Tuesday, November 21, 2006

James Paradise: WTO Case Will Not Start Before North Korean Nuclear Threat Has Ended

James F. Paradise wrote another thought provoking article on AsiaMedia of the UCLA Asia Institute.

The innovation of TRIPS compared to WIPO's conventions (Berne and Paris) is that disputes about enforcement can be dealt with in a binding manner by a panel of the WTO dispute resolution body. In other words WTO's TRIPS is WIPO with teeth (paraphrasing professor Hugenholtz of IViR).

However, the downside of TRIPS is that it is an integral part of WTO, which results in a hybrid treaty: the protection and enforcement of intellectual property law can get entangled with trade interests. Trade tariffs can be traded off for the protection and enforcement of intellectual property and vice versa. This might not always be in the best interest of IPRs.

Paradise points out that geo-political interests such as the North Korean nuclear threat can take priority over trade interests, including intellectual property:

"Recently there has been speculation that the United States, together with the European Union, Japan and Canada, would bring a complaint against China at the WTO because of inadequate enforcement of intellectual property rights. But it appears now that action of that sort -- should it occur -- will not happen immediately, possibly because the United States needs to maintain China's support in dealing with the North Korean nuclear problem. In September, the United States, the EU and Canada did request that a dispute settlement panel examine their complaint that Chinese tariffs on imported auto parts were discriminatory, the first time a dispute with China had risen to this level in the WTO."

Paradise points out a trend in the business community to cope with the rampant infringement of intellectual property proactively by changing their business strategy:

""We need more flexible business models," said George M. Borkowski at a panel primarily focused on copyright at the Los Angeles Asia Pacific Entertainment and Media (APEM) Summit 2006 last week. Borkowski, a partner of the law firm Mitchell Silberberg & Knupp, added that there is not much agreement within the industry itself about how to proceed."

Is this defeatism? I don't think so. As a company you should both try to prevent IPR infringements, but if they do, you should be prepared to protect and enforce your IPRs ferociously.

Read Paradise's article here.

Paradise wrote earlier an excellent review of Mertha's book'The Politics of Piracy: Intellectual Property In Contemporary China', read more here.

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