Category Trade Disputes

Could Sanctioning South Africa for Copyright Reform Violate the World Trade Organization?

This note describes the limitations that the World Trade Organization agreements place on criteria for generalized systems of preference programs, such as those included in AGOA. First, the GSP enabling clause requires that factors be non-reciprocal, general, and oriented toward the recipients’ development. These standards may be violated when criteria are not based on a broad based international norm such as in the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Second, the dispute settlement understanding prohibits unilateral litigation of TRIPS.

Five Reasons the U.S. Should Not Review Its Dealings With South Africa

[Sean Flynn and Jonathan Band] On November 13, 2019, BusinessTech published an article listing the International Intellectual Property Alliance’s five primary concerns with the Copyright Amendment Bill awaiting President Ramaphosa’s signature. These concerns have led the U.S. Trade Representative to review the eligibility of South Africa for trade preferences. An examination of these five concerns reveals that they have no merit.

USTR Launches Review of South African GSP Benefits

The USTR has announced that its next GSP review hearing will include consideration of the complaint by the IIPA alleging that South Africa’s adoption of a US style fair use right would violate the adequate and effective intellectual property requirement for GSP (19 U.S.C. 2462(c)(5)) primarily due to passage (but not yet signed into law) Copyright Amendment Act.

IIPA Petition Leads USTR to Review South Africa’s GSP Benefits

The U.S. Trade Representative (USTR) has announced an upcoming review of South Africa's eligibility for trade benefits under the General System of Preferences (GSP), a system which allows duty-free imports from developing countries that meet certain criteria. According to the announcement, USTR "is accepting a petition from the International Intellectual Property Alliance based on concerns with South Africa’s compliance with the GSP IP criterion, in the area of copyright protection and enforcement." It will publish a Federal Register Notice requesting comments and announcing the dates of a public hearing.

USTR Seeks Comments For Annual Report on Foreign Trade Barriers

The U.S. Trade Representative has called for comments for the National Trade Estimate Report on Foreign Trade Barriers (NTE). The report, published each year "sets out an inventory of the most significant foreign barriers affecting U.S. exports of goods and services, including agricultural commodities, U.S. intellectual property, U.S. foreign direct investment by U.S. persons, especially if such investment has implications for trade in goods or services, and U.S. electronic commerce."

Response to IIPA Comments to USTR Regarding South Africa’s Copyright Amendments Bill and AGOA Eligibility

[Sean Flynn and Peter Jaszi] We write in reference to the August 1, 2018, filing of the IIPA, in respect of South Africa’s proposed copyright amendments. IIPA claims that adoption of the South Africa copyright amendment bill “would place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property.” We find this claim wholly unsupported.

IIPA Claims that South Africa’s Copyright Reform Bill Would Make the Country Ineligible for AGOA Benefits

The U.S. Trade Representative (USTR) is conducting its annual review of country eligibility for trade benefits under the African Growth and Opportunity Act (AGOA). This law allows beneficiary countries to export certain goods into the U.S. duty-free. The benefits are conditional upon a set of criteria, which includes the protection of intellectual property. The International Intellectual Property Association (IIPA) has filed comments to USTR arguing that South Africa’s copyright reform legislation, if it becomes law, “would place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property.” 

Judicially Developed Patent Law and Expropriation Under Investor-State Dispute Settlement

[Tsai-fang Chen] Abstract: Eli Lilly v. Canada is the first international investment arbitration case that renders final award that deals with patents under the international investment regime. This case is, therefore, critical in understanding the development of protecting patents under investment protection and its impact on the domestic patent regimes. Patents can be object of direct expropriation or that of indirect expropriation. As demonstrated in Eli Lilly v. Canada, a new frontier in claiming expropriation of patents is the invalidation of the patent by courts.

EU Files WTO Case Against China Over Intellectual Property Rights Protection

[William New, IP Watch] The European Union has filed a World Trade Organization dispute settlement complaint against China for unfair treatment of foreign intellectual property rights holders. The case follows a similar filing by the United States against China. The EU says in its filing, available here, that a series of measures employed by China violate the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The Chilling Effect: Investor-State Dispute Settlement, Graphic Health Warnings, the Plain Packaging of Tobacco Products, and the Trans-Pacific Partnership – Matthew Rimmer

The Chilling Effect: Investor-State Dispute Settlement, Graphic Health Warnings, the Plain Packaging of Tobacco Products, and the Trans-Pacific Partnership Victoria University Law and Justice Journal (2017) Matthew Rimmer Investor-State Dispute Settlement (ISDS) poses significant challenges in respect of tobacco control,…

Commissioner Malmström’s Response to Civil Society Concerns Over the Third Country Report on the Protection of IPRs

On 16 April 2018, KEI Europe and 32 groups wrote a letter to the European Commission’s Trade Commissioner, Cecilia Malmström, expressing concerns over the Commission’s plans to create an EU Watch List. In the letter, we noted that although the European Union has publicly committed its commitment to support the right of third countries to use the public health safeguards of the WTO TRIPS Agreement, the “Third Country Report on the protection and enforcement of intellectual property rights in third countries” challenged these very safeguards by targeting third countries for enacting policies on: 1) strict patentability criteria (Argentina, Brazil, India, Indonesia, and Russia), 2) local working provisions (Ecuador and Indonesia), and 3) compulsory licensing (Ecuador,India and Ukraine).

The Plain Packaging of Tobacco Products – a Special Issue of the QUT Law Review – Open Access

The QUT Law Review has officially published the final version of Volume 17 (2) – Special Issue on the Plain Packaging of Tobacco Products. This issue looks at important legal and regulatory issues surrounding plain packaging reforms and the ways in which other jurisdictions have approached plain packaging reform and policy. In particular, it covers Australia, the United Kingdom, Canada, New Zealand, and Ireland.