If ever we hated to say "we told you so", this is that
moment. The U.S./Brazil dispute over U.S. cotton subsidies
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)).
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 ) AND
saying (WTO Cross-Sector Sanctions -
Brazil Set To Retaliate Against U.S. IP ) 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.
 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.http://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c6s10p1_e.htm