The West's WTO Hypocrisy on COVID-19 Meds?

♠ Posted by Emmanuel in Health,Intellectual Property,Trade at 2/16/2021 12:37:00 PM

Should intellectual property laws upheld by the WTO be waived during a COVID-19 pandemic?

I almost forgot to post this one, but it's better late than never, I guess. There have been endless allusions to the idea that, rich or poor, the countries of the world are all in this fight against COVID-19 together. However, when push comes to shove, it appears the reality of the matter is rather different: A few weeks ago, large developing countries put forth the idea at the WTO that intellectual property rights on COVID-19 medicines should be abrogated while a global pandemic is going on. 

Perhaps unsurprisingly if regrettably, European and American countries indicated not being willing to go along. Since a consensus would have been required for an IP waiver on COVID-19 medicines to come into effect at the WTO, this effort was admittedly a long shot from the start:

Wealthy nations [...] reiterated their opposition to a proposal to waive intellectual property rules for COVID-19 drugs, three trade sources said, despite pressure to make an exception to improve access to drugs for poorer countries. Supporters of the waiver say existing intellectual property (IP) rules create barriers on access to affordable medicines and vaccines and they want restrictions to be eased, as they were during the AIDS epidemic.

But opposition from the European Union, the United States and some other wealthy nations at a meeting on Friday, means the proposal set to go before the World Trade Organization’s (WTO) General Council next month is likely to fail.

“If rich countries prefer profits to life, they will kill it by tying it down in technicalities.” said a delegate supporting the motion who attended the closed-door meeting. The 164-member WTO body usually has to agree by consensus unless members agree to proceed to a vote, which is exceptional.

Populous developing countries India and later China pushed for lifting IP restrictions on COVID-19 medicines, although you have to wonder if they have competing commercial interests since they too have production capabilities in making these medicines should IP be waived. Then again, the current WTO head Ngozi Okonjo-Iweala (this article was written before she became its Director-General) also supported the initiative:

The proposal was first raised by India and South Africa in October. Since then, China, which has five COVID-19 vaccine candidates in late-stage trials, has voiced its support, as have dozens of other WTO members, mostly from developing countries.

The World Health Organization says it supports tackling barriers to access to COVID-19 medicines, as does Nigeria’s Ngozi Okonjo-Iweala, selected by a panel to be the WTO’s next director-general.

You have to wonder though if some developing countries might want to declare medical emergencies that compel them to waive such IP on COVID-19 medicines under "compulsory licensing" procedures allowed by the WTO:

In 2001 — at the height of the AIDS crisis and under pressure from governments whose citizens were dying because they could not afford life-saving medicines — the World Trade Organization waded into the battle between intellectual property and public health. The resulting Doha Declaration ruled that the Agreement on Trade-Related Aspects of Intellectual Property Rights “should not prevent members from taking measures to protect public health.”

It confirmed that governments retained several mechanisms for guaranteeing affordable access to medicines, including issuing compulsory licenses, which allow them to use an invention without the patent holder’s consent in extraordinary circumstances. This applies not only to new drugs but also to existing medications whose patents have been extended because pharmaceutical companies made minor changes to formulations or discovered a new use for the medication.

Given the uncertainty over access to treatments for COVID-19, several countries have been laying the legislative groundwork to issue compulsory licenses for products that patent holders refuse to make accessible.

I think developing countries will first observe whether they can avail of more COVID-19 medicines they believe they need under the COVAX initiative. If that avenue proves unfruitful, then don't be surprised to see "compulsory licensing" claims start appearing. Make no mistake that our world remains riven by North-South divides even amidst a global pandemic. 

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Did PRC Cave In to Trump on Knowledge Transfer?

♠ Posted by Emmanuel in China,Intellectual Property,Trade at 3/15/2019 12:20:00 PM

All hail great American leader Trump! Sort of.

One of the main grievances the United States has had about Chinese trade practices concerns requiring knowledge transfer to domestic firms. To Westerners, such provisions are increasingly questionable intrusions on their intellectual property rights at a time when PRC firms are not so far behind their developed-world counterparts or even surpass their knowledge in certain respects like in 5G.

It is certainly up for debate whether China or the United States is being hurt the most amid Trump's ongoing tariff-slapping frenzy, but that the Chinese are eager to have these tariffs removed is beyond any doubt. We recently received evidence of this assertion with their "legislature" quickly passing a law watering down these technology transfer requirements:

The National People's Congress voted 2,929 in favour of the law -- with eight against and eight abstentions -- barely three months after a first draft was debated, an unusually quick turnaround for the legislature, which meets once a year. The move comes as US and Chinese negotiators hold complex talks aimed at resolving a months-long trade war that has pounded businesses with tariffs on $360 billion in two-way commerce.

Although the specifics are not yet definitive, the rough outlines appear to be like so:

China will also amend its intellectual property law and "introduce a punitive damages mechanism to ensure that all infringements will be seriously dealt with", Chinese Premier Li Keqiang told reporters at the end of the parliament's two-week session. The changes will "ensure violators have no place to hide", he said. 

Under the bill, foreign investors will enjoy the same privileges as Chinese companies in most sectors, except those placed on "negative lists", officials say.

That said, foreign investors are still, rightly, more concerned with how these IP law changes are implemented than what is written on paper:

Tim Stratford, chairman of the American Chamber of Commerce in China, said "the last minute efforts are appreciated". But, he added, the changes "only address a small slice of the overall set of concerns our members have about the uneven playing field foreign companies encounter in China".

The chamber was concerned about vague language in provisions that allowed local governments to expropriate investments that "harm public interest" and the inability to appeal against the outcome of national security reviews.

Jacob Parker, Beijing-based vice president at the US-China Business Council, welcomed the "positive language" in the bill but added that "real investment on the ground will depend on how narrowly tailored those negative lists are going forward".

Businesses are still concerned that industry-specific laws and local administrative approvals may impede full market access despite provisions in the negative list.

As always, implementation is going to be more important to foreign investors as to whether their longstanding IP concerns are met or otherwise. And, I suspect this story will continue long after Trump has departed the scene. 

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Flattery? The Fake Chinese Land Rover Evoque

♠ Posted by Emmanuel in China,Intellectual Property at 2/01/2015 01:30:00 AM

If the man on the street can't tell the difference, why not pay less than a third for the fake?

The previous post on Chinese authorities "cracking down" on Alibaba for allegedly being lenient towards intellectual property violators jogged my memory about this post I planned to write but forgot somewhere down the line. The Land Rover Evoque has been a hit sports-utility vehicle (SUV) the world over with its stylish appearance and the prestigious Land Rover badge--including in China. It was probably only a matter of time, then, that someone thought of making a nearly-indistiguishable copy. In the image above, which is the real Evoque and which is the fake? (It's the one below.)

If imitation is the sincerest form of flattery, the Chinese are very sincere indeed. Anyway, on to the story:

Land Rover is weighing up its options in regards to the new Landwind X7 SUV, which appears to be a very close copy of the Range Rover Evoque, one of Land Rover's best-selling models. The Landwind X7 had its global debut at the 2014 Guangzhou Auto Show last week and Land Rover's most senior employee, CEO Ralph Speth, is none too pleased. "The fact that this kind of copying is ongoing in China is very disappointing," Land Rover's CEO told UK-based Autocar.

Although it's unlikely much will be achieved within China, where the Landwind X7 is now on sale for about one third the price of a Chinese-built Evoque, Speth is not going down without a fight to protect the company's intellectual property (IP). "The simple principle is that it is not something that should happen; the intellectual property is owned by Jaguar Land Rover, and if you break that IP then you are in breach of international regulations that apply around the world," stated Speth.

The funny thing is, there are no real remedial actions Jaguar-Land Rover (JLR) can take in present-day China to contest their intellectual property rights. Where is the State Administration for Industry and Commerce (SAIC) in this case? An oddity is that JLR has a deal with Chinese automaker Chery to build copies there. Would Chery be better able to enforce JLR's IP rights? If not, JLR's best hope may be to limit export sales of the knock-offs absent any real action it can take in the PRC:

Legal action is unlikely, and virtually impossible within China, as most major companies are have partial government-ownership. The best Land Rover can hope for is that the vehicle is not exported to one of the Evoque's major markets.

The plot looks set to thicken however, as Land Rover has formed an alliance with Chery Automobile in China, which means the Range Rover Evoque is also built on the Chinese mainland by said company. Essentially, Chinese motorists can choose to buy the Landwind X7 for around $A23,000 (120,000 yuan), or the Range Rover Evoque for roughly $A76,000 (400,000 yuan), both of which look virtually identical "I will talk to our officials and I will talk to our partners at Chery to find a way around this situation," the Land Rover CEO said in relation to both cars being offered in China.

Lip service aside, I do not think the Chinese are making any strides in enforcing intellectual property at all. Sure the PRC can bash Alibaba for political reasons, but I do not really think this represents a crackdown on fakes given the ready availability of knock-off cars and virtually everything else on the streets of major cities.  

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UKR-RUS Collateral Damage: Rutracker.org is Down

♠ Posted by Emmanuel in Intellectual Property,Russia,Underground Economy at 4/07/2014 02:55:00 AM

Even the mightiest go down sometimes.

Longtime readers will know I have an interest in torrent sites as examples of the vast possibilities for intellectual property violation in the Internet age. Unsurprisingly, the United States--strongest enforcers of IP worldwide due to its creative industries' vast output--has lobbied governments the world over to shut down these torrent sites. I've previously written about the travails of Demonoid, which, at its height, was the world's top private tracker site. Despite moving its servers around the world and using all sorts of top-level domains to escape Uncle Sam, it was eventually brought down. (The Demonoid story would make a great true-to-life thriller, actually.) You know, Demonoid has come back up again, but the reborn site's content is but a shadow of what it had at its peak.

Thus, my theory of torrent site longevity is now largely based on a single metric: How insulated is the site from American pressure to discontinue intellectual property "theft"? By this measure, my pick would be Rutracker.org, a Russia-based site whose authenticity is undoubted since its text is in Cyrillic. Russia being the land of Edward Snowden's asylum and Crimean-invading macho men, you can bet your bottom ruble that Russian authorities would be the among the least likely to crack down on this torrent site at the behest of Westerners. Ironically given its activities, Rutracker.org has even trademarked its name [!]

That's not to say Rutracker.org is invulnerable. For a few weeks now, Russian sites have been hit by DDOS attacks, presumably over their annexation of the Crimean peninsula. I guess it was inevitable that these attacks would hit Rutracker.org, and that has now happened. Ukranian news sources further suggest that the attacks are emanating from Ukraine. Whatever the source, Rutracker.org is definitely down as Russian media confirms.

A lot of the highbrow (no porn, please) content that Demonoid used to track has since moved to Rutracker.org. Ultimately, I suspect that the vast majority of Rutracker.org users are not Russian. The only real reason folks use the site is that Russia appears immune to Western pressure to disband Rutracker.org. Then again, if the Russians figure out that it's mostly Westerners using the site, they probably may be less averse to shutting it down.

At any rate, expect Rutracker. org to be among the last torrent sites standing after the current DDOS attack blows over.

UPDATE: Rutracker.org is back up as of 1500 GMT, 4/7/20214

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The PRC-India Trade Imbalance, c/o 'Shamsung'

♠ Posted by Emmanuel in China,India,Intellectual Property,Trade at 2/12/2014 10:51:00 AM

Spot the fakery

When it comes to globalized commodities, you probably cannot outdo Chinese no-name electronics as PRC-sourced fakes are the wares of street hawkers the world over. Hence, the 'Shamsung':

Made-in-China products are also flooding into Indian markets served mainly by small and midsize local companies [read: mom-and-pop shops given limited inroads made by retail trade liberalization]. The deluge of Chinese imports is beginning to further strain a tense bilateral relationship, which is traditionally prickly because of a territorial dispute.

Indian consumers are for now embracing cut-price Chinese offerings. That may not be the case if they find themselves out of work because of relentless competition from low-cost manufacturers over the border.

Take a walk through an Indian market and the scale of the issue becomes clear. Fake Chinese cellphones are clearly visible in the sprawling black markets of Mumbai, the country's biggest commercial center. Legions of vendors spend their days selling counterfeit Samsung Electronics and Taiwan's HTC phones. Cheaper look-alikes can also be bought with little fuss. Hordes of eager shoppers bustle through the warren of cramped shops, haggling over prices.

That's at a local level. At the international level, it all adds up to an overwhelming trade balance in favor of China over India. Where have we heard this story before?

Indian companies typically import nonbrand products from China and sell them in India at extremely low prices, a senior executive at a Japanese appliance maker said. India's smartphone market is a microcosm of what is going on at a macro level. The country runs a chronic and growing trade deficit with China.

In the fiscal year through March 2013, India exported some $13.5 billion worth of goods to China and imported $52.2 billion's worth. The government in New Delhi wants to narrow the trade gap. Consumers in India benefit from the bargains, but the trade imbalance is a source of economic tension between the countries.

It's funny how the Chinese are now aping Koreans when the latter were famous for making fake European leather goods for the longest time. Meanwhile, Chinese firms don't particularly care who they are copying as long as they are able to sell their fakes. If imitation is the sincerest form of flattery, then South Korea has gone a long way. At any rate, the PRC-India trade imbalance isn't exactly improving as a result.

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US-Led Anti-Counterfeiting Trade Agreement is Vile

♠ Posted by Emmanuel in Intellectual Property,Internet Governance,Trade at 7/28/2010 08:03:00 PM

If anything else, you must admit that the Yanquis are persistent. With the coming of the so-called information age, a concern which has been near and dear to many US firms has been intellectual property rights enforcement (henceforth IP enforcement). The essence of the American concern is simple: with a modicum of effort online, it is not particularly difficult to "pirate" books, films, music, shows, and video games. For instance, the Recording Industry Association of America (RIAA) cites an Innovation Policy Institute study that claims losses to the recording industry amount to some $12.5 billion worldwide from physical and online music piracy.

Aside from not being particularly keen on the apparently endless proliferation of song-and-dance bimbettes, gangsta rappers, and other exemplars of high American culture, a more serious concern of mine is the method behind these studies. For instance, the Innovation and Policy Institute makes some fairly heroic (and obviously self-supporting) assumptions. First, they claim that 20% of those currently pirating music would pay for it without the benefit of substantially justifying where this figure comes from. Second, they blithely assume that these would-be converts to legal downloads would be willing to pay an assumed "Legitimate World and U.S on-line price of $0.99 per downloaded song" (see table 2). Again, there's the implicitly Amerocentric assumption that international music listeners would be willing to pay that price when (a) most physical music products are marketed at lower prices worldwide and (b) the price quoted is more reminiscent of that being charged by US online music stores like Apple iTunes.

Now, the Anti-Counterfeiting Trade Agreement (ACTA) is the latest in a long line of US-led efforts to preserve software rents largely at the behest of media titans represented by RIAA and the like. ACTA is not a trade agreement in the conventional understanding as it deals solely with IP issues. While essentially all of the counterparties involved in negotiating ACTA are developed country peers of the US, the key thing to remember is that, when enforced, ACTA would operate outside of existing global bodies dealing with intellectual property rights. Why is this important? Being the acknowledged architect of many international institutions, a recurrent criticism has been that of America continually devising more regimes if existing regimes are not deemed welcoming enough to US interests. For instance, while there already was a World Intellectual Property Organization (WIPO) prior to the creation of the WTO, the US lobbied hard for the inclusion of Trade-Related Intellectual Property Rights (TRIPS) since America didn't deem the WIPO stringent enough on enforcing US claims worldwide. Even arch-globalizers like Jagdish Bhagwati and Martin Wolf have criticized this excessive stringency on IP (more on this in a minute), and highly controversial applications are too numerous to list here alike the case of access to drugs for HIV-AIDS sufferers in the Global South.

In IPE, there is a phenomenon called "forum shopping" in which countries attempt to gain traction on pet issues by scouring international organizations for the most favourable legal opinion. Given its diminishing though still substantial power in agenda setting, the US has not only forum shopping but also forum creating abilities. That is, it shows little compunction in, well, dumping international organizations it itself often created if they prove to be insufficient in enforcing American interests. Perceptions of still-rampant piracy by RIAA and the like are now spurring the US government to (again) seek something via ACTA which is even more stringent than WTO-TRIPS (which, in turn, effectively superseded WIPO).

Development observers should particularly note that many developing countries are already wary of ACTA's implications. The US hopes that signing on developed countries would ratchet pressure on developing countries to do the same. That is, as developed countries adopt stricter regimes, they will feel unduly compromised by those who don't and demand that they do so. The South Centre has an informative primer on how developing countries, especially the likes of Brazil and India which have always been active players on global governance issues, are looking warily at this latest IP gimmick in a long line of IP gimmicks:

Though at present ACTA is being negotiated only between 11 parties, it is of concern for the developing countries because they could be required to enforce ACTA provisions through cross-referencing in bilateral free trade agreements with developed countries and in WTO accession agreements. The countries that are negotiating ACTA accounts for about 70 per cent of world trade. Hence, application of TRIPS plus enforcement standards in these countries [like ACTA] could lead to targeting products from developing countries as counterfeit goods, since the ACTA envisages any form of IPR infringement as counterfeiting.

This is illustrated by requests for detaining shipments of soymeal from Argentina in European ports on the request of Monsanto Corporation on the ground that the soymeal contained a gene over which Monsanto has a patent in Europe, though it did not have a patent in Argentina where the soymeal was produced [see here].

Further, the broad scope of border measures under ACTA that also require customs seizures of goods in transit can have a severe impact on the trade of developing countries. This can also impede the ability of developing countries to use the public health related flexibilities under the TRIPS Agreement that would enable them to import affordable generic medicines for ensuring access to medicines for their population. This has been shown in the seizure of genetic drugs produced legitimately in India when they were in transit in European airports (especially in the Netherlands) when these medicines were in transit on the way to Brazil, Africa, etc.

ACTA is at the centre of the TRIPS plus IP enforcement agenda that is being pushed by developed countries through various multilateral and bilateral forums such as the World Customs Organization (WCO), the Universal Postal Union (UPU), INTERPOL, WHO-IMPACT, and bilateral FTAs and EPAs. The provisions in ACTA would tend to set the template for TRIPS plus IP enforcement provisions that are being pushed through these various channels.

Therefore, developing countries should question the legitimacy of the ACTA negotiations and also highlight in multilateral forums how such negotiations are undermining the existing balance between IP and public policy issues in respect of food security, access to medicines and access to knowledge.

Developing countries should also closely examine the nature of institutional relationship between ACTA and multilateral organizations like WIPO and WTO, with the objective of ensuring that such institutional relations do not promote an unbalanced IP enforcement agenda through technical and legislative assistance provided by these organizations. Moreover, there is a need for awareness of this issue to be developed in the capitals and greater dialogue among developing countries on this issue beyond the ambit of the Geneva based missions. This would be particularly useful in helping developing countries being better informed about the grand strategy behind IP enforcement in bilateral negotiations with developed countries.

Supporting trade is already such a difficult cause. Many third world folks like me are not insuperably opposed to trade, but the US sure makes it difficult to argue for trade when the deck is often stacked so unfavourably against poor countries. In the words of one of America's most cherished entertainers, "Oops I Did It Again"--and you can bet the US is not that innocent in the trade realm.

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N Korea @ World Cup: Why Pirated Tape Delay?

♠ Posted by Emmanuel in Intellectual Property,Sports at 6/16/2010 12:08:00 AM

Well I'll be damned: contrary to almost everyone's expectations, North Korea fought toe to toe with mighty Brazil in their World Cup fixture. Up to the 55th minute, a stingy North Korean defence (OK, so they often kept five back, but I'd have done the same against Brazil) held things to nil-nil. Eventually, however, the laudable North Koreans tired somewhat and the genius of Brazilian football shone through. Still, Ji Yun-nam pulled one back with a brilliant goal near the match's end, reflecting the high-spirited play of North Korea.

It's a pity that the folks at home will have to make do with watching North Korea's valiant effort only a day after the rest of the world did. You see, South Korea holds the rights to broadcast this event in the Korean peninsula. What's more, the rather cash-strapped DPRK hasn't negotiated the rights to show World Cup matches in the Communist state. Additionally, the suspected torpedoing of a South Korean vessel by the North Koreans hasn't exactly been a reflection of sunshine policy. Hence, it should be of no surprise that North Korean state broadcasters stand accused of pirating South Korea's video feed.

On top of likely stealing the video feed, it's even being delayed to ensure the correct impression is made on the North Korean public. First, there may have been political messages in the crowd inadvertently flashed about the plight of North Korea. Second, the scoreline may need to be massaged to create the impression of "victory," howsoever defined. From the WSJ:

North Korea's TV station showed the opening game of the World Cup on Saturday though it didn't have the right to do so, and South Korea's official tournament broadcaster is trying to figure out if its signal was pirated for viewing in the North. State-run North Korea Central Broadcasting showed a taped replay of the South Africa-Mexico game, but the screen was enlarged to remove graphic elements [channel logos] from the picture, making it difficult to tell whether the station recorded a transmission from South Korea or China.

North Korea illegally used some South Korean broadcasts of the 2002 World Cup, but in 2006 it made an arrangement to obtain TV coverage legally from a South Korean network. For this year's tournament, the South Korean TV network SBS, which purchased broadcast rights for the Korean peninsula from World Cup organizer FIFA, held two meetings with North Korea's state-run broadcaster to pick up its coverage. But the two sides didn't come to an agreement, says Yang Chul-hoon, chief of the inter-Korean department at SBS. The network is now studying the video.

North Korea's soccer team qualified for the World Cup this year for the first time since 1966, when it reached the quarterfinals. But analysts say the country is unlikely to show live broadcasts of its own team—-legally obtained or not-—because of fears by its authoritarian government that the team will perform poorly or the prospect that protesters who dislike the North will be given screen time...

North Korea's coach, Kim Jong Hun, said during a news conference at the Ellis Park stadium in Johannesburg, where the team will play Tuesday, that the match will be broadcast in his country. "I am not involved in broadcast, but it will probably be shown on TV," he added.

Now that's what I call image management--albeit internal. But hey, if you're not a WTO member, do intellectual property rights really matter that much? To expand on Pierre-Joseph Proudhon, intellectual property is theft. If you're into the most trivial of trivia, though, the DPRK is a World Intellectual Property Organization (WIPO) member.

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