As expected, the WTO recently authorised Antigua, a tiny Carribean island, to “cross retaliate” against intellectual property belonging to the United States.
What this effectively means is that Antigua qualifies as a “legal” pirate of the Carribean i.e. it can pirate music and movies belonging to US copyright holders, without violating any international norm. (I deliberately use the term “legal” pirate, if only to evoke a strong paradox).”…
Several articles cover this interesting development which will no doubt have significant ramifications for our discourse on the “fairness’ of free trade, egregious breaches by the world’s largest trader, and of course, our rather deep rooted belief in the sanctity of intellectual property.
As the US threatened Antigua with dire consequences for this purported “IP theft”, Antigua quoted Bob Dylan: “When you ain’t got nothing, you got nothing to lose”. Certain to go down in trade history as a classic!
Several articles cover this interesting development which will no doubt have significant ramifications for our discourse on the “fairness’ of free trade, egregious breaches by the world’s largest trader, and of course, our rather deep rooted belief in the sanctity of intellectual property.
I extract from one such article:
“Antigua may be the first country to have a government-run torrent site, effectively legalizing Internet piracy. The World Trade Organization has given approval for the tiny Caribbean nation to suspend United States copyrights, allowing the government to run a torrent site that will host and sell movies and other intellectual properties without compensating American studios or creators.”
Another article offers some background to this interesting WTO dispute between the world’s leading super power and a tiny island nation that many may not have heard of.
“Antigua’s reasons for pursuing sanctions against the US are related to the countries’ once-flourishing online gambling industry. Over a decade ago, the US outlawed Antigua-based gambling sites, and the two countries have been embroiled in a dispute ever since.
The online gambling industry contributed $3.4 billion per year to the Antiguan economy at its height, and employed over four percent of the country’s citizens. After the US instigated the ban, Antigua sought help from the WTO to rectify the situation. In 2004, the WTO ruled in Antigua’s favor, but even after a 2005 US appeal fell on deaf ears, the US still refused to reverse its decision.”
For those interested, the concept of cross retaliation was covered by me in previous SpicyIP posts, here and here.
In particular, I have a full length paper in a special issue of the Law and Development Review discussing a viable model for cross retaliation. This paper details the Antigua dispute and proposes an elaborate IP suspension model that Antigua could comfortably deploy in its bid to ensure compliance with the WTO framework (it bears noting that Antigua can retaliate only to a limited extent, in that the losses caused to the US by Antigua’s IP suspension cannot exceed USD 21 million each year).
Clearly, the US is upset! In their report to the WTO, they rail against Antigua’s “misplaced decision to abandon constructive settlement discussions” and issue a rather stern warning:
“if Antigua does proceed with a plan for its government to authorize the theft of intellectual property, it would only serve to hurt Antigua’s own interests. Government-authorized piracy would undermine chances for a settlement that would provide real benefits to Antigua. It also would serve as a major impediment to foreign investment in the Antiguan economy, particularly in high-tech industries.”
Antigua responds with a telling counter:
“For nearly a decade, Antigua has sought to resolve the dispute with the United States Government over the US failure to abide by American treaty obligations with regard to remote gaming.
..The economy of Antigua and Barbuda has been devastated by the United States Government’s long campaign to prevent American consumers from gambling on-line with offshore gaming operators. These aggressive efforts to shut down the remote gaming industry in Antigua has resulted in the loss of thousands of good paying jobs..
As a result of the US failure to comply with international law, the Antiguan economy and our citizens have suffered. In previous statements, the United States has indicated there could be possible adverse consequences for Antigua and its citizens for resorting to this WTO-sponsored remedy. We assume this is just rhetoric for public consumption, and we look forward to the United States putting aside these tactics and focusing their future efforts on thoughtful negotiation rather than on hyperbole and intimidation..”
But what takes the cake is Antigua’s witty recourse to a sentiment expressed by one of the most famous US musicians ever. In a statement to the WTO, Antiguan High Commissioner to the UK, Carl Roberts paraphrased Bob Dylan: “[As] an American musician once said, ‘When you have nothing, you have nothing to lose’”.
Many predict that this pirate haven in the Carribean will never come to pass, as the US will now quickly move to settle. And settle it did, when Brazil raised a similar war cry some years ago…
ps: Thanks to Malavika Jayaram for pointing me to this hilarious image.
Dear Shamnad,
The fear of cross-retaliation in the IP arena is immense it seems from this USTR statement (http://www.ustr.gov/about-us/press-office/press-releases/archives/2007/december/statement-internet-gambling) –
“The United States is concerned, however, that the Arbitrator agreed with Antigua’s request to suspend WTO concessions not just with respect to services, but also with respect to intellectual property rights (IPR). Any authorization pursuant to the award would be strictly limited to Antigua; every other WTO Member remains obliged to protect U.S. IPR under WTO rules, including enforcement against any IPR-infringing goods. Moreover, even with respect to Antigua, it would establish a harmful precedent for a WTO Member to affirmatively authorize what would otherwise be considered acts of piracy, counterfeiting, or other forms of IPR infringement. Furthermore, to do so would undermine Antigua’s claimed intentions of becoming a leader in legitimate electronic commerce, and would severely discourage foreign investment in the Antiguan economy.”
Interesting times!
You know if Antigua goes through with this and if I may say, in my opinion, it might just since it is finally seeking the final authorization from the WTO after it had been authorised to cross retaliate by suspending its obligations under TRIPS in 2007, this would indeed be a significant development in international trade history.
We all know how such cross retaliations have gone in the past whether it is Brazil in cotton subsidies or Ecuador over banana tariffs against the EU and others. None of these countries have actually ever acted on the authorisation to cross retaliate by suspending their TRIPS obligations. There is an interesting 2009 article on this which I am sure you must be aware of. Available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415802
Antigua, in its response to the pressures already being imposed by its powerful trading partner indulging in the usual propaganda portraying suspensions of this nature as piracy or IP theft, has quintessentially demonstrated what the author in this article advises as the approach to be adopted by developing countries facing such challenges as “sometimes there is no better answer than a tough skin”.
Bravo Antigua!
My take is found here – http://treadthemiddlepath.blogspot.in/2013/01/antigua-gambling-and-dispute.html
This seems more interesting as a matter of principle than in terms of “piracy” and IP per se. If I understand correctly the actual amount of retaliation that Antigua is authorized to impose is fairly small, so were it to do something like this, and if the site were used, then it would very quickly have to remove the site. Otherwise Antigua itself would be in violation with WTO.