[A2k] Bridges Weekly: As Antigua considers cross-retaliation against US, WIPO official creates stir

[thiru@keionline.org]

http://www.ictsd.org/weekly/08-01-23/story2.htm

Volume 12 	Number 2 	23 January 2008


AS ANTIGUA CONSIDERS CROSS-RETALIATION AGAINST US, WIPO OFFICIAL CREATES STIR

In a rare move, the WTO last month awarded Antigua and Barbuda the right
to place sanctions on US patents, copyrights, and other intellectual
property, as compensation for being unduly shut out of the US' online
gambling market.

However, little precedent exists for precisely how the tiny Caribbean
island nation might go about suspending standard WTO protections for US
intellectual property, even though it has been authorised to levy annual
penalties worth $21 million on both IP and services companies (see BRIDGES
Weekly, 16 January 2008). No government has ever actually suspended
intellectual property rights as a result of a WTO dispute. Ecuador, the
only other country to receive permission to do so, never went through with
suspending EU patents and copyrights.

Lawyers have pointed to some potential complications with implementing
retaliatory sanctions against intellectual property. Quantifying damages,
for instance, could prove difficult if the US and Antigua disagree on the
financial value of an overridden patent or denied trademark.

A senior official of the World Intellectual Property Organization last
week created a stir by suggesting that suspending certain intellectual
property protections could leave the Antiguan government in breach of
international treaty obligations other than the WTO.

In an interview with the Antigua Sun, Jorgen Blomqvist, the director of
WIPO's copyright law division, pointed specifically to the Berne
Convention for the Protection of Literary and Artistic Works, an
international copyright agreement ratified by both the US and Antigua. The
Berne Convention is one of several intellectual property treaties
administered by WIPO, which is based in Geneva.

"The [WTO] TRIPS Agreement says that contracting parties shall comply with
the Berne Convention, with one exception, but the bulk of the economic
protection under the Berne Convention is referred to in the TRIPS
Agreement," Blomqvist said, reports the Antigua Sun.

"Since both parties are parties to the Berne Convention, if they, under
some other convention, start to not grant protections to each other, then
they will infringe the Berne Convention," Blomqvist added. "The fact that
under one treaty you can make such sanctions does not relieve a country
from responsibilities under other treaties."

Frederick Abbott, a professor of international law at Florida State
University, argued that "there is reason to doubt the validity of Mr.
Blomqvist's opinion" on the relationship between WTO rules and the Berne
convention.

Participants in WTO disputes "often have supplementary treaty obligations
that overlap with WTO commitments, and the theory that a Member is legally
precluded from exercising rights under the Dispute Settlement
Understanding because of those supplementary overlapping treaties would
undermine the effective operation of WTO dispute settlement," Abbott said.

Both Abbott and Sisule Musungu, an intellectual property expert affiliated
with development think tank IQsensato and Yale Law School, suggested that
Blomqvist's interpretations of the Berne Convention were of questionable
legal merit, and worse, risked being construed as an official view from
the WIPO secretariat.

WIPO distances itself from remarks

When contacted, a WIPO spokesperson told Bridges that Blomqvist's comments
were personal views. As a matter of policy, she said, WIPO does not
comment on rulings or decisions made by other organisations. She added
that the Antigua Sun report mischaracterised Blomqvist's remarks insofar
as they were general in nature and did not pertain to any specific
conflicts at the WTO or elsewhere.

Regardless, Abbott emphasised that Antigua would not be failing to fulfill
its obligations under the Berne Convention for sanctions imposed under the
WTO ruling. "Antigua and the United States are each party to the WTO
Agreement and the Berne Convention," he said. Both have agreed to abide by
WTO dispute settlement decisions.

"The WTO Dispute Settlement Body in this proceeding has authorised Antigua
to withdraw concessions under the TRIPS Agreement, including corresponding
obligations under the Berne Convention, and the United States is legally
bound to accept that authorization," he added.

The obligation to accept the WTO decision means that "the rights of the
United States under the Berne Convention are not being infringed because
the United States has legally accepted the withdrawal of Berne concessions
(or obligations) by Antigua," the law professor said. It also left
Washington "legally estopped [i.e., prevented] from asserting a breach of
the Berne Convention by Antigua."

"Mr. Blomqvist's assertion of a hypothetical violation of the terms of the
Berne Convention is the assertion of a legally inconsequential abstraction
because there is no party whose rights would be infringed," Abbott
concluded.

Errol Cort, Antigua's minister of finance and the economy, this week said
that he would have "a big difficulty" accepting Blomqvist's suggestion
that the Caribbean island nation would remain fully bound by the
strictures of the Berne Convention. "If that is so," he told the Antigua
Sun, "it puts a nonsense to the whole World Trade Organization and the
rulings and sanctions. It just brings the whole thing into disrepute. So I
don't accept that."

Antigua was authorized to 'cross-retaliate' against intellectual property
after successfully arguing that confining sanctions to US services
companies, or additional duties on US goods - the most common form of WTO
retaliation - would hurt its own tiny economy and have virtually no effect
on the US.

Some legal scholars argue that such cross-retaliation may be one avenue
for economies too small to threaten their trading partners with
retaliatory tariffs to benefit from WTO dispute settlement.

ICTSD reporting; "Cort dismisses concerns of property rights proponents,"
ANTIGUA SUN, 22 January 2008; "Antigua may violate int'l treaty: Expert,"
ANTIGUA SUN, 16 January 2008; "In Trade Ruling, Antigua Wins a Right to
Piracy," NEW YORK TIMES, 22 December 2007.