Sino-US intellectual property dispute: a new chapter in WTO history

Abstract

On 10 April 2007, the USA initiated two disputes against the People’s Republic of China (PRC) in the World Trade Organization. In one dispute (the ‘IPR Dispute’), the USA requested consultations with China concerning the protection and enforcement of IP rights in China. In another dispute (the ‘Market Access Dispute’), the USA requested consultations with China concerning certain restrictions on distribution of imported copyright works and certain restrictions on market access for foreign distributors of copyright works. The focus of this article is the IPR Dispute. In this dispute, the USA requests consultation on four issues: 1. the thresholds that must be met in order for certain acts of trade mark counterfeiting and copyright piracy to be subject to criminal procedures and penalties under PRC law; 2. the confiscation of infringing goods by Chinese customs authorities, and the disposal of such goods following removal of their infringing features; 3. the scope of coverage of criminal procedures and penalties for unauthorized reproduction or unauthorized distribution of copyright works; 4. the denial of copyright and related rights protection and enforcement to creative works of authorship, sound recordings, and performances that have not been authorized for publication or distribution within China. In this article, each IP-related complaint levelled by the USA is held up to scrutiny, examining it within the context of Chinese law and interpretational guidance. The authors then predict possible grounds upon which future complaints may be lodged.