Saturday, June 19, 2010

With An Eye On ACTA: China Champion of TRIPs Freedoms and Flexibilities

During the TRIPs Council, which was held June 8 and 9, China told delegates it was concerned about developed countries that want provisions (for example the lower thresholds for criminal enforcement of counterfeiting and piracy) that go beyong TRIPs. This could lead according to China, to barriers to legitimate trade (when customs can seizure goods too easily) and restrict the flexibilities of TRIPs. And each country should be able to make decisions about the allocation of resources to enforce IPRs.

China points out all the provisions of TRIPs that makes their dramatic low IPR enforcement level arguably not noncompliant to TRIPs.

- Article 7 and 8 TRIPs: which gives a country leeway to not enforce in case of a public health or security emergency.
- Article 41(5) TRIPs: I called this in my master's thesis the Achilles heel of TRIPs: because it says that a country has the souvereignty to decide how much of its resources it would allocate to TRIPs.
The DSU panel at the WTO who decided over DS663 'China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights' made it clear that China's level of numerical thresholds of criminal enforcement was not noncompliant to TRIPs.

Obviously China is not falling for ACTA's charms of the promise of high enforcement levels. And maybe even some obligations of measures. One could say that ACTA is demanding a monotonous relationship with right holders. China rather wants to continue its marriage of convenience with TRIPs because it gives it only the obligation to legislate, not a single obligation of measure, let alone obligation of result. TRIPs allows room for a romance with other goals than only enforcement on behalf of right holders: technology transfer, public dissemination of information, developing regions, indigenous innovation.

Read Catherine Saez' article about the TRIPs Council meeting for Intellectual Property Watch here.

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