[Federal Register: April 23, 2007 (Volume 72, Number 77)]
[Notices]
[Page 20144-20146]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ap07-80]
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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
[Docket No. WTO/DS-362]
WTO Dispute Settlement Proceeding Regarding China--Measures
Affecting the Protection and Enforcement of Intellectual Property
Rights
AGENCY: Office of the United States Trade Representative.
ACTION: Notice; request for comments.
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SUMMARY: The Office of the United States Trade Representative (USTR) is
providing notice that on April 10, 2007, in accordance with the
Marrakesh Agreement Establishing the World Trade Organization (WTO
Agreement), the United States requested consultations with respect to
certain measures pertaining to the protection and enforcement of
intellectual property rights in China. That request may be found at
http://www.wto.org contained in a document designated as WT/DS362/1.
USTR invites written comments from the public concerning the issues
raised in this dispute.
DATES: Although USTR will accept any comments received during the
course of the consultations, comments should be submitted on or before
May 7, 2007 to be assured of timely consideration by USTR.
ADDRESSES: Comments should be submitted (i) Electronically, to
FR0707@ustr.eop.gov, with ``China IPR Protection and Enforcement
(DS362)'' in the subject line, or (ii) by fax, to Sandy McKinzy at
(202) 395-3640, with a confirmation copy sent electronically to the
electronic mail address above, in accordance with the requirements for
submission set out below.
FOR FURTHER INFORMATION CONTACT: Steven F. Fabry, Associate General
Counsel, Office of the United States Trade Representative, 600 17th
Street, NW., Washington, DC, (202) 395-3150.
SUPPLEMENTARY INFORMATION: Section 127(b) of the Uruguay Round
Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires that notice and
opportunity for comment be provided after the United States submits or
receives a request for the establishment of a WTO dispute settlement
panel. In an effort to provide additional opportunity for comment, USTR
is providing notice that consultations have been requested pursuant to
the WTO Understanding on Rules and Procedures Governing the Settlement
of Disputes (``DSU''). If such consultations should fail to resolve the
matter and a dispute settlement panel is established pursuant to the
DSU, such panel, which would
[[Page 20145]]
hold its meetings in Geneva, Switzerland, would be expected to issue a
report on its findings and recommendations within nine months after it
is established.
Major Issues Raised by the United States
On April 10, 2007, the United States requested consultations with
China with respect to certain measures pertaining to the protection and
enforcement of intellectual property rights in China.
The first matter on which the United States has requested
consultations concerns the thresholds that must be met in order for
certain acts of trademark counterfeiting and copyright piracy to be
subject to criminal procedures and penalties. In this regard, the
measures at issue include the following, as well as any amendments and
related or implementing measures: the Criminal Law of the People's
Republic of China, in particular Articles 213, 214, 215, 217, 218, and
220; and two interpretations by the Supreme People's Court and the
Supreme People's Procuratorate on several issues of concrete
application of law in handling criminal cases of infringing
intellectual property (one adopted on November 2, 2004, and the other
adopted on April 4, 2007). It appears that, because of these measures,
certain acts of trademark counterfeiting and copyright piracy occurring
on a commercial scale in China are not subject to criminal procedures
and penalties in China. These measure appear to USTR to be inconsistent
with China's obligations under Articles 41.1 and 61 of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (``TRIPS
Agreement'').
The second matter on which the United States has requested
consultations concerns goods that infringe intellectual property rights
that are confiscated by Chinese customs authorities, in particular the
disposal of such goods following removal of their infringing features.
In this regard, the measures at issue include the following, as well as
any amendments and related or implementing measures: the Regulations of
the People's Republic of China for Customs Protection of Intellectual
Property Rights, in particular Chapter 4 thereof, and the Implementing
Measures of Customs of the People's Republic of China for the
Regulations of the People's Republic of China on Customs Protection of
Intellectual Property Rights, in particular Chapter 5 thereof. It
appears that, because of these measures, the customs authorities often
appear to be required to give priority to options for disposal of goods
that infringe intellectual property rights that would allow such goods
to enter the channels of commerce (for instance, through auctioning the
goods after removing their infringing features). The requirement that
infringing goods be released into the channels of commerce under the
circumstances set forth in the measures at issue appears to USTR to be
inconsistent with China's obligations under Articles 46 and 59 of the
TRIPS Agreement.
The third matter on which the United States has requested
consultations concerns 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. For example, it appears that
works that are required to undergo censorship review (or other forms of
pre-publication or pre-distribution review) before entering the Chinese
market are not protected by copyright before the review is complete and
publication and distribution within China has been authorized. In this
regard, the measures at issue include the following, as well as any
amendments and related or implementing measures:
The Copyright Law, in particular Article 4;
The Criminal Law, the Regulations on the Administration of
Publishing Industry, the Regulations on the Administration of
Broadcasting, the Regulations on the Administration of Audiovisual
Products, the Regulations on the Administration of films, and the
Regulations on the Administration of Telecommunication;
The Administrative Regulations on Audiovisual Products;
The Administrative Regulation on Publishing;
The Administrative Regulations on Electronic Publications;
The Measures for the Administration of Import of Audio and
Video Products;
The Procedures for Examination and Approval for Publishing
Finished Electronic Publication Items Licensed by a Foreign Copyright
Owner;
The Procedures for Examination and Approval of Importation
of Finished Electronic Publication Items by Electronic Publication
Importation Entities;
The Procedures for Recording of Imported Publications;
The Interim Regulations on Internet Culture
Administration; and
The Several Opinions on the Development and Regulation of
Network Music.
It appears that, because of the Copyright Law, authors of works
whose publication or distribution has not been authorized (and whose
publication or distribution is therefore prohibited) appear not to
enjoy the minimum standards of protection specially granted by the
Berne Convention for the Protection of Literary and Artistic Works
(1971) (the ``Berne Convention'') in respect of those works (and may
never enjoy such protection if the work is not authorized, or is not
authorized for distribution or publication in the form as submitted for
review). In addition, the rights of authors of works whose publication
or distribution is required to undergo pre-publication or pre-
distribution review appear to be subject to the formality of successful
conclusion of such review. The foregoing appears to USTR to be
inconsistent with China's obligations under Articles 9.1 and 41.1 of
the TRIPS Agreement. Furthermore, to the extent that the Copyright Law
also denies the protection of certain rights to performers and
producers of sound recordings during the period of any pre-publication
or pre-distribution prohibition, the Copyright Law appears to be
inconsistent with China's obligations under Articles 14 and 41.1 of the
TRIPS Agreement.
In addition, it appears that the measures at issue provide
different pre-distribution and pre-authorization review processes for
Chinese nationals' works, performances (or their fixations) and sound
recordings than for foreign nationals' works, performances (or their
fixations) and sound recordings. To the extent that these different
processes, taken together with Article 4 of the Copyright Law, result
in earlier or otherwise more favorable protection or enforcement of
copyright or related rights for Chinese authors' works, Chinese
performers' performances (or their fixations) and Chinese producers'
sound recordings than for foreign authors' works, foreign performers'
performances (or their fixations) and foreign producers' sound
recordings, the measures at issue appear to be inconsistent with
China's obligations under TRIPS Agreement Articles 3.1, 9.1 and 41.1.
The fourth matter on which the United States has requested
consultations concerns the scope of coverage of criminal procedures and
penalties for unauthorized reproduction or unauthorized distribution of
copyrighted works. In particular, it appears that unauthorized
reproduction of copyrighted works by itself--that is, unauthorized
reproduction that is not accompanied by unauthorized
[[Page 20146]]
distribution--may not be subject to criminal procedures and penalties.
Likewise, it appears that unauthorized distribution of copyrighted
works by itself--that is, unauthorized distribution that is not
accompanied by unauthorized reproduction--may not be subject to
criminal procedures and penalties. In this regard, the measures at
issue include the Criminal Law, in particular Article 217, as well as
any amendments, related measures, or implementing measures. To the
extent that wilful copyright piracy on a commercial scale that consists
of unauthorized reproduction--but not unauthorized distribution--of
copyrighted works, and vice versa, may not be subject to criminal
procedures and penalties under the law of China, this would appear to
USTR to be inconsistent with China's obligations under Articles 41.1
and 61 of the TRIPS Agreement.
Public Comment: Requirements for Submissions
Interested persons are invited to submit written comments
concerning the issues raised in the dispute. Comments should be
submitted (I) Electronically, to FR0707@ustr.eop.gov, with ``China IPR
Protection and Enforcement (DS362)'' in the subject line, or (ii) by
fax, to Sandy McKinzy at (202) 395-3640, with a confirmation copy sent
electronically to the electronic mail address above.
USTR encourages the submission of documents in Adobe PDF format as
attachments to an electronic mail. Interested persons who make
submissions by electronic mail should not provide separate cover
letters; information that might appear in a cover letter should be
included in the submission itself. Similarly, to the extent possible,
any attachments to the submission should be included in the same file
as the submission itself, and not as separate files.
Comments must be in English. A person requesting that information
contained in a comment submitted by that person be treated as
confidential business information must certify that such information is
business confidential and would not customarily be released to the
public by the commenter. Confidential business information must be
clearly designated as such and ``BUSINESS CONFIDENTIAL'' must be marked
at the top and bottom of the cover page and each succeeding page.
Persons who submit confidential business information are encouraged
also to provide a non-confidential summary of the information.
Information or advice contained in a comment submitted, other than
business confidential information, may be determined by USTR to be
confidential in accordance with section 135(g)(2) of the Trade Act of
1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information
or advice may qualify as such, the submitter--
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as ``SUBMITTED IN CONFIDENCE''
at the top and bottom of the cover page and each succeeding page; and
(3) Is encouraged to provide a non-confidential summary of the
information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR
will maintain a file on this dispute settlement proceeding, accessible
to the public, in the USTR Reading Room, which is located at 1724 F
Street, NW., Washington, DC 20508. The public file will include non-
confidential comments received by USTR from the public with respect to
the dispute; if a dispute settlement panel is convened or in the event
of an appeal from such a panel, the U.S. submissions; the submissions,
or non-confidential summaries of submissions, received from other
participants in the dispute; the report of the panel; and, if
applicable, the report of the Appellate Body. The USTR Reading Room is
open to the public, by appointment only, from 10:00 a.m. to noon and 1
p.m. to 4 p.m., Monday through Friday. An appointment to review the
public file (Docket WTO/DS-362, China IPR Protection and Enforcement
Dispute) may be made by calling the USTR Reading Room at (202) 395-
6186.
Daniel Brinza,
Assistant United States Trade Representative for Monitoring and
Enforcement.
[FR Doc. E7-7612 Filed 4-20-07; 8:45 am]
BILLING CODE 3190-W7-P