a swamp. Big Jim promptly
seized upon the episode to drive home a lesson in woodcraft.
“Pard,” said he, “thar’s a better lesson in the A B C o’ wood life than
I could give yer in a month o’ talkin’. If thet hare hadn’t let its narves
go on th’ jump, and had remembered what she ought t’ hev knowed
afore she was born, thet to sit tight an’ not move a muscle when yer
don’t want t’ be seen is th’ first law o’ th’ woods, she’d be sittin’ nice
an’ snug this very minute, instead o’ stuffin’ ole Fly-by-night’s craw.
Puss was narvous. The hoot startled her an’ she moved jest a leetle
bit. Probably she rustled a leaf. Them big owls is all ears. Fact, son;
the whole side o’ th’ head, pretty near, is an ear. He heared thet leaf
rustle, an’ he was Johnny-on-the-spot in a jiffy. Yer saw what
happened. Never make a sudden move in th’ woods. Sit tight if yer
don’t want t’ be seen, or move so slowly thet nothin’s goin’ t’ notice
it. Don’t never ferget it! Yer’ve jes’ seen what fergettin’ may cost.
When yer go in th’ woods leave yer narves t’ hum.”
The pack basket and duffle were stowed in the middle of the canoe,
Walter took the bow seat and the guide, kneeling in the stern, for he
had never outgrown his early training when canoes of his
acquaintance had no seats, shot the little craft out into the lake. As
they turned into the low marshy estuary which marked the outlet of
the lake, the first rays of the rising sun glanced over Mt. Seward.
Once in the main channel of the river they felt the gentle force of
the current, and under Jim’s powerful stroke they swept swiftly on.
Walter had been doing his full share, for he was a good paddler, but

now the guide suggested that he put up his paddle and hold his
camera ready for whatever they might surprise along the river’s
edge, or up some of the numerous setbacks.
The boy put his paddle aside and, slipping a film pack into the
camera, set the focus for one hundred feet. Then with thumb and
forefinger of his right hand on the focussing screw, ready to shorten
the focus should they get within less than one hundred feet of a
subject, he set himself to watch the shores.
“Remember now, no talkin’ an’ no sudden moves,” cautioned the
guide.
Alas for Walter! The lesson had yet to be driven home. Not five
minutes later the canoe shot around a bend, and without a sound
glided into a setback. Almost instantly a low warning hiss from Big
Jim put Walter on his guard. The canoe seemed merely to drift, but
if the boy could have seen the guide he would have witnessed a
magnificent exhibition of the canoeman’s art as, with paddle deep in
the water and moving so slowly as to make hardly a perceptible
ripple, he still kept the craft under perfect control.
Walter, every nerve tense, scanned the shores in a vain effort to
discover the cause of the guide’s warning. Inch by inch the canoe
crept on and still the boy saw nothing but the placid, pad-strewn
surface of the water, and the forest-lined shore. Presently his eager
ears caught a faint splash off to his right. Like a flash he turned,
swinging his camera with him. The next instant he realized his
mistake. With a sharp whistle of surprise and alarm a doe noisily
splashed shoreward from a point not fifty yards distant, where she
had been standing among the lily-pads. From the instant the canoe
had first caught her attention and excited her curiosity she had
remained so motionless that Walter had failed utterly to pick her out
from the background with which her protective coloring blended so
marvelously.

But the moment the boy moved she whirled for the shore, sending
the water flying in a shower of silver. As the boy, in open-mouthed
astonishment, watched her she lightly leaped a fallen log, and with a
parting flirt of her white flag disappeared in the undergrowth.
Walter’s chagrin was too deep for words. Indeed, he was very near
to tears as he realized what a rare opportunity he had missed, and
how wholly his own fault it was. He did not dare look at Big Jim, and
there was no comfort in the guide’s slow, sarcastic drawl:
“A clean miss, pard. Did them books teach yer thet lightnin’ whirl?
’Pears t’ me thet you an’ puss back thar, keepin’ company with ole
Fly-by-night, belong in th’ same class. Now if yer mem’ry had been
as good as yer fergittery we’d most likely hev drifted right up t’ thet
thar deer. No use wastin’ more time in here. Some day when yer hev
larned a leetle more woodcraft mebbe we’ll run down an’ try it
agen.”
This surely was rubbing it in, and Big Jim meant it to be so. Right
down in his big heart he was almost as disappointed for the boy as
was the boy himself, but he felt that this was the time to drive the
lesson home. Every word stung the chagrined young photographer
like a whip-lash, and he could not trust himself to make reply. He
was mortified beyond expression, for he had prided himself that he
knew the value of noiselessness and motionlessness, and that when
the test should come he would win golden opinions from the guide
for his display of woodcraft. Now, at the very first opportunity, he
had failed miserably, acting like the veriest tyro, and he felt himself
humbled to the last degree.
Had he turned he might have caught a kindly twinkle in the blue
eyes watching the dejected droop of his figure, but he kept his face
steadily to the front, gazing fixedly ahead, yet seeing nothing, while
automatically he swung his paddle and gloomily lived over the
bitterness of his mistake.

They were now once more in the current, and in a matter-of-fact
way the guide suggested that Walter put his paddle up and be ready
for whatever else might offer. As he adjusted the camera the boy
resolved that this time, come what might, he would show Big Jim
that he had learned his lesson.
The opportunity came sooner than he had dared hope it would. The
canoe swerved sharply toward the east bank, and presently Walter
made out a little brown bunch on the end of a log. With a nod of the
head he signaled the guide that he saw, and then attended strictly
to his end of the matter in hand. By this time the canoe was close in
to the bank, so deftly handled that it would approach within twenty
feet of the log before emerging from the screen of a fallen tree
which the guide had instantly noted and taken advantage of.
Jim was paddling only enough for steerage way, allowing the current
to drift them down. They were now close to the fallen tree, and the
guide began to silently work the little craft around the outer end.
Walter had reduced the focus to twenty-five feet. As they drifted
nearer and nearer to the subject he began to shake with nervous
excitement, so that it was only by the exercise of all his will power
that he could hold the camera steady. Inch by inch they crept past
the tree and Walter strained his eyes for a glimpse of the old log
with its little bunch of fur. He was holding his breath from sheer
excitement. Ha! There was the outer end of the log, and there, a
foot or so back, sat a muskrat, wholly oblivious to their presence.
Slowly, with the utmost caution, Walter turned in his seat, so slowly
that it seemed ages to him. The guide had checked the canoe within
less than twenty feet of the log and Walter altered his focus
accordingly. Now in his reflecting finder he clearly saw the little fur
bearer, a mussel in his paws. With a sigh of relief Walter heard the
click of the shutter in response to the squeeze of the bulb, held in
his left hand. Then as the rat made a frightened plunge, he
remembered that he had forgotten to withdraw the slide before
making the exposure.

It is an error the novice frequently makes and that the expert is
sometimes guilty of. It was, therefore, not surprising that under the
stress of excitement Walter should suffer this lapse of memory, but
coming as it did immediately after his other fiasco, it was almost
more than he could bear.
Big Jim was chuckling delightedly over the supposed success.
“Reckon musky never set fer his picter afore! Did he look pleasant?
Pard, yer sure did thet trick well. Had a bit o’ buck fever fust along, I
reckon. Thought yer seemed kind o’ shaky. Don’t yer mind thet
none. I’ve seen a feller with a clean open shot at a standin’ deer
within fifty yards wobble his rifle round so thet th’ safest thing in
thet neighborhood was thet thar deer. Now we’ll go on fer th’ next.”
Walter did not have the courage to tell the guide then of his second
blunder, but resolved that when they got in camp that night he
would own up like a man. For the next three miles nothing eventful
occurred. Then the boy got his third chance. It was a great blue
heron this time. It was standing on one foot, the other drawn up
until it was hidden among the feathers of the under part of the body.
The long neck was laid back on the shoulders, the sharp bill half
buried in the feathers of the breast. The big bird appeared to be
dozing. The light fell just right, and as it was intensified by reflection
from the water, Walter felt sure of a good photograph.
Little by little the canoe drifted in. Forty feet, thirty, twenty, ten—
click! This time there was no mistake. Working quickly but
cautiously, with as little motion as possible, he pulled out and tore
off the tab, set the shutter and, as the big bird spread its wings, a
second click caught it at the very start of its flight. The shutter was
set at the two hundredth part of a second, so that despite the
nearness of the subject, Walter felt reasonably certain that little
movement would show in the photograph.
“Get him?” asked Jim.
“Two of him,” replied Walter, a note of pardonable pride in his voice.

“Thet’s th’ stuff! Ye’re larnin’ fast,” said the guide, once more
shooting the canoe into the current.
This success went far to offset the previous failures and the boy’s
spirits rose. He began to enjoy his surroundings as he had not been
able to since the episode with the deer. Mile after mile slipped
behind them, the limpid brown water sliding between the unbroken
wilderness on either bank. Try as he would he could not get over the
impression of sliding down-hill, such was the optical effect of the
swiftly-moving water.
At last he heard a dull roar which increased in volume with every
minute. Then they rounded a sharp turn, and before them the whole
river became a churning, tumbling mass of white, with here and
there an ugly black rock jutting above the surface. The canoe felt
the increased movement of the water and the boy’s heart beat faster
as the bow of the little craft still pointed straight down the middle of
the river. Could it be that Big Jim would try to run those tumbling,
roaring rapids!
“Sit tight and don’t move!” came the guide’s sharp, terse command.
The canoe all but grazed a great gray boulder. Then dead ahead, not
two inches under water, Walter saw another. Surely they must strike
this, and then—he closed his eyes for just a second. When he
opened them the canoe was just shooting through the churning
froth on the edge of the rock, and that immediate danger was past.
He realized then how completely the man behind him was master of
the river and their craft. With fascinated eyes he watched each new
danger loom up and pass almost before he realized its ugly threat.
The roar of the rapids was now so loud that it drowned all other
sounds. Presently he became aware that they were no longer in mid-
stream. With a few powerful strokes the guide shot the canoe into a
back eddy and a second later it grounded lightly on a tiny sand
beach where Jim held it until Walter could leap out and pull it up
securely.

“How’d yer like thet?” shouted the guide as he lifted his pack basket
out.
“Great!” replied the boy, his eyes shining with excitement, as he
helped take out the duffle.
Big Jim adjusted the basket to his back, lashed the paddles across
the thwarts of the canoe so that when they rested on his shoulders,
with the canoe inverted over his head, it balanced perfectly, and
leaving Walter to follow with the rest of the duffle plunged into what
seemed at first glance an almost impenetrable thicket of maple,
birch and moosewood.
Walter found, however, that there was a well-defined trail, albeit a
rough one. It followed the course of the river, over moss-grown
decaying tree trunks, across old skidways, now firm to the foot and
again a bed of oozy black swamp muck in which he sank half-way to
his knees. After a mile of this they came out on the bank of the river
just at the foot of the falls which marked the end of the rapids. The
canoe was launched at once and in a few minutes they were again
speeding down-stream.
Three and a half miles below they made another portage. This put
them in a lake at the upper end of which a shallow stream
connected with a string of three small ponds. The last of these was
known as Lonesome Pond, and this was their destination.

CHAPTER VIII
LONESOME POND
Lonesome Pond was well named. A mile long by perhaps half a mile
wide at its widest point, it lay like a turquoise in an emerald setting
between two mountains whose upper slopes were dark with a
splendid stand of spruce and pine. A magnificent growth of birch,
maple and ash with an occasional pine or hemlock scattered among
them grew to the water’s edge, save along the southern end where
they had entered. Here for some distance a sphagnum swamp,
dotted with graceful tamaracks, extended on either side of the
narrow outlet, in places forming a natural open meadow.
The pond was shallow at this end, with great masses of lily-pads,
both of the white and the yellow or cow-lily. In contrast to this the
shore of the upper end was bold and rocky, heavily wooded to the
water’s edge. Here on a tiny patch of shingle, the only break in the
rocky shore line, the canoe was beached. A trail led up for a hundred
yards into a grove of hemlocks where, completely hidden from the
lake, was the camp which was Big Jim’s objective point. Two
comfortable lean-tos had been built perhaps ten feet apart and
facing each other, with a stout windbreak closing one side between
the two. The lean-tos were of hemlock bark, peeled from forest
giants and flattened to huge sheets. These sheets formed the sides,
back and steeply sloping roofs, the entire front of each, after the
manner of all lean-tos, being left open. In the middle, between the
two, were the charred embers of old fires, while the matted brown
needles of small hemlock and balsam twigs in both lean-tos bore

mute witness to the spicy, comfortable beds of other campers. A
rough board table stood at one side of the fireplace.
“Here we be, pard,” said Big Jim as he swung his basket to the
ground. “You take this pail an’ follow thet trail yonder till you find a
spring, while I dig out th’ grub. Reckon you must be hungry. We’ll
hev a bit o’ bacon now and a good square meal to-night.”
It was long past noon, and now that the excitement of the journey
was over Walter realized how empty his stomach was. He found the
spring easily, and when he returned Big Jim already had his basket
unpacked and was just starting the fire. He had cut two bed logs
about six feet long and eight or ten inches in diameter. These he had
flattened on top and one side and had placed side by side, flat sides
opposite and some three inches apart at one end, spreading to ten
inches at the other. Between these he had built a fire of hemlock
bark started with birch bark, which, by the way, is as good as
kerosene for starting a fire. In a few minutes he had a bed of
glowing coals over which the frying-pan was soon sizzling, and that
most delicious of all odors, frying bacon, mingled with pungent wood
smoke, assailed the boy’s eager nostrils.
By making the fireplace and fire in this way, Big Jim explained, the
frying-pan rested on an even surface, with a steady even heat
beneath it, and one could squat beside it in comfort without
becoming unduly heated. At the same time the bacon was cooked
thoroughly without scorching.

HE HAD BUILT A FIRE

A kettle of water was set over the coals to wash the tin plates,
knives and forks when the meal was over. How good that bacon,
bread and butter did taste, washed down by clear cold water! It
seemed to the hungry boy that he never had eaten such a meal, its
one fault being that there wasn’t enough of it. But Big Jim laughed
at him, telling him that that was only a lunch, but that he should
have a real dinner at sundown.
When the dishes were cleared away Big Jim took his axe and went
back into the woods returning presently with half a dozen forked
sticks of green wood. Two of these about four feet long were driven
into the ground, one at each end of the fireplace. Across them,
supported in the forks, was laid a straight young sapling which the
guide called a lug-pole. Then he took one of the other sticks and cut
it off about three inches above the fork or crotch, leaving a good
hand grasp. One branch was cut off some four inches from the fork,
the other branch being left long enough so that when a small nail
was driven in the end on the opposite side from the short part of the
fork and the fork inverted over the lug-stick a pail hung from the nail
would swing just over the coals. Other sticks were made in the same
way, but of varying lengths. The camp range was then complete.
The long sticks (they are called pot-hooks) were for bringing a kettle
close to the fire, while the shorter ones would allow of keeping
things simmering without boiling or danger of burning. Moreover, by
simply taking up a pot-hook by the hand grasp a kettle could be
moved anywhere along the lug-stick away from the hottest part of
the fire without burning the hands. It was simple, quickly made, yet
for all top cooking as effective as the gas range at home, and Walter
felt that he had learned an important lesson in woodcraft.
After the dishes were cleared away Big Jim led the way to a balsam
thicket, taking with him two straight sticks about four feet long,
hooked at the lower end. With his axe he rapidly lopped over a mass
of balsam twigs, showing Walter how to slip them on to the long
sticks so that when he had finished they had two big green spicy
cylindrical piles of balsam with a hand grasp at the top to carry them

by. Returning to camp Jim rapidly made up two beds. Small boughs
were laid first, overlapping so that the butts were hidden. A deep
layer of the small twigs were then laid on in the same way and
behold! a bed a king might covet!
About four o’clock the guide told Walter to rig his rod and they
would go in quest of their dinner. Paddling over to a cove where
several springs fed the lake they drifted idly while the guide studied
the various insects on and above the water. Finally he told Walter to
rig two flies, a brown hackle for the tail and a professor for the
dropper. The boy had already become fairly proficient in getting his
line out cleanly and dropping his flies with that lightness which so
closely simulates the falling of the living insects on the water. As yet
he had seen no indications of fish, but he was impatient to try his
luck. Big Jim, however, was lazily smoking, and Walter was forced to
be content with admiring the wonderful panorama of lake and
mountain spread before him as they idly drifted. Presently there was
a splash on the edge of the shadows inshore, and then Walter
caught a gleam of silver as another fish broke the mirror-like
surface. The fish had begun to rise.
With the same noiseless stroke that Walter had so much admired in
the morning Big Jim worked the canoe shoreward toward the
widening circle where the last fish had broken. At his signal Walter
cast, ten feet—twenty feet—thirty feet. The flies dropped lightly
almost directly above the spot where they had seen the fish. Hardly
had the tackle touched the water when there was a swift flash of
silver and with a deft twist of the wrist Walter struck.
With a rush the fish started for deep water, while the reel sang
merrily. Gently but steadily Walter applied the pressure of the rod,
when the first rush was checked, reeling in every inch of slack, until
five minutes later he led the tired captive within reach of Big Jim’s
eager fingers, which closed in his gills and the prize was theirs, a
shining half-pound spotted beauty, which the guide promptly and
mercifully killed by slipping a thumb into the mouth and bending the
head back till the spine broke at the neck.

So they drifted alongshore, Walter taking two more of about the size
of the first one, and several smaller ones. As they approached a lone
rock some fifty feet offshore he made a long careful cast just to the
edge of the deepest shadow of the rock. The strike which followed
was so fierce and the strain on the rod so great that but for the
screaming of the reel Walter would have been sure that he had
caught a snag. But there was no mistaking the active form at the
other end of the line. Big Jim had waked to the battle royal now in
progress and was bringing to bear all his skill in the handling of the
canoe.
Straight out into the lake shot the fish. “Give him th’ butt, boy, give
him th’ butt, but be careful!” shouted the guide. This Walter did,
elevating the tip of the rod until the springing little bamboo was bent
almost double, the fish pulling against the full spring of the rod,
clear from the butt. This served to check the rush. A period of
sulking in deep water followed. Then the line slackened until it hung
limply from the end of the straightened rod.
“He’s off,” thought Walter, his heart sinking. But the guide was not so
easily fooled.
“Reel, boy, reel!” he shouted, deftly turning the canoe as on a pivot.
Then Walter waked to the fact that the fish had started a rush
straight toward the canoe, hence the slack line. Madly he reeled until
a sharp tug that pulled the tip of his rod under water told him that
he was still fast. With a sigh of relief he gently increased the
pressure.
“Must be a four pounder, sartin,” said the guide, skilfully keeping the
canoe bow on. “Funny he don’t break water. He ought t’ hev been in
th’ air half a dozen times ’fore this.”
Thus far they had not had so much as a glimpse of the finny warrior.
Thrice he had come almost to the surface, but instead of the silver
flash arching through the air, which is the joy of the fisherman, there

had been no more than a sudden swirl of the placid surface, and the
fish had again sought the depths.
Walter’s wrist was feeling the strain. Despite the excitement he was
becoming tired. His heart was pounding with conflicting emotions,
alternate hope of landing a record prize and fear of losing it. Another
fit of sulking gave him a few minutes’ respite. When the next rush
started he felt that it was weaker, nor was it as long. Inch by inch he
was recovering his line, not for one instant relaxing the steady strain
on the fish.
The rushes were short now and quickly checked. Inch by inch, foot
by foot the reel took up the line. At last in the clear depths he got a
glimpse of a shadowy form as it started another rush. Big Jim had
seen too. Indeed, he had seen more than Walter had.
“Two o’ em, by gum!” he shouted. “Steady now, pard! ’Twon’t be
safe t’ try t’ land ’em in th’ canoe without a landin’ net. I’m goin’ t’
work in t’ thet bit o’ shingle over yonder. Jes’ yer keep ’em comin’ an’
don’t let up on ’em fer a minute.”
The guide was right. Both flies had been seized at once. By this time
Walter could occasionally see the two fish, and the sight brought his
heart into his throat. Could he save both? What a chance to score
for the Delawares! And what a record to send home to father! He
understood now why there had been no leaping; the fish had
checkmated each other.
As the canoe grated on the pebbles the guide leaped over, knee-
deep in the water. Walter stood up and gently led the fish toward the
waiting guide. So tired were they that they were almost passive,
their broad tails feebly winnowing as, getting the line in his left
hand, Big Jim drew them slowly to him. Gently he sank his right arm
in the water that no sudden move should startle the fish into a last
frantic struggle. Would he save them? Walter sat down weakly,
trembling with the strain and anxiety.

Slowly the guide’s big hand slipped up the length of the fish on the
dropper. The stout fingers locked in the gills, there was a deft throw
—Walter could never tell just how it was done—and both fish were
flapping on the shore. Jim threw himself upon them a second after,
for his quick eye had seen that the tail fly had torn out. When he
stood up he held out a fish in each hand, such fish! The young
angler could hardly believe the evidence of his own eyes.
“Smallest’ll weigh ’bout two an’ a half pounds, an’ t’other ’bout a
pound heftier,” said Jim, eyeing them critically. “Pard, thet’s goin’
some fer a beginner. Reckon yer must carry a rabbit’s foot in yer
pocket fer luck.”
Walter disclaimed any witch charms whatsoever as he produced the
neat little spring scales which had been a parting gift from his father.
These proved the accuracy of Jim’s guess, one being an ounce less
and the other an ounce and a half more than the weights he had
named. They were the true broad tails or speckled trout, commonly
called brook trout (Salvilinus fontinalis) than which no more beautiful
fish swims.
As he admired their exquisitely painted sides something very like
regret for a moment subdued the boy’s elation and pride, for he was
one of the true nature lovers, to whom the destruction of life must
ever bring a feeling of sadness.
As the guide shoved off Walter started to bend on a change of flies,
but to this Big Jim quickly put a stop.
“Pard,” said he, “no true sportsman will ever kill more’n he needs.
We’ve got enough—all we can use. The man who kills jes’ fer th’ fun
o’ killin’ ain’t nothin’ more’n a butcher. He’d better get a job in one o’
them big slaughter-houses. When I find I’m guidin’ fer one o’ thet
breed he most gen’rally don’t hev no luck.”
Walter felt the rebuke, but he was fair minded enough to appreciate
and not resent it. Nor did he ever forget it.

Back at camp Big Jim at once started preparations for dinner. Going
into the woods he cut a small log of hard wood about two feet long,
out of which he split a slab about three inches thick. One side of this
he rapidly smoothed. Under his direction Walter had, in the
meantime, built a fire of small pieces of hard wood. This was soon a
bed of glowing coals which would retain their heat for a long time, a
property which soft woods do not possess, as the guide took pains
to impress upon him. For this reason hardwood coals are always
preferable for cooking.
When the slab was smoothed to Jim’s satisfaction he propped it up
in front of the coals. Splitting the largest fish down the back its
entire length, taking care not to cut through the belly, he cleaned it
and wiped it dry. When the slab was hot he tacked the fish to it, skin
side down, and spread full width. Then the slab was once more
propped in front of the fire and three strips of bacon were hung
across the top so that the fat would try out and drip on the fish.
When it became necessary to reverse the ends of the slab so that
the fish would cook evenly the bacon was taken off and impaled on
the pointed end of a small stick, it becoming Walter’s duty to hold
this so that the drip would continue to baste the fish.
While Walter tended the fish the guide made a reflector according to
an idea Walter had given him. Lashing together two sticks in the
form of a T, one two and a half feet long and the other a foot long,
he tacked a piece of birch about two feet wide to the ends of the T,
thus forming a segment of a circle. The white side of the bark was
turned in. A flat piece of hemlock bark was fitted across the sticks
and a rough handle was lashed to the whole. The result was a crude
but effective reflector to concentrate the light from a flash in a given
direction.
By the time this was finished the fish was done to a turn. A dash of
salt and pepper was added, and it was ready to serve on the slab on
which it was cooked. Have you ever sat under the sweet smelling
hemlocks, careless of all else in the world save securing your full
share of the flaky pink flesh of a trout cooked in this way? If you

have then your mouth is watering this very minute. If you have not
—ah, why try to describe it? My advice to you is simply this: Follow
Walter’s example at the earliest opportunity.
Bread with butter and hot cocoa (Dr. Merriam tabooed coffee or tea
for growing boys) completed the menu. When the dinner was
finished, to the last shred of pink flesh clinging to crisp brown skin,
Walter felt that never before in all his life had he eaten half so
delicious a meal.
With dinner out of the way and camp made ready for the night they
prepared to put into execution the plan which was the real object of
the trip. There was no moon, for the sky was overcast, and the night
promised to be very dark. This was much to Jim’s liking, for the
blacker the night the less likelihood that the deer would see ought
but the baleful, fascinating glare of the jack-light.
It was nine o’clock when they left camp, Walter in the bow as usual,
but this time with nothing to occupy his attention but his camera and
the jack-light strapped on his hat. The reflector was within easy
reach of the guide, to whom Walter had given careful instructions in
its use. A flash, consisting of two No. 2 cartridges, had been
prepared and wires connected from a couple of electric batteries.
Jim had merely to press a button to fire the flash.
It was agreed that Walter should set his focus for one hundred feet
and that, should they be lucky enough to find the deer, the judging
of the distance and setting off of the flash should be left to the
guide.
It was weird, uncanny, that paddle down the lake, the black water
beneath them and a black formless void around and above them. A
dozen strokes from shore Walter felt as utterly lost so far as sense of
direction was concerned as if blindfolded. But not so Big Jim. He
sent the canoe forward as confidently as if in broad daylight. The
jack was lighted but not uncovered.

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Intellectual Property And Information Wealth Issues And Practices In The Digital Age Volume 4

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