Update WTO IPR and Market Access Case Against China, And What Has Antigua To Do With It?

On April 10 the US requested consultations for two, interrelated, WTO cases:

DS362 China – Measures affecting the protection and enforcement of intellectual property rights

DS363 China – Measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products

These cases are interrelated, because market access is a contributory factor to intellectual property infringement. The salient example is the limited number of movies that are annually allowed into the Chinese market. The number of foreign movies that can be shown in Chinese cinemas is limited to 20 movies per year. One can argue that this stimulated pirated DVDs to the point that only 7 per cent of the DVDs on the market are legitimate. Reuters, ‘Market access key to piracy fight’, The Age, December 8, 2006, available here.

What happened so far with the respective cases?

DS 362: The following countries joined the consultations: Japan (April 20, 2007), Canada and the European Communities (April 25, 2007), Mexico (April 26, 2007). Subsequently, China informed the DSB that it had accepted the requests of Canada, the European Communities, Japan and Mexico to join the consultations. October 7, 2007, Australian trade minister Warren Truss announced that Australia is going to participate as a third country in the dispute.

“Participation as a third party does not mean we are taking sides in the case,” Mr Truss said. “It does, however, allow us to register our views on the legal issues raised in the dispute.” Read more here.

September 25, the WTO decided to establish a panel to investigate the claim by the US that China enforces its IP insufficiently. The US and China had twenty days to agree on the panelists. This means that the parties should have agreed yesterday, read more here.

DS363: October 11, 2007, the US Trade Representative has requested the WTO to establish a dispute settlement panel. The US panel request will be considered by the Dispute Resolution Body at its next meeting which will be held October 22, 20007. Read more here.

DS 285 A seemingly unrelated case is the WTO case by Antigua and Barbuda case against the US, because of America’s prohibition to offer cross-border gambling and betting services to US citizens (DS285). Seemingly, because Mr Hartley Henderson of Majorwager.com writes:

“In fact many countries are closely monitoring this case to see if the United States is really committed to the WTO and is willing to abide by its rules. In particular, countries like China and a few in Africa are very interested in the outcome of this case given the pressure being exerted on them by the USTR to open up more of its industries. If the USTRs show that they consider the WTO to be a one-way street in favor of themselves, then naturally those industries will stay closed to American interests. The following few months will speak volumes about how serious the U.S. is in the WTO process. ” Read Mr Henderson’s article here.