Presentation by: Nicholas Jackson Nozim Ishankulov Roberto Gonzalez United States - China Measures Affecting the Protection and Enforcement of Intellectual Property Rights Presentation by: Nicholas Jackson Nozim Ishankulov Roberto Gonzalez

Agenda Context Timeline WTO Issue Main Party’s Position Contested Issues (Berne and TRIPS) Decision and Recommendations Implementation

Context China enters the WTO in 2001 Chinese Copyright Laws were flawed United States engaged in unsuccessful bilateral negotiations United States Trade Representative announces WTO cases No prior proceedings

Timeline April 2007 August 2007 September 2007 January 2009 March 2009

The WTO Issue The United States request consultations on: Thresholds for certain acts of trademark counterfeiting and copyright piracy Goods that infringe intellectual property rights that are confiscated by Chinese Customs authorities Scope of coverage of criminal procedures Denial of Copyright and related rights protection

United State’s Position The United States requested that the panel find: China’s IPR thresholds inconsistent with the TRIPS Agreement Chinese Customs authorities lack the authority to order destruction or disposal of infringing goods China’s Copyright laws are inconsistent with the TRIPS agreement

China’s Response Thresholds for criminal procedures and penalties A parallel enforcement system that subjects all infringements to enforcement. Disposal of infringing goods The Chinese Customs authorities have wide discretion to dispose infringing goods. Copyright protection for censored works The Berne Convention did not affect a country's sovereign right.

Contested Issue – Foreign Law China’s Copyright Law and the Customs measures allegedly violated the TRIPS Agreement and the Berne Convention.

Berne Convention for the Protection of Literary and Artistic Works (1886) Works originating in one of the member state (United States) must be given the same protection in each of the other member states (China).

TRIPS Agreement Came into effect January 1, 1995 Provides each member with a minimum standard of protection in regards to intellectual property rights China interpreted the TRIPS Agreement in a way which did not fully cover certain sections of the TRIPS Agreement

WTO Agreement and Provisions TRIPS Article 61 Article 59 Articles 9.1 and 41.1

Decisions and Recommendations The Panel found that: China’s criminal measures of copyright and trademark infringement was found to be wanting China’s Copyright Laws and Customs measures nullified the United State’s benefits given under the TRIPS Agreement

Decisions and Recommendations Chinese custom measures were found to be inconsistent with Article 59, via Article 46, but the US did not provide the evidence to show the Chinese were inconsistent with their obligations of Article 61 China’s Copyright Law did not fully cover China’s obligations to the Berne Convention, specifically Article 5(1)

Implementation China agreed to implement the DSB recommendations China and the US agreed to a timeframe as to when the recommendations would be put in place March 17, 2010, the Chinese amended their Regulations for Customs Protection of Intellectual Property to reach compliance No sanctions were brought up

In Our Opinion Adoption of recommendations Sets precedence Amigable trade relations

Questions