[A2k] Antigua Sun on WTO dispute settlement case, Bern Convention and cross-retaliation

[thiru@keionline.org]

Antigua Sun 16/1/08

An international expert on intellectual property, Jorgen Blomqvist, has
warned that Antigua and Barbuda will be in contravention of a major
international treaty if it moves ahead with plans to use the suspension of
intellectual property rights as a means of imposing trade sanctions on the
US.

Blomqvist is the director of the Copyright Law Division of the
Geneva-based World Intellectual Property Organization (WIPO), a
specialised agency of the United Nations. In an interview with the Antigua
Sun, Blomqvist said that as a signatory to the Berne Convention for the
Protection of Literary and Artistic Works, Antigua and Barbuda would be
obligated to protect most intellectual property rights, even if the World
Trade Organisation (WTO) rules otherwise.

A WTO arbitration panel has ruled that Antigua and Barbuda could apply to
recoup US$21 million per year in compensation through means including the
suspension of US intellectual property trade protections in Antigua and
Barbuda. This is governed at the WTO by the Agreement on Trade-Related
Aspects of Intellectual Property Rights, also known as the TRIPS
Agreement.

Blomqvist questioned the presumption that the WTO ruling would legitimise
the suspension of US intellectual property protections.

He pointed out that there are several treaties dealing with intellectual
property and that while a suspension of intellectual property protections
might be permitted in the WTO, Antigua and Barbuda and the US are both
parties to the Bern Convention, which he described as a well established
international convention.

=93The TRIPS Agreement says that contracting parties shall comply with the
Bern Convention, with one exception, but the bulk of the economic
protection under the Bern Convention is referred to in the TRIPS
Agreement,=94 Blomqvist explained. =93Since both parties are parties to the
Bern Convention, if they, under some other convention, start to not grant
protections to each other, then they will infringe the Bern Convention.=94

Antigua and Barbuda signed on to the Bern Convention on 17 March 2000,
while the USbecame a party to the Convention in March 1989.

=93The fact that under one treaty you can make such sanctions does not
relieve a country from responsibilities under other treaties,=94 Blomqvist
told the SUN. He noted, however, that the Bern Convention does not have
the dispute resolution system that exists in the TRIPS Agreement.

This means that the mechanisms for a country to react and seek sanctions
that exist at the WTO do not exist for a violation of the Bern Convention.

=93If a country under the Bern Convention is dissatisfied with the way that
it is being protected, the reaction possibility it has is basically that
its local ambassador knocks on the door of the minister in charge,=94
Blomqvist explained.

He made it clear that the Convention is, nevertheless, considered a legal
obligation on signatories, even if the means of enforcement are limited.

The argument that Antigua and Barbuda would be in violation of its Bern
Convention obligations if the country fulfils its threat to use
intellectual property rights as a vehicle for the Internet gambling trade
sanctions against the US was put to Minister of Finance and the Economy
Dr. Errol Cort this week.

Dr. Cort said that he did not accept this argument and that he intends to
address this issue fully today.