By Kevin E. Noonan --
Intellectual property rights (particularly Western intellectual property rights) were intended to receive improved protection under the Trade-related Aspects of Intellectual Property Rights (TRIPS) provisions of the General Agreement on Tariffs and Trade (GATT). The World Trade Organization (WTO) was to provide the forum for disputes arising under TRIPS. However, the anticipated benefits for Western IP rights holders have not materialized (see "The Law of Unintended Consequences Arises in Applying TRIPS to Patented Drug Protection in Developing Countries"; "Worldwide Drug Pricing Regime in Chaos"; "More on the Global Drug Patenting Crisis"). This outcome is due in large part to WTO member countries taking advantage of further treaty provisions intended to permit compulsory licenses in the face of extreme medical emergency being co-opted to more nationalistic demands (see "Thailand Continues Its Compulsory Licensing Practices").
So it is gratifying to learn that for other areas of IP protection (specifically copyright and trademark), the WTO is having a slightly better track record for protecting IP rights. Today, the Office of the U.S. Trade Representative, Acting Representative Peter Allgeier, announced that the WTO ruled in favor of the U.S. on its complaint, filed in April 2007, that aspects of Chinese trademark and copyright law were not in compliance with its TRIPS obligations. Specifically, the WTO panel found the following provisions of Chinese law to be deficient. Chinese copyright law was not in compliance with its TRIPS obligations because it "does not protect copyrighted works that do not meet . . . 'content review' standards." The WTO panel found this to be a "blanket denial of [copyright] protection" and in violation of Article 9.1 of TRIPS (which incorporates Article 5(1) of the Berne Convention for the Protection of Literary and Artistic Works). In addition, the WTO panel found these provisions of Chinese law to be inconsistent with the requirements of Article 41.1 of TRIPS (requiring enforcement procedures to be "effective" against copyright infringement).
Second, Chinese law provides that counterfeit or otherwise infringing goods seized by the government would "normally be auctioned subject only to the condition that the infringing trademark must be removed." As a result, the counterfeit goods are returned to the marketplace, something that the panel considered "could confuse consumers and harm the reputation of the legitimate product." Paradoxically, in the panel's view, this would "facilitate" rather than discourage "further acts of infringement." These provisions of Chinese law are inconsistent with Articles 46 and 59 of TRIPS, the panel opined.
Finally, Chinese law provides criminal penalties for counterfeiting and piracy, but only when the extent of these practices exceed specific thresholds (such as 500 copies of a pirated DVD or about $7,000 of counterfeit goods). Article 61 of TRIPS requires criminal penalties for counterfeiting and piracy to be available for "all 'commercial scale' copyright piracy and trademark counterfeiting." The U.S. complained that the Chinese thresholds were "so high as to be divorced from market realities." Tellingly, just prior to the U.S. filing its complaint, China had dropped its threshold for criminal sanctions from 1,000 infringing copies to 500 infringing copies. The panel stopped short of making a determination that these provisions were in violation of Article 61, saying that it would need additional evidence. The panel did state that determining what amounts to "commercial scale" of counterfeiting or piracy "must take into account the impact of technological developments" (such as the Internet), and that "commercial scale" of infringing activity depends on the product at issue (DVD's watched, software) "and the market in which it is sold."
Ambassador Allgeier called the decision "an important victory, because they confirm the importance of IPR [i.e., intellectual property rights] protection and enforcement, and will clarify key enforcement provisions of the TRIPS Agreement." He also pledged to "engage vigorously with China on appropriate corrective action to ensure U.S. rightsholders obtain the benefits of this decision."
Because these decisions are subject to appeal by either the U.S. or China, it is unclear if they will lead in any reasonable timeframe to changes in Chinese law, or how the WTO will react if China does not timely respond with changes to its law.
However, Why would the WTO appeals court try and justify the worlds biggest non market economy and its centralized planning entity the SASAC as a not a non market enity. When they where the one's who have centralized the worlds jobs and taxes along with 97% of the worlds resources to their non market activities. Specifically due to pin point placement of WTO and World Bank economic leadership of their MSS espionage agents. Which the MSS is now expanding their bases and trying to seek more espionage seats.
Rider I
http://rideriantieconomicwarfaretrisiii.blogspot.com/
Posted by: Rider I | July 07, 2011 at 01:23 PM