How the US Lost Its China Complaint On IP

An anonymous reader writes "The World Trade Organization yesterday released its much-anticipated decision involving a US complaint against China over its protection and enforcement of intellectual property rights. The US quickly proclaimed victory, with newspaper headlines trumpeting the WTO panel's requirement that China reform elements of its intellectual property laws. Yet the reality is somewhat different. As Michael Geist notes, the US lost badly on key issues such as border measures and criminal IP enforcement, with the international trade body upholding the validity of China's laws."

Comments

the real problem is enforcement

[Ritz_Just_Ritz]

I spend a great deal of time in China. The real crux of the problem is that there is a WIDE gulf between the law and enforcement of the law (unless it involves anti-government behavior...then the gulf narrows quickly).

I can easily go to any one of hundreds of locations that I know of (and I'm a damn foreigner) in Beijing and buy openly pirated movies and software. Sure, it is illegal to sell that stuff per the law books, but the government just doesn't care. And when they make some noise about caring, it's VERY temporary, the press gets their story and photos, and then it's back to business as usual.

Government officials are profiting directly from winking at this illicit trade so there's little incentive for those lower on the totem poles to rock the boat. It's not uncommon for the owner of one of these illicit DVD/CD fabs to bring in the relative of some party official in as a "silent partner" to keep the heat off. Welcome to China. Now be quiet and enjoy your 10RMB DVD (complete with fancy packaging and liner notes) that can be had in most subway stations and street corners in Beijing...er...roughly 7% of the price I'd pay at my local Best Buy for the same title in similar packaging.....

Re:the real problem is enforcement

[zappepcs]

There is the problem, full in your face style. No matter what trade agreements are agreed to, China is run differently internally than the USA or European Union countries. Going to the WTO is like asking a police officer to witness someone robbing your car all the while knowing that the police officer will not arrest the robber. I don't think anyone has a full grasp of what would happen if the US simply stopped doing business with China cold turkey style... So, this remains a problem.

Re:the real problem is enforcement

[Anonymous Coward]

Personally during my time in China, I liked the fact that DVD's were so cheap.
From what I've heard, DVD companies initially tried selling DVD's in China for the same price they do in Western countries, and only the top business owners can afford that type of thing.
China also has _far_ more problems that copyright infringement to get fixed first.
During my time there as an English teacher, the boss I had (oh and this is at a school that is a business venture of a big foreign university!) took 150RMB off one of the Chinese girls that worked with me. She only got 1500RMB a month, often had to work 4 hours over time every day, and didn't get paid for it despite the law saying she should be.
I went into my boss' office with a photocopy of the letter he'd given her saying he was taking 10% of her wages, because she had forgotten to sign her name in one day. Asked him what was up with it and got really pissed off at him, was close to walking out. I hate seeing others treated that way.
I've thought about bringing this to the attention of the university that is in charge of the English school, but I doubt they'd do anything. It piss' me off that many institutions from rich countries criticize the treatment of workers in China, but go full steam ahead and exploit it themselves. Bloody hypocrites.
I'm going to post this anonymously as at the moment I don't want to take any risks for when I go back there.
Anyway, as I said, China has more issues to deal with than copyright infringement. Despite all the problems in China though, I recommend going there, I absolutely love the country, the food, and most of the people. If they could sort out the pollution problems I think it would be the most beautiful country on earth.

Re:the real problem is enforcement

[Sanat]

I was a visiting American Scientist during my prolonged stay in China and was the first American that many Chinese seen since the Chiang Kai-shek stuff from the 50's and 60's. I traveled some with the president of the American company where I worked (he was American Chinese) and so I had a lot of opportunities to explore many place that most Americans would not be admitted.

I literally traveled from one end of China to another. I am rather a low key guy but because of my title then each Chinese providence would hold a banquet in my honor and so we would drink wu-shing pigu (5 star beer) and a clear liquor that I forget the name of but it was potent... anyway, I found the Chinese to be a most proper group of individuals and were good to their word... except if government was involved then they followed the ticket that was being trailed out... probably for self preservation.

I really enjoyed the people and loved the environment... being raised originally on a farm in Ohio made me understand a lot more than if I was a city slicker. What I did find though was that the average person did what they had to do to get along in life. If it meant duplicating a song or a data file then it was not a problem for them... I must reiterate that their values were neither greater nor less than mine but rather that they did what they had to do to survive in the economy of that era.

Sometimes I wish that I had transfered there permanently. My heart is very similar to that of the typical Chinese individual and they had a warmth that I find missing in today's life in America.

Quite fair actually

[femto]

It seems quite fair to ask that the rights holder pay the cost of production if they choose to take possession the bootleg product, as they are then free to sell it for retail price. Why should the rights holder get a bunch of free product, which they would otherwise have to have paid to produce? If they rights holder doesn't want to retail the bootleg product themselves they can refuse to buy it.

In this case the Chinese government seems to be ahead of the US in applying market principles..

Re:Quite fair actually

[sumdumass]

I think the problem isn't as much the IP holder not wanting to buy the counterfeit product back. For all intents and purposes, the product could be tainted in some way or carry a liability of some sort. The problem is that if it was wrong for the pirate to sell the material based on the lack of permission from the copyright holder, then it is still wrong for anyone else to do the same.

You see, law enforcement isn't supposed to be making a profit from other people's crimes whether you agree with those crimes or not. And because the IP holder doesn't want to purchase them, doesn't mean they lose any right to them. Otherwise the cops could create a legitimate counterfeiting scheme where they find all sorts of counterfeit merchandise but never the pirates and thereby are guaranteed a profit by either selling them to the IP holder or the public at large. Market principles simply don't apply unless copyright law says something to the effect of "the creator or owner of the copyright has the exclusive control over distribution unless the cops find someone breaking the law". As far as I know, it doesn't and as far as I know, the exclusive rights are guaranteed by treaties which don't hold those provisions.

It's a tad more complicated

[SpeedyDX]

The way the U.S. Constitution is set up is quite unique with regards to international treatises and agreements. Once the U.S. enters into an international treatise, it is not only bound to act in accordance with the treatise in international relations, but the treatise also becomes a law of the land. And not only is it a law of the land, it is considered on par with other constitutional law, i.e., supreme over other laws.

Because of this very unique structure (I am unaware of other major political players with similar constitutional provisions), the U.S. tends to have more of a vested interest in either trying to change the terms of an agreement so that it falls more in line with their own laws, or to abstain entirely from an international treatise (e.g., Kyoto).