Cross Retaliation at the WTO: Why I think WIPO is Wrong

A WIPO Official recently suggested that such IP suspension will not work, since Antigua will end up contravening its independent obligations under the Berne and Paris Conventions. An ICTSD newsletter reports:

“A senior official of the World Intellectual Property Organization last week created a stir by suggesting that suspending certain intellectual property protections could leave the Antiguan government in breach of international treaty obligations other than the WTO.

In an interview with the Antigua Sun, Jorgen Blomqvist, the director of WIPO’s copyright law division, pointed specifically to the Berne Convention for the Protection of Literary and Artistic Works, an international copyright agreement ratified by both the US and Antigua. The Berne Convention is one of several intellectual property treaties administered by WIPO, which is based in Geneva.

“The [WTO] TRIPS Agreement says that contracting parties shall comply with the Berne Convention, with one exception, but the bulk of the economic protection under the Berne Convention is referred to in the TRIPS Agreement,” Blomqvist said, reports the Antigua Sun.

“Since both parties are parties to the Berne Convention, if they, under some other convention, start to not grant protections to each other, then they will infringe the Berne Convention,” Blomqvist added. “The fact that under one treaty you can make such sanctions does not relieve a country from responsibilities under other treaties.”

Frederick Abbott, a professor of international law at Florida State University, argued that “there is reason to doubt the validity of Mr. Blomqvist’s opinion” on the relationship between WTO rules and the Berne convention.”

I tend to agree with Professor Abbott and my paper has a good 3-4 pages on why I think the WIPO official is wrong. I reproduce some extracts below, but for a full length version, please see here.

“Upholding the Berne or Paris Conventions, despite a WTO authorization to cross retaliate will render redundant a key aspect of the WTO retaliatory framework. In other words, there is a direct conflict between WTO provisions on cross retaliation and the Berne/Paris provisions, particularly the one on national treatment.

Article 59 of the Vienna Convention provides that in such circumstances, the latter treaty obligation undertaken by member states i.e. the WTO ought to prevail. Article 59 (1) reads:

“A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and:

(a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or

(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time”.

As mentioned earlier, the operative provisions of both Berne and Paris have been incorporated verbatim into TRIPS. The key reason for such inclusion was to avail of the strong enforcement framework under the WTO. This is more than borne out by the fact that despite the existence of dispute resolution provisions under both Berne and the Paris Conventions discussed above, no country has so far invoked them, owing to a perception that they were ineffective. As a GAO
report points out:

“[K]nowledgeable government officials agree that [existing multilateral intellectual property agreements] do not contain effective provisions for challenging countries that do not meet their obligations.”

From this, one can conclude that members intended that the “incorporated” provisions (provisions of Berne that were incorporated into TRIPS) were intended to be governed only by the WTO enforcement framework. There is no independent cause of action for their violation or an obligation to submit to the ICJ under Article 28 of Paris or 33 of Berne.

Article 2.2 of TRIPS (which states that nothing in TRIPS shall derogate from obligations of members states under either Paris or Berne101) may cast some doubt on the above intepretation. However, this section can be harmoniously construed to mean that the Paris and Berne obligations that did not make it to TRIPS still survive and members of either of these treaties are still bound to each other, as regards their implementation and enforcement. The moral rights obligation under Article 6bis of the Berne Convention is an excellent example in this regard.

Assuming the above argument does not work, Antigua could easily argue that WTO/TRIPS ought to trump Berne/Paris in view of Article 59 (2) of Vienna i.e. the provisions of TRIPS/WTO are incompatible with Berne/Paris and therefore cannot be applied at the same time. It is the US that has blatantly disregarded a WTO commitment and has, despite panel and appellate body rulings to this effect, failed to comply. A WTO arbitrator has found that the only meaningful way for Antigua to secure compliance is by retaliating in respect of TRIPS i.e. by suspending IP obligations. No other retaliation is likely to have ay effect on the US. However, if such retaliation were to be construed as amounting to a Berne or Paris violation, it virtually renders the enforcement provisions under the WTO meaningless. As discussed earlier, there is no effective way for Antigua to narrowly retaliate by suspending IP obligations that fall outside the purview of of the Paris and Berne Conventions.

Even assuming that Article 59 does not apply and the Berne obligations hold good, Antigua could ignore the threat of any potential sanction for breaching either Berne or Paris. It bears reiteration that it is the US that has contravened a key WTO commitment and thereby seriously prejudiced a relatively much poorer trading partner, Antigua. Antigua’s only realistic way of securing compliance is by suspending IP rights. If this remedy were to be watered down owing to a legal technicality flowing from a reading of TRIPS and the Berne/Paris Conventions, this would be grossly unfair.

With the moral high ground in favour of Antigua, it is difficult to see how a technical breach of either the Berne and Paris Conventions will attract the ire of the Security Council. Intellectual property violations, particularly when otherwise authorized by the WTO, do not seem to be the kind of things that the Security council is likely to waste it’s time on.

Given the track record of the US in complying with ICJ rulings, it will be paradoxical for the US to insist upon an ICJ compliance, that directly conflicts with a WTO DSB authorization. Particularly when it is in violation of a WTO ruling and has come to the Security Council with unclean hands. If not for anything else, China, which has been at the receiving end of WTO actions by the US for allegedly failing to comply with TRIPS is likely to oppose any such move.”