[A2k] Intellectual Property Watch: WTO Issues Final Decision on US-China Copyright Dispute

Thu Jan 29 14:41:13 2009

--
[ Picked text/plain from multipart/alternative ]
The issue is clearly one of voluntary compliance. Best interest of a nation=
. Whereas with mandatory penalty avoidance compliance the issue is what is =
best for the body politic.
If compliance with WTO rulings and or findings is not in the national best =
interest it will not be followed. Right now for larger economies of scale t=
he socio politico power of the WTO does not trump trading between superecon=
omic powers. This is largely because smaller emerging countries do not see =
it in their best interests to band together with similar others to effect b=
uying or trading balances of scale.
But such is the myopic vision of countries where today and tomorrows homela=
nd prices dictate remaining in power. Where hand to mouth immediate existen=
ce has priority over long range economic stability, policies will not be en=
abled that will enforce WTO priority=A0of that stability.
=A0

--- On Thu, 1/29/09, Sisule Musungu <sfmusungu@gmail.com> wrote:

From: Sisule Musungu <sfmusungu@gmail.com>
Subject: Re: [A2k] Intellectual Property Watch: WTO Issues Final Decision o=
n US-China Copyright Dispute
To: "Jeffrey A. Williams" <jwkckid1@ix.netcom.com>
Cc: "Dalindyebo Bafana Shabalala" <dshabalala@ciel.org>, "Thiru Balasubrama=
niam" <thiru@keionline.org>, "a2k discuss list" <a2k@lists.essential.org>, =
"Hugh Dierker" <hdierker2204@yahoo.com>
Date: Thursday, January 29, 2009, 3:18 AM

Jeffery, all
=A0
While there are many problems with the enforcement of panel and AB reports =
and there are many proposals in WTO on how to address this, I would argue t=
hat it is not correct to generalise that most WTO rulings are not binding. =
The enforceability of course depends on a range of no-legal factors: the ec=
onomic and trade power of the winning party, politics and other relationshi=
ps such as the debt question you point to, advocacy and other tactics by th=
e industry involved etc.
=A0
So, while China might have some leverage, WTO rulings clearly have binding =
force on the majority of the 150 plus members who do not have the economic,=
 trade, political, diplomatic or industry muscl to routinely ignore rulings=
. Even for China the US, armed with a positive ruling, still has significan=
t tools to push China towards compliance. However, as earlier intimated, an=
d as Dyebo and others have pointed out, what China needs to do to comply wi=
th the panel report is relatively minor compared to the original goal of th=
e US in filing the case.
Best,
SF.

2009/1/28 Jeffrey A. Williams <jwkckid1@ix.netcom.com>

Dalindyebo and all,

=A0Much better answer to my original question here, thank you. =A0I am
not sure that your answer is the right one, nor is one that China would
find to be considered very seriously given the position a the US'es single
biggest creditor. =A0If I were making that decision as a Chinese official,
I would not give the US much consideration unless some serious progress
to address that debt situation was forthcoming and demonstrated. =A0For
this amongst other reasons, why my take on most WTO rulings is less
than impressive, or for that matter relevant. =A0And they certainly have
shown not to be binding in any real sense.

Dalindyebo Bafana Shabalala wrote:

> Hi Jeffrey,
>
> Just to take your point about compliance. =A0The key point to take is tha=
t, in
> the WTO, failure to comply justifies retaliation. =A0Such retaliation may=
 be
> under the same agreement, but may also entail suspension under other cove=
red
> agreements under the WTO, given certain conditions. =A0CIEL has done some=
 work
> on cross-retaliation using IP (see
> http://ciel.org/Publications/TRIPS_IP_7May08.pdf) =A0but have not looked
> comprehensively at how it might work in the other direction. ICTSD has al=
so
> done work on this.
>
> The level of retaliation would have to be proportional to the level of ha=
rm
> shown by the US. =A0Thus if the US can show significant harm, measured in
> money terms, then they would be able to retaliate to that level. =A0This =
is
> where I actually think we would begin to have some fun with the statistic=
s
> that the US has been throwing around for years as they would actually hav=
e
> to stand up to the scrutiny of being tested in either an arbitration hear=
ing
> or a compliance panel.
>
> In any case, where the level of harm is substantial and the US can retali=
ate
> either within the TRIPS agreement or cross-retaliate to the GATT as well,
> the substantial trade relationship between the countries means that the U=
S
> has sufficient trade power to inflict damage, but only to the level of ha=
rm.
>
> So China will comply if it is feels sufficiently threatened by US
> retaliatory measures. =A0The effectiveness of those measures will depend =
on
> how much harm the US can prove. Both remain up in the air, for now. =A0I
> suspect, frankly, that the US will not be able to show a large enough amo=
unt
> of harm to allow it to retaliate at a level that would induce China to
> comply.
>
> Of course, China may also wish to go ahead and address the relatively min=
or
> points. =A0On censorship, it can always find another way to suppress mate=
rial.
> On the trademark stickers, it can easily remedy that activity.
>
> I hope this goes someway to address your question and intuition on
> compliance, although I think it might also be useful to consider that Chi=
na
> may actually have made some legitimate public policy choices about how ma=
ny
> resources to spend on IP enforcement versus other priorities and that the=
se
> are valid and recognized under TRIPS and other international law.
>
> Best,
> Dyebo
>
> Dalindyebo Shabalala
> Director, Intellectual Property and Sustainable Development Project
> Center for International Environmental Law
> 15 Rue des Savoises
> 1205 Geneva
> Switzerland
> Phone: +41 22 321 4774
> Fax: +41 22 789 0739
>
> -----Original Message-----
> From: a2k-admin@lists.essential.org [mailto:a2k-admin@lists.essential.org=
]
> On Behalf Of Jeffrey A. Williams
> Sent: Tuesday, January 27, 2009 4:38 AM
> To: Sisule Musungu
> Cc: Thiru Balasubramaniam; a2k discuss list; Hugh Dierker
> Subject: Re: [A2k] Intellectual Property Watch: WTO Issues Final Decision=
 on
> US-China Copyright Dispute
>
> Sisule and all,
>
> =A0 Thanks for you thoughtful response. =A0However your response did not
> answer my question nor address the contention I made. =A0Enforcment of
> WTO rules as most aware people know is dubious at best historically
> speaking.
>
> Sisule Musungu wrote:
>
> > The news is all about China losing. I think it is important to realise
> > that the US lost a number of the key arguments especially the
> > arguments that have been used recently as the basis for ACTA and
> > similar initiatives such as at the World Customs Organization and fr
> > listing countries in the special 301. An appeal might result into even
> > more useful jurisprudence which could be the basis of challenging
> > Special 301 in future. It is quite something that the Panel found that
> > Article 59 is inapplicable to goods destined for re-exportation which
> > puts into question the recent behaviour by the Dutch customs with
> > respect to the medicines from India destined to Brazil. The finding
> > with respect to criminal threshholds and the reasoning thereof is
> > important. Sisule F. MusunguIQsensato
> > 2009/1/26 Jeffrey A. Williams <jwkckid1@ix.netcom.com>
> >
> > =A0 =A0 =A0Thiru and all,
> >
> > =A0 =A0 =A0 Does the US or the WTO have the belief that China will
> > =A0 =A0 =A0abide by the WTO's demands or the US'es for that matter?
> > =A0 =A0 =A0This will be appealed by China. =A0Even if loosing again as
> > =A0 =A0 =A0a result of the Appeal, it is nearly a sure thing that China
> >
> > =A0 =A0 =A0will not comply.
> >
> > =A0 =A0 =A0Thiru Balasubramaniam wrote:
> >
> > =A0 =A0 =A0> http://ip-watch.org/weblog/wp-trackback.php?p=3D1400
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> Intellectual Property Watch
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> 26 January 2009
> > =A0 =A0 =A0> WTO Issues Final Decision On US-China Copyright Dispute
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> By Kaitlin Mara and William New
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> China has been found in violation of two of its
> > =A0 =A0 =A0responsibilities under
> > =A0 =A0 =A0> international rules on trade and intellectual property,
> > =A0 =A0 =A0and in partial
> > =A0 =A0 =A0> violation of one more, said a World Trade Organization
> > =A0 =A0 =A0panel report on
> > =A0 =A0 =A0> the US-China dispute over copyright and customs matters
> > =A0 =A0 =A0released Monday.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The panel has recommended that China alter its copyright
> > =A0 =A0 =A0law and
> > =A0 =A0 =A0> customs measures to be consistent with its obligations
> > =A0 =A0 =A0under the WTO
> > =A0 =A0 =A0> Trade-Related Aspects of Intellectual Property Rights
> > =A0 =A0 =A0(TRIPS) Agreement.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The final report finds China's copyright law inconsistent
> > =A0 =A0 =A0with Article
> > =A0 =A0 =A0> 9 of the TRIPS agreement, which incorporates the Berne
> > =A0 =A0 =A0Convention for
> > =A0 =A0 =A0> the Protection of Literary and Artistic Work. The panel
> > =A0 =A0 =A0stated that
> > =A0 =A0 =A0> China is inconsistent with Berne Convention Rule 5(1),
> > =A0 =A0 =A0which requires
> > =A0 =A0 =A0> that foreign owners of creative works receive the same
> > =A0 =A0 =A0protection as
> > =A0 =A0 =A0> domestic owners of similar material.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The panel decision also found China to be in violation of
> > =A0 =A0 =A0TRIPS
> > =A0 =A0 =A0> Article 41.1, which requires members to have available
> > =A0 =A0 =A0laws "so as to
> > =A0 =A0 =A0> permit effective action against any act of infringement of
> >
> > =A0 =A0 =A0> intellectual property rights covered by this agreement,"
> > =A0 =A0 =A0including
> > =A0 =A0 =A0> remedies which "constitute a deterrent to further
> > =A0 =A0 =A0infringements."
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> China was not in violation, the panel said, of the first
> > =A0 =A0 =A0sentence of
> > =A0 =A0 =A0> TRIPS Article 61, which requires "criminal procedures and
> > =A0 =A0 =A0penalties to
> > =A0 =A0 =A0> be applied at least in cases of wilful trademark
> > =A0 =A0 =A0counterfeiting or
> > =A0 =A0 =A0> copyright piracy on a commercial scale."
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> China's customs measures were found to be in partial
> > =A0 =A0 =A0violation of
> > =A0 =A0 =A0> TRIPS Article 46, in particular its fourth sentence which
> > =A0 =A0 =A0says in the
> > =A0 =A0 =A0> case of "counterfeit trademark goods, the simple removal
> > =A0 =A0 =A0of the
> > =A0 =A0 =A0> trademark unlawfully affixed shall not be sufficient,
> > =A0 =A0 =A0other than in
> > =A0 =A0 =A0> exceptional cases, to permit release of the goods into the
> > =A0 =A0 =A0channels of
> > =A0 =A0 =A0> commerce."
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> But the country was not found in violation of the first
> > =A0 =A0 =A0sentence of
> > =A0 =A0 =A0> Article 46, which grants customs authorities the right to
> > =A0 =A0 =A0get rid of
> > =A0 =A0 =A0> goods they have found to be infringing.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The panel's final report is available here.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The dispute started in April 2007, when the United States
> > =A0 =A0 =A0requested
> > =A0 =A0 =A0> consultations on four matters related to intellectual
> > =A0 =A0 =A0property on
> > =A0 =A0 =A0> which it said China's behaviour was in violation of its
> > =A0 =A0 =A0obligations.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> These matters included minimum thresholds on trademark
> > =A0 =A0 =A0counterfeiting
> > =A0 =A0 =A0> and copyright piracy before criminal penalties can be
> > =A0 =A0 =A0applied. The US
> > =A0 =A0 =A0> claim stated [pdf] that thresholds for criminal
> > =A0 =A0 =A0prosecution in China
> > =A0 =A0 =A0> are defined in such a way as to allow commercial-level
> > =A0 =A0 =A0trademark and
> > =A0 =A0 =A0> copyright violations to go unpunished. This, the US
> > =A0 =A0 =A0contended,
> > =A0 =A0 =A0> violates TRIPS Article 41.1 as well as Article 61. The US
> > =A0 =A0 =A0claimed
> > =A0 =A0 =A0> there is a lack of criminal procedures for people who
> > =A0 =A0 =A0illegally
> > =A0 =A0 =A0> reproduce copyright works.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The panel's final report left without decision claims
> > =A0 =A0 =A0related to the
> > =A0 =A0 =A0> second sentence of Article 61, listing potential
> > =A0 =A0 =A0punishments for the
> > =A0 =A0 =A0> criminal procedures, and parts of Article 41.1 related to
> > =A0 =A0 =A0criminal
> > =A0 =A0 =A0> thresholds, on grounds that earlier decisions render them
> > =A0 =A0 =A0irrelevant.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> Second, on the disposal of IP-infringing goods confiscated
> > =A0 =A0 =A0by customs
> > =A0 =A0 =A0> authorities, the US said that certain laws seem to allow
> > =A0 =A0 =A0infringing
> > =A0 =A0 =A0> goods to enter the market once their infringing features
> > =A0 =A0 =A0are removed,
> > =A0 =A0 =A0> which violates TRIPS articles 46 and 59, which
> > =A0 =A0 =A0respectively concern
> > =A0 =A0 =A0> deterrents to infringement by denying market access, and
> > =A0 =A0 =A0grant
> > =A0 =A0 =A0> authority to destroy goods under certain conditions.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The third concerns China's refusal to grant copyright and
> > =A0 =A0 =A0related
> > =A0 =A0 =A0> rights to creative works not authorised for publication or
> >
> > =A0 =A0 =A0> distribution in China (censored in the country), which the
> > =A0 =A0 =A0US said
> > =A0 =A0 =A0> violates a series of laws, including Article 5.1 of the
> > =A0 =A0 =A0Berne
> > =A0 =A0 =A0> Convention, which mandates that foreign authors be given
> > =A0 =A0 =A0the same
> > =A0 =A0 =A0> protection as domestic.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> US Vows Enforcement
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> The US Trade Representative's office was quick to claim
> > =A0 =A0 =A0victory in the
> > =A0 =A0 =A0> case. Acting USTR Peter Allgeier said in a statement:
> > =A0 =A0 =A0"These findings
> > =A0 =A0 =A0> are an important victory, because they confirm the
> > =A0 =A0 =A0importance of IPR
> > =A0 =A0 =A0> protection and enforcement, and clarify key enforcement
> > =A0 =A0 =A0provisions of
> > =A0 =A0 =A0> the TRIPS Agreement."
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> "Having achieved this significant legal ruling, we will
> > =A0 =A0 =A0engage
> > =A0 =A0 =A0> vigorously with China on appropriate corrective actions to
> > =A0 =A0 =A0ensure that
> > =A0 =A0 =A0> US rights holders obtain the benefits of this decision,"
> > =A0 =A0 =A0he added.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> Chinese officials could not be reached for comment at
> > =A0 =A0 =A0press time. Both
> > =A0 =A0 =A0> sides have the right to appeal.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> Intellectual Property Watch will seek to provide a more
> > =A0 =A0 =A0in-depth
> > =A0 =A0 =A0> analysis of this dispute in the near future.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> Kaitlin Mara may be reached at kmara@ip-watch.ch.
> > =A0 =A0 =A0>
> > =A0 =A0 =A0>
> > =A0 =A0 =A0------------------------------------------------------------
> >
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> Thiru Balasubramaniam
> > =A0 =A0 =A0> Geneva Representative
> > =A0 =A0 =A0> Knowledge Ecology International (KEI)
> > =A0 =A0 =A0> thiru@keionline.org
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> Tel: +41 22 791 6727
> > =A0 =A0 =A0> Mobile: +41 76 508 0997
> > =A0 =A0 =A0>
> > =A0 =A0 =A0> _______________________________________________
> > =A0 =A0 =A0> A2k mailing list
> > =A0 =A0 =A0> A2k@lists.essential.org
> > =A0 =A0 =A0> http://lists.essential.org/mailman/listinfo/a2k
> >
> > =A0 =A0 =A0Regards,
> >
> > =A0 =A0 =A0Spokesman for INEGroup LLA. - (Over 284k
> > =A0 =A0 =A0members/stakeholders strong!)
> > =A0 =A0 =A0"Obedience of the law is the greatest freedom" -
> > =A0 =A0 =A0 =A0Abraham Lincoln
> > =A0 =A0 =A0"YES WE CAN!" =A0Barack ( Berry ) Obama
> >
> > =A0 =A0 =A0"Credit should go with the performance of duty and not with
> > =A0 =A0 =A0what is
> > =A0 =A0 =A0very often the accident of glory" - Theodore Roosevelt
> >
> > =A0 =A0 =A0"If the probability be called P; the injury, L; and the
> > =A0 =A0 =A0burden, B;
> > =A0 =A0 =A0liability depends upon whether B is less than L multiplied
> > =A0 =A0 =A0by
> > =A0 =A0 =A0P: i.e., whether B is less than PL."
> > =A0 =A0 =A0United States v. Carroll Towing =A0(159 F.2d 169 [2d Cir.
> > =A0 =A0 =A01947]
> > =A0 =A0 =A0=3D=3D=3D=3D=3D
> > =A0 =A0 =A0=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
> > =A0 =A0 =A0Updated 1/26/04
> > =A0 =A0 =A0CSO/DIR. Internet Network Eng. SR. Eng. Network data
> > =A0 =A0 =A0security IDNS.
> > =A0 =A0 =A0div. of Information Network Eng. =A0INEG. INC.
> > =A0 =A0 =A0ABA member in good standing member ID 01257402 E-Mail
> > =A0 =A0 =A0jwkckid1@ix.netcom.com
> > =A0 =A0 =A0My Phone: 214-244-4827
> >
> > =A0 =A0 =A0_______________________________________________
> > =A0 =A0 =A0A2k mailing list
> > =A0 =A0 =A0A2k@lists.essential.org
> > =A0 =A0 =A0http://lists.essential.org/mailman/listinfo/a2k
> >
> Regards,
>
> Spokesman for INEGroup LLA. - (Over 284k members/stakeholders strong!)
> "Obedience of the law is the greatest freedom" -
> =A0 =A0Abraham Lincoln
> "YES WE CAN!" =A0Barack ( Berry ) Obama
>
> "Credit should go with the performance of duty and not with what is
> very often the accident of glory" - Theodore Roosevelt
>
> "If the probability be called P; the injury, L; and the burden, B;
> liability depends upon whether B is less than L multiplied by
> P: i.e., whether B is less than PL."
> United States v. Carroll Towing =A0(159 F.2d 169 [2d Cir. 1947]
> =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
> Updated 1/26/04
> CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
> div. of Information Network Eng. =A0INEG. INC.
> ABA member in good standing member ID 01257402 E-Mail
> jwkckid1@ix.netcom.com
> My Phone: 214-244-4827
>
> _______________________________________________
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>
> ______________________________________________________________________
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> ______________________________________________________________________

Regards,

Spokesman for INEGroup LLA. - (Over 284k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
=A0 Abraham Lincoln
"YES WE CAN!" =A0Barack ( Berry ) Obama

"Credit should go with the performance of duty and not with what is
very often the accident of glory" - Theodore Roosevelt

"If the probability be called P; the injury, L; and the burden, B;
liability depends upon whether B is less than L multiplied by
P: i.e., whether B is less than PL."
United States v. Carroll Towing =A0(159 F.2d 169 [2d Cir. 1947]
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
Updated 1/26/04
CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS.
div. of Information Network Eng. =A0INEG. INC.
ABA member in good standing member ID 01257402 E-Mail
jwkckid1@ix.netcom.com
My Phone: 214-244-4827