China Law Blog: 'The WTO, China's Media, Copyrights And Other IP. It's A Control Thing.'

I haven't blogged about the World Trade Organization's recent decision in the US' case against China over alleged deficiencies in Chinese IP enforcement, mainly because I don't have enough familiarity either with Chinese law or WTO procedures to have much to say. Thankfully, there are others unburdened with my lack of knowledge in these areas. To wit, China Law Blog has a very interesting report that explains why, though the US nominally "won" on 2 of the 3 claims it brought, the overall WTO decision was actually a victory for China. Explains CLB:

The U.S. WTO case had one serious issue: the argument that Chinese criminal sanctions are not severe enough to deter piracy. The other two issues were trivial and technical. The U.S. lost on the serious issue and won on the trivial issues. This means the U.S. lost the case. So we should just say that: the U.S. lost.

However, it was a foregone conclusion the U.S. would lose on the criminal sanctions issue. No WTO panel is going to tell a country how to organize its criminal system. The U.S. knew this from the start. So why did the U.S. bring the action at all since it knew it would lose? China has made enormous progress on IP protection since its accession to the WTO. China's reward: the U.S. brings an action with the WTO. On the surface, this was an entirely stupid thing to do. However, the U.S. does not bring these actions out of stupidity. Therefore, the useful question should be why did the U.S. bring this claim? What was the strategy?

CLB goes on to surmise that the real motivation for the US' case was "market access," i.e., pressuring the Chinese to remove or lower the barriers that limit release of US films in China. But CLB says this won't work:

The Chinese government does not see media and ideas and the rest as a "market". They see it differently. They see it as an impediment to government control. Accordingly, they have no intention of ever opening this "market".

This makes sense; China does little to crack down on piracy of Hollywood movies, but God help the web video site that allows users to post pro-democracy paeans or porn. Thus, I hereby repeat my entreaty that Hollywood "produce a lot more movies featuring heroic Tibetan and Taiwanese freedom fighters (with plenty of gratuitous sex scenes)." Hard to imagine a more effective anti-piracy strategy.