R5 michigan ap neg v georgetown lm [Redundant – Implementation Key]



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r5 michigan ap neg v. georgetown lm



[Redundant – Implementation Key]




TRIPS suspension solves the aff and creates a model for smaller countries—key to WTO legitimacy and IPR harmonization


Basheer 2010 – Ministry of HRD Professor in Intellectual Property Law, NUJS, Kolkata (Shamnad, The Law and Development Review, 3.2, “Turning Trips on Its Head: An "IP Cross Retaliation" Model for Developing Countries”, DOI: 10.2202/1943-3867.1063)
VIII. CONCLUSION

The US-Antigua Gambling case, which has pitted one of the WTO’s tiniest economies against its biggest, is seen as a test of whether the global trade body's dispute settlement system is equitable and fair. Such “fairness” will depend in some part, on how successful Antigua is with its threat to implement the cross retaliation authorization. Whilst the notion of IP “cross-retaliation” has been doing the rounds for a while, there is considerable uncertainty regarding how this concept will be operationalized and implemented. Developing countries urgently need to work out an optimal model that helps assess losses to the foreign IP owner in a reasonably objective way—this way there is no time lost between the procuring of a favorable order from the WTO sanctioning cross-retaliation and the actual cross- retaliation itself. The lack of a credible domestic model has no doubt caused Antigua’s threat of cross retaliation to be taken less seriously by the US. This paper seeks to fill this lacuna by proposing a tiered suspension mechanism as a viable option. That the model lacks technical precision in terms of computing losses to IP owners accurately is not fatal since the current WTO framework only requires a broadly objective model that does not reek of arbitrariness. Further, the aim of this paper is to evolve a model that will help in securing compliance or a settlement. Given that the IP lobbies in countries such as the US and the EU are powerful, the likelihood of a settlement or compliance is very strong. Particularly, since the model advocates an automatic compulsory license after the offending measures have been removed. In other words, the likelihood of a country having to operationalize the IP suspension model is very remote. Any infirmities in the model ought to be evaluated, bearing this overarching assumption in the model. Further, the current WTO framework only requires that broad equivalence be achieved and not that the retaliating state compute the losses to suspended IP owners in a technically accurate manner. Lastly, this paper highlights a paradox, albeit an obvious one. Cross-retaliation is often positioned as an exception to traditional retaliation, which often involves a simple imposition of tariffs on imports. In most cases concerning developing countries, cross-retaliation is a more effective remedy than traditional retaliation. Not least because a credible cross-retaliatory model will place the right kind of pressures on developed countries to comply, as the IP lobbies in these countries are quite powerful. Also, at a conceptual level, prominent free trade scholars remain skeptical of the imposition of minimum standards through TRIPS and the linkage between TRIPS and the WTO. To these free trade scholars who view traditional retaliatory techniques are somewhat antithetical to the very purpose of the free trade agreements, cross-retaliation by suspending TRIPS obligations sits much better—and in fact, may be desirable to offset the negative impact of TRIPS. As noted earlier, the bargain between the developed and the developing countries could be viewed as a give and take-where the developed countries offered to open their markets to developing country goods such as textiles and agriculture and the developing countries promised to implement minimum standards in IP so that developed country entities could extract rents from these countries. 194 Given the framework of this bargain, it is only fair that TRIPS obligations be suspended by developing countries, when developed countries fail to live up to their commitment to open up their markets. This paper therefore prescribes that cross-retaliation ought to be conferred with the status of a mainstream retaliatory technique, as opposed to a secondary one. Such a paradigmatic shift will go a long way towards making the WTO framework more meaningful to a large number of developing countries that continue to see it as representing an inequitable bargain. 195

We give the DSB sharper teeth by showing how cross-retaliation works—Antigua’s key so try or die flips neg


Basheer 2010 – Ministry of HRD Professor in Intellectual Property Law, NUJS, Kolkata (Shamnad, The Law and Development Review, 3.2, “Turning Trips on Its Head: An "IP Cross Retaliation" Model for Developing Countries”, DOI: 10.2202/1943-3867.1063)
This paper therefore seeks to work out a detailed IP suspension model that could help countries such as Antigua. It proposes a “Tiered IP suspension model”, where certain kinds of IP are targeted first for suspension before others, depending on the ease of objectively ascertaining the value of IP and thereby the harm caused by the unauthorized use of such IP and/or the potential to induce compliance by the defaulting state. Illustratively, copyrights over sound recordings that have established rates for public performance are targeted first. If working with this tier of IP subject matter does not yield desired results, then the complaining state moves on to other IP where it is relatively more difficult to compute the loss caused to the IP owner (such as pharmaceutical patents) but which may prove a more powerful tool to induce compliance.

Such a model could be useful for a large number of developing countries such as India and Brazil, that often find that, despite WTO victories, economically powerful developed countries such as the US and EU fail to comply. Towards this end, this paper offers a very concrete “development” oriented international trade law remedy.

This paper will also demonstrate that cross-retaliation fits conceptually better within the world trading system and what it stands for. To this extent, it needs to be positioned as the primary retaliatory mechanism for developing countries and not just a secondary resort. Since developing countries constitute the majority at the WTO, such a paradigmatic shift will go a long way towards preserving the “fairness” and legitimacy of the WTO.



Although this paper specifically names the US, EU, Antigua, Brazil and India in its various examples, one could, as easily, substitute the name of any other WTO member. In other words, the models/strategies enunciated in this paper could apply to any WTO member state, though they are more likely to be used by developing country members against developed country members that erect WTO inconsistent market barriers.

No backlash – US fears are rooted in concerns about the lack of a regulatory mechanism – we provide that


Basheer 2010 – Ministry of HRD Professor in Intellectual Property Law, NUJS, Kolkata (Shamnad, The Law and Development Review, 3.2, “Turning Trips on Its Head: An "IP Cross Retaliation" Model for Developing Countries”, DOI: 10.2202/1943-3867.1063)

In the US – Gambling (22.6 Arbitration) 79 , the US expressed some concern and requested the Arbitrator to require Antigua to specify how it would ensure that any suspension of concessions or other obligations did not exceed the level of nullification and impairment found by the Arbitrator. In particular, the US argued that Antigua's request did not place any value on GATS and TRIPS concessions and did not explain what mechanisms Antigua intended to use to ensure that the level of suspension did not exceed the level of nullification and impairment. The US feared that without strict supervision by the Government of Antigua, there would be no basis to calculate the level of suspension, or to determine whether the operators were abusing the authorization to suspend TRIPS concessions by offering pirated intellectual property in jurisdictions outside Antigua. 81 It bears reiteration that Antigua has not yet changed its domestic IP laws to authorize such retaliation.

Our ev assumes theirs but not vice versa—tiered suspension solves all their concerns


Basheer 2010 – Ministry of HRD Professor in Intellectual Property Law, NUJS, Kolkata (Shamnad, The Law and Development Review, 3.2, “Turning Trips on Its Head: An "IP Cross Retaliation" Model for Developing Countries”, DOI: 10.2202/1943-3867.1063)
VI. A TIERED SUSPENSION MODEL FOR IP “CROSS-RETALIATION”

Notwithstanding the grant of authorizations to cross retaliate, neither Antigua nor Ecuador have exercised this right or specified as to how they would implement such authorization. As far as Brazil is concerned, a proposed bill to implement cross retaliation authorizations is slowly making the rounds. 115 Absent an enabling law to effectively implement a WTO cross retaliation authorization, a domestic entity within the retaliating state cannot really avail itself to the WTO authorization. Illustratively, the government of Antigua came down heavily on Carib Media, a local company that wished to exploit US copyrights by offering cheap downloads of US music and movies through its website, zookz.com. The government publicly announced that that the zookz website “…is not operating under the authority or with the knowledge of the Government..”. The emphatic stance taken by the government of Antigua was no doubt fuelled in large part by its settlement talks with the US. 117 However, a credible cross retaliation model ready to be implemented domestically and availed of by companies like Carib Media may have increased the prospects of a quick and favorable settlement. Once a WTO panel determines the level of impairment (e.g. USD 21 million in the case of Antigua), it cannot then question Antigua on the precise nature of IP rights proposed to be suspended and whether such suspension will result in an equivalent “loss” to the US. However, such evaluation to determine “equivalence” may become important, if the defaulting state complains that the retaliation has exceeded the level of nullification or impairment. 118 Unless a complaining state works out a credible and transparent model in this regard, the resulting uncertainty may be exploited by the defaulting state. A comment from a trade lawyer 119 is illustrative in this regard:

“Even if Antigua goes ahead with an act of piracy or the refusal to allow the registration of a trademark, the question still remains of how much that act is worth. The Antiguans could say that’s worth USD 50,000, and then the US 116 might say, that’s worth USD 5 million—and I can tell you that the US is going to dog them on every step of the way.”



A model that might work reasonably well and entails a somewhat objective evaluation is considered below. For ease of reference, the section below uses the specific context of India and discusses the various Indian laws/regulations.

TRIPS provides for the mandatory protection of the following kinds of intellectual property rights:

Section 1: Copyright and related rights

Section 2: Trademarks

Section 3: Geographical Indications

Section 4: Industrial Designs

Section 5: Patents

Section 6: Layout-Designs (Topographies) of Integrated Circuits (hereafter

“semiconductor chip protection”)

Section 7: Protection of undisclosed information.120



Depending on the kind of industries that are prevalent in the defaulting and the complaining states, one or more of the above categories could be suspended (hereafter “suspended IP”). The aim is to ensure that the targeted retaliation proves an effective threat and induces compliance or an amicable settlement within the shortest possible time. Notably, in the US – Gambling (22.6 Arbitration), 121 Antigua requested that the following categories be suspended in relation to US nationals: copyrights, trademarks, designs, patents and undisclosed information. Contrast this with the EC – Bananas III (Ecuador), 122 where Ecuador asked that the following be suspended: copyright and related rights; geographical indications (GI’s) and industrial designs. 123 The inclusion of geographical indications should come as no surprise, given the relatively high importance of GIs to the EU. 124 The fact that patents have been excluded might be an indication of Ecuador’s low technological base that might have prevented an effective exploitation of suspended patent rights. This paper recommends that while requesting the right to retaliate, the complaining state include all categories of IP, since an initially excluded category might turn out to be important later on. Besides, given that complaining states are relieved of any requirement to precisely demonstrate the nature and kind of suspensions to an Article 22.6 panel, member states can opt for an all-pervasive inclusion of IP categories in their retaliatory basket. However, at the time of actual retaliation, this paper proposes a “tiered suspension” 125 model, whereby certain kinds of IP goods/services are suspended before the others, so as to aid i) a relatively more objective determination of the harm that ensues from the retaliation; and ii) a more effective compliance inducing mechanism. Some aspects of this model are visually represented in Annexure B. Preference would be given to those IP works, in respect of which there already exists a “licensing” rate. These could be statutorily established rates under the various compulsory licensing provisions, or voluntary rates carved out by copyright collecting societies (such as rates for public performance of sound recordings), patent pools and the like or rates that are present in existing licensing arrangements. If working with this kind of IP does not yield any results within 3 months of the suspension, then the government permits the suspension of other works/inventions, for which there are no established royalty rates. Lastly, if the working of the second tier also for another three months (six months in total) does not yield desired results, the government permits the suspension of trademarks and geographical indications.

TRIPS suspension avoids all the problems with normal retaliation—and it solves the case by providing adequate compensation


Mitchell 2011 – PhD, University of Cambridge; LLM, Harvard University; Graduate Diploma in International Law, LLB (Hons.), B. Com. (Hons.), Melbourne, Australia; Associate Professor, Melbourne Law School (Andrew Mitchell and Constantine Salonidis, Journal of World Trade, 45.2: 457-488, “David's Sling: Cross-Agreement Retaliation in International Trade Disputes”, ProQuest)
Developed countries were the main advocates of the TRIPS Agreement, a system mainly designed to provide institutional protection of comparative advantage in technological innovation and the production of high-tech goods. Slater explains what a suspension of TRIPS obligations could entail in practice:

A retaliating government could, for example, amend its domestic copyright statute to stop providing national treatment ... to foreign authors. Alternatively, the government could stop providing methods for foreign right holders to enforce their intellectual property rights domestically. The retaliating government could also issue compulsory licenses on patented pharmaceuticals, allowing domestic companies to manufacture and sell generic versions of drugs still under patent protection "without the permission of the patent holder. Similar compulsory licenses could be issued for the reproduction of New York Times bestselling books, Hollywood movies, Microsoft computer software, and so on.

In principle, the suspension of protection of intellectual property (IP) rights under the TRIPS Agreement would not trigger the adverse welfare effects associated with trade retaliation. Increased availability of medicine, access to knowledge, entertainment products, and information services could produce a significant welfare-enhancing effect and '"compensate" for the loss of trade opportunities caused by the challenged protectionist measure'. Grosse Ruse-Khan highlights a more systemic welfare-enhancing effect of the suspension of TRIPS obligations:



[Cross-retaliation under TRIPS] has the potential to cause positive welfare effects if it is utilized to correct access-failures caused by over-protection or to temporarily increase policy space for adopting intellectual property protection responsive to the domestic comparative advantage in the innovationimitation ? aradigm .

WTO strength directly depends on plaintiffs’ willingness to use retaliatory measures—try or die for the CP and proves parties look to the plaintiff, not the defendant


Ruse-Khan 2008 – Senior Research Fellow, Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich; revised and updated version of separate papers presented at the 7th BIICL/IIEL WTO Conference in London, May 2007 and at the Inaugural Conference of the New Zealand Centre for International Economic Law in Wellington, December 2007 (4/14, Henning Grosse, Journal of International Economic Law 11(2), 313–364, “A PIRATE OF THE CARIBBEAN? THE ATTRACTIONS OF SUSPENDING TRIPS OBLIGATIONS”, doi:10.1093/jiel/jgn015)
According to Article 3.7 of the DSU, the central aim of the dispute settlement mechanism in the WTO is to ‘secure a positive solution to the dispute’ – if possible in form of a mutually acceptable solution which is equally consistent with the WTO Agreements. Article 3.7 DSU goes on and states that in the absence of a solution mutually accepted by the parties, ‘the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if they are found to be inconsistent with the provisions of the covered agreements’. In case the WTO Member concerned is unable or unwilling to withdraw the measure and further compensation cannot be agreed, the DSU foresees the option of (temporarily) suspending the application of concessions or other obligations under the WTO Agreements against the non-complying Member as the last resort. This ‘compelling reason to comply’ 61 with the decisions of the WTO dispute settlement apparatus has been pointed out as one of the key features of a mechanism which is considered to have ‘teeth’ in comparison to disputes resolution in other fora. 62 Compliance in the WTO thus seems to be enforceable. At the same time, one must keep in mind that in the WTO dispute settlement system ‘in essence, sanctions, just like compliance, must come from sovereign actions of the WTO’s Members’. 63 The perceived strength of the WTO system is therefore dependant on the willingness and ability of the complainant to use the DSU response mechanisms as well as the willingness and ability of the respondent to comply. Against this background, the effectiveness of the WTO’s last resort in the resolution of trade disputes the suspension of WTO concessions and other obligations in general and of IP protection under TRIPS in particular – depends on what is perceived as its objective. 60

Foregrounding IP retaliation as a remedy is key to broader WTO legitimacy


Basheer 2010 – Ministry of HRD Professor in Intellectual Property Law, NUJS, Kolkata (Shamnad, The Law and Development Review, 3.2, “Turning Trips on Its Head: An "IP Cross Retaliation" Model for Developing Countries”, DOI: 10.2202/1943-3867.1063)

From the above, it is clear that cross-retaliation is a more effective remedy for developing countries than traditional retaliation. Therefore, this ought to be made the main mode of retaliation, without countries having to go through the trouble of demonstrating each time why they cannot resort to “traditional retaliation” under the same agreement/sector. Given that the decks are stacked against developing countries in WTO dispute resolution, making it easier to avail of effective remedies such as cross-retaliation will go a long way towards ensuring the credibility and legitimacy of the WTO. 101 The Brazil example is illustrative in this regard. Despite the arbitrator’s finding that Brazil could “effectively” retaliate under normal traditional sectors, an IP cross retaliation would have proved a more optimal tool for inducing compliance, given the economic disparities 102 between these countries and the power of the IP lobbies 103 in the US. Paradoxically, at the stage of the adoption of the Dunkel draft (which was the first document to provide for cross-retaliation), a cross-retaliatory mechanism was perceived as furthering developed country interests. 104 Developing countries were concerned about obligations under TRIPS and the prospects of retaliation by developed countries. Since traditional retaliation for breach of intellectual property commitments would not have made sense (developing countries own very little intellectual property in developed countries), it was thought that developed countries would resort to cross-retaliation by suspending obligations in areas that mattered to developing countries such as agriculture, and textiles. Consequently, developing countries thought it beneficial to restrict the efficacy of cross-retaliation. 105 This might have accounted for the relegation of crossretaliation to the status of a mere secondary remedy.






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