As the United States begins high-stakes World Trade Organization talks with China about intellectual property and trade barrier disputes, private attorneys representing an alliance of hundreds of companies have logged nearly two years helping the government build its case.
Formal dispute settlement consultations between the two countries began in Geneva on June 4, following the United States' April 10 filings of formal requests to start the process...
The consultations are a World Trade Organization-mediated negotiation period that lasts at least 60 days. If the dispute isn't resolved, the complaining government can ask the WTO to appoint a panel, which is similar to litigation.
The panel's report, which becomes a ruling unless all WTO members reject it by consensus, may determine that one country has broken its WTO agreements and that it must conform to the trade rules. The Office of the U.S. Trade Representative estimates the panel process can last up to 18 months, particularly if the panel's report is appealed.
Private attorneys frequently act as the agency's informal research team, including in the current China disputes, said Eric H. Smith, managing partner of Washington-based Smith, Strong & Schlesinger, a copyright law boutique.
"The [trade representative's office] can't do all the legal work so they rely on the industry's law firms to help them prepare the cases," Smith said. "They make all their own decisions. We're helpmates to them."
Smith Strong and two Washington-based Greenberg Traurig lawyers work for the China Copyright Alliance, a group of six trade organizations representing trade groups in the creative industries. The alliance formed in 2005 to press the government to bring a WTO case against China.
Coalition members include global and U.S. groups: the Art Copyright Coalition; Association of American Publishers; International Federation of the Phonographic Industry (IFPI), a global recording industry alliance; the Independent Film & Television Alliance; the Motion Picture Association of America; and the Recording Industry Association of America.
In its WTO case, the United States seeks better Chinese enforcement of copyright and trademark laws and the lowering of Chinese trade barriers for books, music, videos and movies.
Besides gathering information about copyright and market-access violations against alliance members in China, the lawyers have worked closely with the trade representative's office for more than a year to prepare the cases, said Greenberg Traurig's James Bacchus, who represents the alliance and chairs the firm's global trade practice group.
"We're working in concert with the government and responding to the government's requests," Bacchus said. "We're supporting them."
That support includes everything from identifying potential claims to assembling evidence and framing arguments...
U.S. corporations stung by copyright infringement and piracy are investing in legal help to curb the problem. On behalf of their clients, the Bacchus team deciphered China's complex and opaque regulations and laws governing distribution and trading rights.
"We've had endless numbers of conference calls ... at all hours of the night and day with people in China to explain what kinds of information we needed," Bacchus said.
"The Chinese government is not quite as transparent as ours," he said.
Lobbying followed the information gathering and legal analysis. China Copyright Alliance's 2006 lobbying fees totaled $280,000 for Greenberg Traurig and $180,000 for Smith Strong, according to the nonprofit Center for Responsive Politics in Washington.
The firm's interaction with the trade representative's office is officially lobbying, but Bacchus said it's more of a symbiotic relationship. "As a practical matter, we're working side by side with U.S. lawyers in preparing these cases," he said.
The trade representative's office conducts its own independent legal research and analysis, but it does seek the input of private counsel, said spokesman Stephen Norton.
"If there's a case pending, the [office] certainly welcomes the input from legal counsel representing private interests," Norton said.
Despite the hefty lobbying fees, most of the lawyers' work is directly for the copyright alliance, said Bacchus and Smith.
The alliance includes hundreds of companies, yet there's still plenty of work for other lawyers. Andrew W. Shoyer, a Washington lawyer for Sidley Austin, said the firm is advising a private client about the WTO China matters. Shoyer said Sidley typically works with a company or trade association to develop claims, then with the trade representative lawyers who argue the case.
Unlike some other government agencies, the trade representative's office lacks overseas staff, so it appreciates the assistance of private industry when it comes to gathering facts, Shoyer said.
"Given the limitations the agency faces, the burden initially is on private stakeholders to bring the case to the government," Shoyer said. Sidley launched its WTO practice about a decade ago and has since staffed a Geneva office with 13 lawyers, policy advisers and trade analysts primarily dedicated to WTO dispute settlement.
IP: Lawyers, Lobbyists, & Money
Below is a short, interesting article from Law.com that demonstrates the political economy behind the USTR's recent actions against China on the intellectual property front. It turns out that there was quite a vast network helping the USTR bring this matter to fruition in the WTO:
