Rich Fiscus
30 Jan 2009 11:31
It's no secret that certain elements in the US Federal Government would like to see all copyright infringement criminalized and the Department of Justice used as an enforcement agency for intellectual property owners. What gets less publicity is the work by the office of the US Trade Representative (USTR) to similarly effect the law in other countries. Earlier this week the USTR's office issued a press release declaring victory in one such case against China, but behind their celebration is actually a significant defeat.
Although the World Trade Organization (WTO) agreed with US claims that China isn't living up to their obligation to protect foreign copyrights under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The portion of the treaty in question requires that all participants at least criminalize willful commercial infringement of intellectual property.
Specifically, a WTO panel concluded that the US hadn't profided any real evidence since it was all in the form of newspaper clippings. According to the WTO report, "the Panel does not ascribe any weight to the evidence in the press articles and finds that, even if it did, the information that these press articles contain is inadequate to demonstrate what is typical or usual in China for the purposes of the relevant treaty obligation."
The report further admonished the US for substituting claims of bad behavior for evidence of specific wrong doing. The report says "A complaining party may not simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency. Nor may a complaining party simply allege facts without relating them to its legal arguments."
Ironically it was just last year that the USTR was declaring victory against the island nation of Antigua after that country was granted international permission to violate US intellectual property rights to the tune of $21 million. In that case the US argument was that moral considerations nullify a provision of a treaty which requires them to allow internet gambling operations based in Antigua to do business with American consumers.
There's no question that large scale commercial piracy occurs, or that much of it is based in Asia, and particularly China. At the same time it seems important that the US government be particularly careful about trying to make the sort of demands in other countries that would be rejected at home. Particularly when China, a country that like the US is unlikely to bow to international pressure, is involved.