[Federal Register Volume 72, Number 195 (Wednesday, October 10, 2007)]
[Notices]
[Pages 57608-57609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5000]



[[Page 57608]]

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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

[Docket No. WTO/DS-362]


WTO Dispute Settlement Proceeding Regarding China--Measures 
Affecting the Protection and Enforcement of Intellectual Property 
Rights

AGENCY: Office of the United States Trade Representative.

ACTION: Notice; request for comments.

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SUMMARY: The Office of the United States Trade Representative (USTR) is 
providing notice that in accordance with the Marrakesh Agreement 
Establishing the World Trade Organization (``WTO Agreement''), at the 
request of the United States the WTO Dispute Settlement Body has 
established a dispute settlement panel to review the U.S. claims 
concerning certain measures pertaining to the protection and 
enforcement of intellectual property rights in China. The panel request 
may be found at http://www.wto.org contained in a document designated 
as WT/DS362/7. USTR invites written comments from the public concerning 
the issues raised in this dispute.

DATES: Although USTR will accept any comments received during the 
course of the dispute, comments should be submitted on or before 
November 16, 2007, to be assured of timely consideration by USTR.

ADDRESSES: Comments should be submitted (i) Electronically, to 
[email protected], with ``China IPR Protection and Enforcement 
(DS362)'' in the subject line, or (ii) by fax, to Sandy McKinzy at 
(202) 395-3640, with a confirmation copy sent electronically to the 
electronic mail address above, in accordance with the requirements for 
submission set out below.

FOR FURTHER INFORMATION CONTACT: Steven F. Fabry, Associate General 
Counsel, Office of the United States Trade Representative, 600 17th 
Street, NW., Washington, DC, (202) 395-3150.

SUPPLEMENTARY INFORMATION: Pursuant to section 127(b) of the Uruguay 
Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)), USTR is providing 
notice that at the request of the United States the WTO Dispute 
Settlement Body on September 25, 2007, established a dispute settlement 
panel pursuant to the WTO Understanding on Rules and Procedures 
Governing the Settlement of Disputes (``DSU''). Such panel, which would 
hold its meetings in Geneva, Switzerland, would be expected to issue a 
report on its findings and recommendations within approximately nine 
months after it is established.

Major Issues Raised by the United States

    The first matter on which the United States has requested the 
establishment of a WTO dispute settlement panel concerns the thresholds 
that must be met in order for certain acts of trademark counterfeiting 
and copyright piracy to be subject to criminal procedures and 
penalties. China has established these thresholds through the following 
measures, as well as any amendments and related or implementing 
measures: the Criminal Law of the People's Republic of China, in 
particular Articles 213, 214, 215, 217, 218, and 220; and two 
interpretations by the Supreme People's Court and the Supreme People's 
Procuratorate on several issues of concrete application of law in 
handling criminal cases of infringing intellectual property (one 
adopted on November 2, 2004, and the other adopted on April 4, 2007). 
It appears that certain acts of trademark counterfeiting and copyright 
piracy occurring on a commercial scale in China are not subject to 
criminal procedures and penalties in China. China's measures appear to 
be inconsistent with China's obligations under Articles 41.1 and 61 of 
the Agreement on Trade-Related Aspects of Intellectual Property Rights 
(``TRIPS Agreement'').
    The second matter on which the United States has requested the 
establishment of a WTO dispute settlement panel concerns goods that 
infringe intellectual property rights that are confiscated by Chinese 
customs authorities, in particular the disposal of such goods following 
removal of their infringing features. In this regard, the measures at 
issue include the following, as well as any amendments and related or 
implementing measures: the Regulations of the People's Republic of 
China for Customs Protection of Intellectual Property Rights, in 
particular Chapter 4 thereof, the Implementing Measures of Customs of 
the People's Republic of China for the Regulations of the People's 
Republic of China on Customs Protection of Intellectual Property 
Rights, in particular Chapter 5 thereof, and the General Administration 
of Customs Announcement No. 16 (April 2, 2007). It appears that, 
because of these measures, the customs authorities appear to be 
required to give priority to options for disposal of goods that 
infringe intellectual property rights that would allow such goods to 
enter the channels of commerce (for instance, through auctioning the 
goods after removing their infringing features). The requirement that 
infringing goods be released into the channels of commerce under the 
circumstances set forth in the measures at issue appears to be 
inconsistent with China's obligations under Article 59 of the TRIPS 
Agreement.
    The third matter on which the United States has requested the 
establishment of a WTO dispute settlement panel concerns China's denial 
of the protection of its Copyright Law to creative works of authorship 
(and, to the extent Article 4 of the Copyright Law applies to them, 
sound recordings and performances) that have not been authorized for, 
or are otherwise prohibited from, publication or distribution within 
China. For example, it appears that works that are required to undergo 
censorship review (or other forms of pre-publication or pre-
distribution review) before entering the Chinese market are not 
protected by copyright before the review is complete and publication 
and distribution within China has been authorized. In this regard, the 
measures at issue include the following, as well as any amendments and 
related or implementing measures:

     The Copyright Law, in particular Article 4;
     the Criminal Law, the Regulations on the Administration 
of Publishing Industry, the Regulations on the Administration of 
Broadcasting, the Regulations on the Administration of Audiovisual 
Products, the Regulations on the Administration of Films, and the 
Regulations on the Administration of Telecommunication;
     the Regulations on Administration of the Films Industry
     the Administrative Regulations on Audiovisual Products;
     the Administrative Regulation on Publishing;
     the Administrative Regulations on Electronic 
Publications;
     the Measures for the Administration of Import of Audio 
and Video Products;
     the Procedures for Examination and Approval for 
Publishing Finished Electronic Publication Items Licensed by a 
Foreign Copyright Owner;
     the Procedures for Examination and Approval of 
Importation of Finished Electronic Publication Items by Electronic 
Publication Importation Entities;
     the Procedures for Recording of Imported Publications;
     the Interim Regulations on Internet Culture 
Administration; and
     the Several Opinions on the Development and Regulation 
of Network Music.

    It appears that, because of the Copyright Law, authors of works 
whose publication or distribution has not been authorized or is 
otherwise prohibited

[[Page 57609]]

appear not to enjoy the minimum standards of protection specially 
granted by the Berne Convention for the Protection of Literary and 
Artistic Works (1971) (the ``Berne Convention'') in respect of those 
works (and may never enjoy such protection if the work is not 
authorized, or is not authorized for distribution or publication in the 
form as submitted for review). In addition, the rights of authors of 
works whose publication or distribution is required to undergo pre-
publication or pre-distribution review appear to be subject to the 
formality of successful conclusion of such review. The foregoing 
appears to be inconsistent with China's obligations under Articles 9.1, 
41.1 and 61 of the TRIPS Agreement. Furthermore, to the extent that the 
Copyright Law also denies the protection of certain rights to 
performers and producers of sound recordings during the period of any 
pre-publication or pre-distribution prohibition, the Copyright Law 
appears to be inconsistent with China's obligations under Articles 14, 
41.1 and 61 of the TRIPS Agreement.
    In addition, it appears that the measures at issue provide 
different pre-distribution and pre-authorization review processes for 
Chinese nationals' works, performances (or their fixations) and sound 
recordings than for foreign nationals' works, performances (or their 
fixations) and sound recordings. To the extent that these different 
processes, taken together with Article 4 of the Copyright Law, result 
in earlier or otherwise more favorable protection or enforcement of 
copyright or related rights for Chinese authors' works, Chinese 
performers' performances (or their fixations) and Chinese producers' 
sound recordings than for foreign authors' works, foreign performers' 
performances (or their fixations) and foreign producers' sound 
recordings, the measures at issue appear to be inconsistent with 
China's obligations under TRIPS Agreement Articles 3.1, 9.1, 41.1 and 
61.

Public Comment: Requirements for Submissions

    Interested persons are invited to submit written comments 
concerning the issues raised in the dispute. Comments should be 
submitted (i) Electronically, to [email protected], with ``China IPR 
Protection and Enforcement (DS362)'' in the subject line, or (ii) by 
fax, to Sandy McKinzy at (202) 395-3640, with a confirmation copy sent 
electronically to the electronic mail address above.
    USTR encourages the submission of documents in Adobe PDF format as 
attachments to an electronic mail. Interested persons who make 
submissions by electronic mail should not provide separate cover 
letters; information that might appear in a cover letter should be 
included in the submission itself. Similarly, to the extent possible, 
any attachments to the submission should be included in the same file 
as the submission itself, and not as separate files.
    Comments must be in English. A person requesting that information 
contained in a comment submitted by that person be treated as 
confidential business information must certify that such information is 
business confidential and would not customarily be released to the 
public by the commenter. Confidential business information must be 
clearly designated as such and ``BUSINESS CONFIDENTIAL'' must be marked 
at the top and bottom of the cover page and each succeeding page. 
Persons who submit confidential business information are encouraged 
also to provide a non-confidential summary of the information.
    Information or advice contained in a comment submitted, other than 
business confidential information, may be determined by USTR to be 
confidential in accordance with section 135(g)(2) of the Trade Act of 
1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information 
or advice may qualify as such, the submitter--
    (1) Must clearly so designate the information or advice;
    (2) Must clearly mark the material as ``SUBMITTED IN CONFIDENCE'' 
at the top and bottom of the cover page and each succeeding page; and
    (3) Is encouraged to provide a non-confidential summary of the 
information or advice.
    Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR 
will maintain a file on this dispute settlement proceeding, accessible 
to the public, in the USTR Reading Room, which is located at 1724 F 
Street, NW., Washington, DC 20508. The public file will include non-
confidential comments received by USTR from the public with respect to 
the dispute; if a dispute settlement panel is convened or in the event 
of an appeal from such a panel, the U.S. submissions; the submissions, 
or non-confidential summaries of submissions, received from other 
participants in the dispute; the report of the panel; and, if 
applicable, the report of the Appellate Body. The USTR Reading Room is 
open to the public, by appointment only, from 10 a.m. to noon and 1 
p.m. to 4 p.m., Monday through Friday. An appointment to review the 
public file (Docket WTO/DS-362, China IPR Protection and Enforcement 
Dispute) may be made by calling the USTR Reading Room at (202) 395-
6186.

Daniel Brinza,
Assistant United States Trade Representative for Monitoring and 
Enforcement.
[FR Doc. 07-5000 Filed 10-9-07; 8:45 am]
BILLING CODE 3190-W8-P