Intellectual Property Rights Blowing in the Wind

Intellectual Property Rights Blowing in the Wind

If ever we hated to say "we told you so", this is that moment.   The U.S./Brazil dispute over U.S. cotton subsidies[1] has landed the U.S. on the wrong side of a WTO ruling, resulting in sanctions.  Brazil has already identified 102 U.S. products on which it will now impose those (sanctioned ) sanctions.  The $238 million allowance for cross-sector retaliation in the area of U.S. services and intellectual property is next on the list. And, the Intellectual Property Bar has an important task ahead to protect our country's great resources of technology and media by pushing for a resolution of this issue and getting IP off the table as a too easily bargained chip. The WTO Dispute Resolution process explicitly directs to cross-retaliation through TRIPs when to do so in other sectors would present trade barriers for developing countries (Countermeasures by the prevailing Member (suspension of obligations)).[2]

The Intellectual Property Bar has to take a stand on this invitation to destroy whole industries and deprive countless individuals of the honest benefit of their work. Whether that stand leads to modification or elimination of the imposition of cross-sector sanctions falling on IP is not ours alone to say. But, we do say that the work must be done now, and fast: the work of complying with WTO rulings where they involve Intellectual Property and the work of protecting Intellectual Property rights from being bargained away in disputes where Intellectual Property is not implicated.

Unless Secretary of Commerce Gary Locke, currently in Brazil to work on this, can make a quick fix, or Congress can act quickly and come into compliance with the WTO ruling (as urged by United States Trade Representative Ron Kirk) U.S. intellectual property is in real danger of flying around the world as freely and easily as a piece of subsidized or not cotton in the wind.  As we have been saying (Trading in Your Intellectual Property: International Treaties and Implications for Domestic Rights Holders Horbaczewski & Geik, LexisNexis Emerging Issues Analysis, 2009 [3]) AND saying (WTO Cross-Sector Sanctions - Brazil Set To Retaliate Against U.S. IP [4]) U.S. non-compliance with WTO rules - the very rules the U.S. helped write and advocated for- will now have wide ranging effects on U.S. business, and, therefore, on the U.S. economy.  We sympathize with the many pressing issues before Congress. And, we recognize that this Congress and this President have only inherited the issues from their predecessors.  But, that is all the more reason for them to take action now.   


[2] Text at Footnote 4 For these reasons, it is important for developing countries to be able to use methods of suspending obligations that do not result in trade barriers. Suspending obligations under the TRIPS Agreement is an example of how to do so.