US - China WTO Dispute Continues

The final panel report in the US - CHINA WTO dispute has been released, confirming mixed results in which both sides can claim victory. The IP-Kat has a playful score card on the outcome.

The USA will not likely be thrilled and possibly rather dismayed that the WTO panel ruled that "the United States has not established that the criminal thresholds are inconsistent with China's obligations under the first sentence of Article 61 of the TRIPS Agreement."

Both sides can appeal.

Meanwhile, the USA remains the most egregious copyright scofflaw in the WTO with its longstanding failure to pay for public performance of music in smaller establishments (the "Section 110" dispute). The US gets away with this by paying a truly token amount of compensation to get itself off the hook.

As I said almost two years ago in this space:

The most flagrant adjudicated flouter of international copyright law is the USA. The WTO has long ago finally concluded that the USA fails to provide royalties for performing rights in many instances as a result of s. 110 of its Copyright Act. This is the most serious copyright dispute to date in the WTO and the USA is clearly unwilling or unable to do anything about coming into compliance. It has bought its way out of this violation with a paltry payment fixed by arbitration of about Euro 1,219,900 per year - a fraction of what the royalties ought to be.

The late great Sir Hugh Laddie rarely missed an opportunity to point out that counterfeit and pirated products were readily available on the streets in New York and Washington. No need to travel to Beijing.

It will be very interesting to see how the Obama administration proceeds from here. Presumably, it will be aware of the adage about living in glass houses.

HK

Copyright as Olympic Censorship Tool - Updated

Slashdot has a story about how the IOC invoked the DMCA to take down a pro-Tibet video that presumably offended it by showing the famous five rings being used as handcuffs or otherwise. The IOC appears to be doing a great job of censoring protest that would offend the Chinese government.

Follow the link to the Vimeo site and watch while you can. Warning - the video shows bloody and maybe even dead bodies.

This is not copyright infringement by any stretch under American case law. YouTube caved and took the video down, even though it could have assumed a minuscule theoretical risk and ignored the clearly baseless and abusive DMCA take down notice. Needless to say, this is disappointing and doesn't augur well for free speech or a "do no evil" approach.

It's clearly unrealistic to expect the protesters to fight back to put the video up - since this could risk exposure to the Chinese authorities. Would a protester in China who wishes to protest the YouTube takedown, be rational in providing, as required, by the DMCA:

The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

I'm sure that the Chinese authorities would be quite interested in this information.

This is what the DMCA is all about. Bill C-61 is not quite as bad in this respect, as it is based upon notice and notice, rather than notice and takedown. This is one of the few positive aspects of Bill C-61. But, the sound recording and film folks may not be content to let it rest that way and may push for the "American way" if the Bill reaches Committee.

UPDATE AUGUST 18, 2008.

Apparently YouTube responded to copious criticism, including from your's truly, and questioned the IOC about this. The IOC relented and withdrew its takedown notice. This time.

But what about next time? The incident shows the potential for unchecked abuse of an American style notice and take down regime, which certain predictable American dominated trade associations will likely demand if the Canadian Bill C-61 moves forward as is.

HK