The Effects Of Wto Case Ds362 On Audiovisual Media Piracy In China
Audiovisual media piracy is a large industry in China. DVD’s and VCD’s contain‐ ing pirated versions of Chinese and foreign films or television series are easily found in China’s major cities. Even the new Blu‐Ray discs are already being pi‐ rated1. The major American film studios, united in industry bodies such as the Motion Picture Association of America, perceive this as damaging to their eco‐ nomic interest2. Chinese piracy levels have persistently been very high, leading to disputes in the early ‘90s. After China’s accession to the WTO, pressure from industry associa‐ tions remained on the United States Trade Representative (USTR) to take ac‐tion3. Accordingly, and although commentators argued against IPR‐related WTO action4, a request for consultations for a case concerning IPR was filed with the WTO in April 2007: DS362: China – Measures Affecting the Protection and En‐ forcement of Intellectual Property Rights5.
Few Lines Short of 1080p", (Audioholics, 2008, available at: http://www.audioholics.com/news/industrynews/bluraypirates)[Accessed at 20 January 2009]. 2 MPAA, AntiPiracy Fact Sheet, AsiaPacific Region (2008). 3 For a detailed analysis of the relation between special interest groups and USTR policy in intellectual property matters related to China, see A. Mertha, The Politics of Piracy: Intellectual Property in Contemporary China, (2005, Cornell), pp. 35 – 76. 4 For example: P.K. Yu, "Three Questions That Will Make You Rethink the U.S.‐ China Intellectual Property Debate", (2008) 7 The John Marshall Review of Intellectual Property Law 412. 5 An overview of the case and the related documents can be found on "Dispute Settlement: Dispute DS362", (WTO, 2009, available at: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds362_e.htm)[Accessed at 27 January 2009] (hereinafter abbreviated as China – Intellectual Property Rights)
1 Although the quality of these discs is lacking, W. Robson, "Blu‐ray Pirates: A
Electronic copy available at: http://ssrn.com/abstract=1434914
Consultations did not lead to a solution, so the case proceeded to the panel stage, in accordance with Art. 6 of the WTO Dispute Settlement Understanding6. The US proffered claims against China concerning criminal prosecution thresholds in copyright and trademark matters; disposal of counterfeit goods by Customs and denial of copyright to certain works by the Chinese Copyright Law7. A last, minor claim was dropped in the panel request. On 26 January 2009, the Panel Report was made public. Neither party appealed, which was consequently adopted by the DSB on 21 March 2009. China accepted the finding, and negotiated with the U.S. to implement them before March 2010. This case’s outcome is relevant in different areas. It was the first case concerning intellectual property protection between a developed and a developing country, and will influence future developments in this area. It also provides the United States and China with a better view of each other’s legal reasoning and the intri‐cacies of WTO litigation in matters of intellectual property protection. However, WTO cases are initiated because of very specific problems the com‐ plainant would like to have addressed, usually because they create economic damage. To evaluate China – Intellectual Property Rights, the influence of the de‐cision on the problem that led to its filing must be analyzed. Therefore, in this article, I will evaluate the effects of the outcome of this case on media copyright piracy in China, but not the trademark side of the case. Hence, I will not discuss the second claim regarding Customs measures. First, I will provide some back‐ ground into the origins of this case. Second, I will look into the argumentation of ...
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