Monday, January 26, 2009

US - China WTO Dispute Continues

The final panel report in the US - CHINA WTO dispute has been released, confirming mixed results in which both sides can claim victory. The IP-Kat has a playful score card on the outcome.

The USA will not likely be thrilled and possibly rather dismayed that the WTO panel ruled that "the United States has not established that the criminal thresholds are inconsistent with China's obligations under the first sentence of Article 61 of the TRIPS Agreement."

Both sides can appeal.

Meanwhile, the USA remains the most egregious copyright scofflaw in the WTO with its longstanding failure to pay for public performance of music in smaller establishments (the "Section 110" dispute). The US gets away with this by paying a truly token amount of compensation to get itself off the hook.

As I said almost two years ago in this space:
The most flagrant adjudicated flouter of international copyright law is the USA. The WTO has long ago finally concluded that the USA fails to provide royalties for performing rights in many instances as a result of s. 110 of its Copyright Act. This is the most serious copyright dispute to date in the WTO and the USA is clearly unwilling or unable to do anything about coming into compliance. It has bought its way out of this violation with a paltry payment fixed by arbitration of about Euro 1,219,900 per year - a fraction of what the royalties ought to be.
The late great Sir Hugh Laddie rarely missed an opportunity to point out that counterfeit and pirated products were readily available on the streets in New York and Washington. No need to travel to Beijing.

It will be very interesting to see how the Obama administration proceeds from here. Presumably, it will be aware of the adage about living in glass houses.


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