Category Trade Disputes

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.

Special 301: U.S. Gov’t “Watch List” Threatens Access to Meds

[Public Citizen] Special 301 is an annual report by the Office of the US Trade Representative (USTR) which places countries on a “watch list” if USTR would like to see greater changes in their intellectual property rules or enforcement practice.The USTR articulates in past Special 301 Reports that “the United States respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all,” and “the United States respects its trading partners’ rights to grant compulsory licenses in a manner consistent with the provisions of the TRIPS Agreement.” However, in these same reports, USTR has frequently criticized countries for exercising public health rights and other flexibilities enshrined in the TRIPS Agreement and Doha Declaration. Every year the USTR hears public comments on the Special 301 review.

Lies, Distortions, and False Promise: The U.S. Position on Compulsory Licenses in the 2018 Special 301 Report

[Brook Baker] Once again the U.S. is unbelievably duplicitous in its 2018 Special 301 Report on permissible uses of compulsory and government use licenses by its trading partners, including most recently Colombia and Malaysia where it is announcing out-of-cycle reviews.  On the one hand, the USTR pays lip service to the Doha Declaration on the TRIPS Agreement and Public Health, saying that “the United States respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all” (p. 33) and that it supports use of the so-called Paragraph 6 compulsory licensing system (p. 34), which has only been used once in 15 years.  However, it has withdrawn a statement in its 2017 Special 301 Report that “the United States respects its trading partners’ rights to grant compulsory licenses in a manner consistent with the provisions of the TRIPS Agreement and the Doha Declaration … ” On the other hand, the U.S. issued a broadside assault on the actual issuance of, or even discussion of compulsory licenses in a Report replete with lies, distortions, and false promises.

The Global Tobacco Epidemic, the Plain Packaging of Tobacco Products, and the World Trade Organization

Abstract: In response to complaints by Ukraine, Honduras, the Dominican Republic, Cuba, and Indonesia, the Government of Australia has defended the introduction of plain packaging of tobacco products in the World Trade Organization. This article focuses upon the legal defence of Australia before the WTO Panel. A key part of its defence has been the strong empirical evidence for the efficacy of plain packaging of tobacco products as a legitimate health measure designed to combat the global tobacco epidemic. Australia has provided a convincing case that plain packaging of tobacco products is compatible with the TRIPS Agreement 1994 – particularly the clauses relating to the aims and objectives of the agreement; the requirements in respect of trade mark law; and the parallel measures in relation to access to essential medicines.

China Claims U.S.’s Section 301 Investigation into Its Tech Transfer and IP Licensing Policies May Violate WTO Dispute Settlement Understanding

Last week, China warned that the U.S.'s threat of unilateral sanctions under Section 301 of the Trade Act violates its WTO commitment to settle disputes within the WTO Dispute Settlement framework, and it referred to a previous case in which a panel addresses how the U.S. could use Section 301 and stay within the bounds of the WTO framework.

Don’t Be Afraid of Compulsory Licenses Despite US Threats: Special 301 Reports 1998-2017 – Listing Concerns but Taking Little Action

For the past 20 years in its annual Special 301 Reports, the US has consistently criticized countries that do not have compulsory licensing standards that Big Pharma likes, that threaten to issue compulsory licenses, or that have actually had the temerity to issue a compulsory license... Despite its many complaints, veiled threats, and backroom maneuvers against compulsory licenses, the USTR’s bark has been much, much louder than it’s bite. 

My Comments to USTR for the 2018 Special 301 review

PIJIP’s research indicates that American firms operating overseas in industries that rely on copyright limitations enjoy better outcomes on average when our trading partners’ limitations are more open – defined as being open to the use of any type of work, by any user, or with a general exception that is open to any purpose subject to protections of the legitimate interests of right holders. Econometric research on both the activities of foreign affiliates of U.S. firms and service exports by U.S. firms illustrate this conclusion.  At the same time, firms in the more traditional “copyright sectors” (i.e. – music, movies, and printed media), do not seem to be negatively affected by greater balance and openness in copyright limitations.

USTR Notorious Markets: Online Ads Still Funding IP Infringement; Alibaba Fires Back About Report

[William New] The Office of the United States Trade Representative today released its annual list of the worst outlaw online and physical markets around the world, citing a range of major sources of problems in every part of the world. The list this year highlights new technologies, identifies online advertising as a large revenue source for counterfeiters, and includes Chinese online market Taobao, owned by internet giant Alibaba, for the second year in a row, leading the company to claim bias and politics are at play.