The FT reported yesterday that the U.S. is asking for more information about Chinese enforcement, including criminal enforcement, and penalties, for intellectual property infringement. The U.S. is threatening WTO litigation for non-compliance with this request. The U.S. made its request under Art. 63.3 of TRIPS. Here is the relevant text of Art. 63.1 and 63.3:
1. Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them. Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.
3. Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.
Paragraph 1 seems to call for information about final judicial decisions of general application, while the second sentence of paragraph 3, would seem to call for information only about specific decisions, not about decisions generally. So, one wonders what the U.S. theory is?
This dispute would seem to lend support to those who argued that China's entry into the WTO might help reform its rather opaque domestic legal system. However, it is not clear that pressure on intellectual property rights will have spillovers into other fields.
