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EIPIN Windsor: Justin Hughes on China v. the United States in the WTO

The most interesting of last weekend's talk was that given by Prof. Justin Hughes, director of the intellectual property program at Cardozo School of Law, New York, on the ongoing China v. US case in the WTO.

Now, when an old China hand sees the words "China v. US" their mind is suddenly filled with the images of jet-fighters, submarines and missiles swooshing into battle seen on a thousand newspaper and magazine covers on a thousand Chinese newstands, but the real China v. USA is a somewhat more sedate affair. The first of the claims that the US is bringing against China is that there is insufficient protection for trademarks and copyright, this is substantiated by the claims that:

- is not as a matter of course removing seized counterfeit goods from the channels of commerce

- that the fact that copyright is not awarded to works until they have been passed by the censor leaves counterfeiters free to copy those which have not yet been passed

- that the monetary value of counterfeit goods that must be passed before criminal action may be taken are excessively high

The second claim is that China places unecessary restrictions on market access for US companies trying to market products protected by copyright or trademarks, thus encouraging counterfeiters to fill the gap left by the US firms.

As Prof. Hughes pointed out, the Chinese are likely to argue that TRIPS only requires them to make the same effort in enforcing IP laws as they make in other areas of law enforcement - and law enforcement in China is bad generally. Prof. Hughes also noted that it is unlikely that either side will 'win' this case, as WTO cases almost never result in a clear-cut decision in favour of one party, but it is very difficult to see what the result of this case will be as there is little in the way of case law.

I have two observations to make from this. The first is that in future countries should not be afraid of bringing cases soon after the creation of an agreement to test its provisions, in this way when countries whose involvement in the structure o f the agreement is likely to be problematic join it there will be more clarity as to what exactly it is that they are signing up to. The second is that it was unwise of China to sign up to TRIPS as a developed country, and future third-world signatories should also avoid this as they will simply be leaving themselves open to this kind of action.

EIPIN Windsor: Counterfeiting and China - does a bias exist against China in customs enforcement?

Of course, as the subject of last weekend's symposium was counterfeiting the shadow of counterfeiting in China definitely loomed over the proceedings. Time upon time we were reminded that the main source for counterfeit goods entering the UK is China. The figures given by John Taylor, director-general of TAXUD, a European tax and customs body, would appear to speak for themselves: 79% of cases of seizures of counterfeit goods entering the EU and 81% of cases of seizure entering the US are from China.

But how do these figures stand up to close inspection? Mr Taylor did say that 70% of overall articles seized were packs of fake cigarettes seized in the post from China - so the actual value of counterfeit goods received from China may be somewhat less than 79% as postal seizures will be much smaller than container-sized shipments.

Is there a bias towards inspecting cargo coming from China? Whilst it's arguable that customs inspectors target containers coming from China, the way in which many of these containers are so tightly packed that it is often impossible to re-pack them also acts as a disincentive, so it is hard to say whether bias exists.

It should also be mentioned that the seizure process requires inspectors to notify the rights holders who will then come and identify whether the goods are counterfeit or not. It is therefore likely that genuine articles which have been stolen or accidentally dispatched have been declared counterfeit by the rights holders to avoid embarrassment - but it is hard to see how this would create a bias against China.

Most of all, if counterfeiters choose China as a base for their activities, this may well be for the same reason that many manufacturers do - low labour costs, and thus the proportion of counterfeit seizure cases coming from China may be not that much greater than the proportion of genuine articles imported from China - but this is difficult to know.

EIPIN Windsor: Counterfeit scare-mongering which might actually be real

Last weekend was the final of this year's EIPIN (European Intellectual Property Institutes Network) symposiums*, and was held this year in lovely surroundings of the former royal residences at Cumberland Lodge near Runnymede. This time the main emphasis was on criminal enforcement of IP, and the industry folks were out in full force. Here's some snippets from a talk given by John Anderson of the Global Ant-Counterfeiting Group:

- Counterfeiting caused the Paris air disaster


- Counterfeiting supported the 1993 WTC bombings

- Counterfeiting means that toys containing dangerous materials are being imported into the west

- Counterfeiting may be costing the world economy between 500 and 1000 billion US dollars a year

- Counterfeiting is connected to drugs, gun-running, people-trafficking, and pornography

Of course, the criminal enforcement people were right behind this with their own spin on things:

- Counterfeiting and piracy are big problems

- We don't know how big

- We need more resources to find out

- But we're sure they're big problems

Now, it would be very easy to dismiss all this as scare-mongering by industry and law-enforcement lobbyists, but these suppositions should be examined in turn to see which actually hold any water.

Firstly the implication that counterfeiting is funding terrorism. The only instance of an actually internationally recognised terrorist organisation receiving funding from counterfeiting was the IRA, and this only during the period after funding from NORAID and Colonel Gaddafi began to dry up. It should also be noted that the IRA has always straddled the line between organised crime and political insurgency and it should not surprise anyone that this was the case. Whilst it may be true that some of the men involved in the 1993 WTC bombings did work selling counterfeit T-shirts on Canal Street, this is a long way from showing that the bombings were even partly funded by counterfeiting.

On the other hand, the Italian Mafia has long been known to be involved in piracy and counterfeiting, and whereas the IRA might have been a terrorist organisation which was close to being simply a criminal one, the Mafia has not been above using terror to achieve political gains either. The fact that counterfeit goods are often found along with pornography, drugs, guns, and are often touted on the streets by illegal immigrants shows that the main thing which connects all of them is smuggling by criminal gangs. This is not to say that preventing one would prevent the others, but that the success of one may promote the success of the others. At the very least there is something of a connection.

On the matter of counterfeit parts causing accidents, this should not be overly exaggerated. The Concorde crash was caused by an 'unauthorised' component falling off another aircraft and exploding the tyres of the Concorde, puncturing the fuel tank and causing it to explode - but the tyres had exploded many times before. The fact that the part which punctured the tyres was 'unauthorised' may have had absolutely nothing to do with the series of events that caused the accident. On a more general note, though, counterfeit parts do cause accidents, the failure of counterfeit car brake disks being a prime example, and this is a real concern.

That counterfeit products may contain harmful substances should surprise no-one, but as last year's Mattel recalls showed, genuine articles may also contain harmful substances.

Turning to how big this problem might actually be, the one thing that struck me as I listened to the speakers is that there is little in the way of accurate figures to measure this by. Whilst the man from the OECD put the figure as 'up to 200 billion', there is little in the way of solid evidence to base this on and it is the result of much estimation and guess-work. So whilst it may even be as high as the figures that John Anderson gave (some 7% of world trade), it might also be a lot less - and is it really worth spending the money to find out?

At any rate, whilst we may not be in danger of being murdered in our beds by counterfeiters, it is a problem which requires some kind of investment to address it.

* The second-to-last was in Strasbourg - long story short: Europe needs to get its stuff together and setup a real European patent court. Beautiful city by the way.

Fear of a jasmine flower . . .

I spoke on the phone to a very good friend of mine in Shanghai today, asking whether he had heard from a government official aquaintance of ours recently he demured and said simply that he had heard from him, but that "Nearly he first thing he said was 'Everyone knows that Tibet is part of China' - how are you supposed to have a discussion with someone like that? Even if you don't care about Tibet". I had been hoping that the stridently nationalistic tone of some of the headlines in the Chinese press were not actually representative of the views of the wider public, but my friend went on to say that "Most foreigners have given up talking with locals where they might be heard by others about Tibet or Taiwan - anyway, what can you say?".

Now, whenever examining a situation like this you still need to filter out the usual ex-pat paranoia, but the mood of national victimhood and nationalistic resentment seems much more elevated than I can ever remember it being - even compared to that during the anti-Japanese disturbances of 2005. Any western protests, any western boycott, any resolution or speech comdemning recent events in Tibet - none of them will be heard by the ordinary Chinese people as anything but a continuation of western oppression. This is, of course, no reason not to make speeches, pass resolutions or even to boycott events.

Anyway, I had all this in mind when I read this piece by Adam Minter on a performance of Jasmine Flowers (茉莉花) he heard at recent concert -

Like many foreigners in China, I have struggled over the last several weeks to square my affection for this complex country and culture with the painful news that continues to be made in Tibet and West China. I make no excuses for what has happened out West. At the same time, though, I cannot deny that last night’s concert represents, in some small way, the strides made in China over the last thirty (nay, one hundred?) years, as well the issues that are still to be resolved and forgiven. I feel no shame in admitting that I continue to struggle with those contradictions.

Most of the Chinese I have spoken to have expressed the opinion that those who opposed the torch relay and who protest the events in Tibet are doing so out of ignorance and hatred of China. What more can one do to convince people this is not the case?All I can say is that I lived in mainland China for five years as well as living in Taiwan for one year, that I still have friends in China with whom I stay in touch, that I have a great liking for Chinese culture and think the Chinese lifestyle superior to the British in many respects, that I have a love for the Chinese language and many great memories of my time there. That I found the government there oppressive is the reason for my opposition to the CCP - not some imagined hatred of China.

Fear of a 1920's composer . . .

Brilliant comment from Paper Republic's Eric Abrahamsen on seeing a recent Chinese performance of Puccini's Turandot:

Ping, one of the emperor’s three ministers, stands forward to lament, “O China, o China, che or sussulti e trasecoli inquieta” ("O China, O China, now always startled and aghast, restless"), and what comes up on the Chinese subtitle screen? “O World, O World, now always startled and aghast…”

The simple impossibility of allowing any criticism of China has become such a drag on discourse between east and west as to be unbelievable. No doubt by now the whole Carrefour boycott has its own Wikipedia entry. What can one say in such circumstances?

How To Travel Fleming Fashion

Traipsing round tourist attractions is hardly my idea of travel, so if I ever make it over to the land of the rising sun I thoroughly intend to follow the Fleming plan:

“With only three days in Japan, I decided to be totally ruthless,” he wrote. “No politicians, museums, temples, Imperial palaces or tea ceremonies... I wanted to explore Ginza, have the most luxurious Japanese bath, spend an evening with geishas, take a day trip into the country, eat large quantities of raw fish, for which I have a weakness, and ascertain whether saké was truly alcoholic or not.”

The educated view from China

The internet super-soaker fight that is going on right now between those who support and oppose the Beijing olympic games may have lead many to believe that the average Chinese person is one hundred percent committed to Chinese unity and has no doubts as the righteousness of the cause. In reality I found that this kind of certainty is something that you only really find amoungst people of university-going age and of limited real-life experience, but that others are equally committed to Chinese unity but with a more nuanced outlook on the situation. This piece by regular Taipei Times columnist Richard Halloran reflects this complexity, money quote:

The editor of a Chinese trade magazine sipped her tea one afternoon several years ago in a Shanghai tea shop and said: “I think Taiwan should be part of China, but I don’t think it’s worth fighting over.” She went on: “But if we give up Taiwan, then Tibet will try to break away and we will have separatists among the Uighurs in western China and among the Mongols in Inner Mongolia and the Koreans in Manchuria.”

She lamented: “If we let them all go, what will happen to my country?”

Balanced and fair reportage from the China Daily

Tired of the western media deceiving you with its lying ways? How's about some real-to-god truth for a change! Here's the China Daily explaining why example people in the west should be ashamed for celebrating the work of Leni Riefenstahl - obviously the exposition of her work can only be because we westerners approve of it. Don't like that? How about learning about how Paris literally slapped itself in the face last monday. Hear the words of truth:

We Chinese translate France into "fa guo", which literally means a country that honors the rule of law. The translation itself shows Chinese respect for that country. However, from the joy of headline stories, the editors, reporters and lawmakers who are educated by the French civilization suddenly lost ability to tell right from wrong, and chose adamantly to side with the law-breakers and the criminals.

Of course, some would say that the fa in fa guo (法国) is just a shortening of fa lan xi (法兰西),the Chinese transliteration of France - similarly 英 being from 英格兰, 美 being from 美利加, 德 being from 德意志 and so on - but those are people brainwashed by western media bias.

It's a pity that people in the west don't get the real story, here is the China Daily bravely telling us first that theocracy has lost its roots in Tibet, and then how the people in Tibet are all following the Dalai lama - makes perfect sense doesn't it?

Why don't western writers show the kind of brilliant logic which allows columnist Li Xing to start an opinion piece with this . . .

There is no way we can liken the singing competition on China Central Television to Fox TV's popular American Idol show.

. . . and finish it with this . . .

It is futile for some people in the West to try to break the close bonds between the multi-ethnic groups in China.

And whilst western newspapers waste column inches on subjects like the sub-prime motagage problem, the Iraq war, the democratic convention, global warming, global food shortages and other meaningless topics, you can always trust the China Daily to give pride of place on its front page to a fascinating piece of investigative journalism like this:

Hu has close look at Hainan farms

Before attending the annual meeting of the Boao Forum for Asia, which opens tomorrow in the southern province of Hainan, President Hu Jintao inspected farms of the Li ethnic group in the island's southernmost region early this week and got to know the concerns of villagers firsthand.

Hu inquired about farmers' lives and learned from them the difficulties they faced.

Huang Zhengguang, a farmer who has been growing cowpea and other high-yield vegetables in the Ledong Li ethnic autonomous county, told the president of his worries.

"Fertilizer prices have gone up rapidly and it is not easy to buy diesel in the market," Huang said.

"I understand your concerns," Hu said. "The government will solve your difficulties soon."

See? The news you want when you want it!

And the response . . . . .

I had feared that the attempts at torch grabbing and scuffling with police might have sullied the protests in the eyes of the British public, but it seems that the reaction has been fairly positive. Meantime the Chinese have responded in predictable fashion, arguing that it was a small minority of people following 'Tibet independence forces'. I would say that from the look of the Chinese flag weilding, armbanded fen qing-type 'security' that the Chinese embassy had arranged to accompany the flag that the real foreign-influenced prescence was not the people who objected their streets being used for a CCP PR stunt. The scandal surrounding the blue-suited Chinese toughs accompanying the flag has hardly been good publicity for the Chinese government either.

What East Enders think of the Chinese government

I attended a demonstration for the first time today, luckily I didn't have to go far as it was taking place on the street right outside where I live. Yes, the vast PR exercise for an autocracy that is the Beijing olympic torch relay reached London today, with its route through the city taking it along the Mile End Road. The protests were largely peaceful, although the odd egg was thrown, but the people of London definitely got their point across. If the organisers of the games had hoped for good headlines from this stunt, those hopes were most definitely dashed today - and quite right too!

The Chinese sense of humour

Saw this mock-up of a copy of the People's Daily overseas edition on the Yahoo! China Rises blog.

Seems that due to a wormhole forming in space/time an edition of this newspaper leaked into our dimension from a world in which China can test nuclear weapons in San Francisco, shoot and kill the Dalai Lama, bomb the Pentagon and build 'patriotic military bases' on the moon. It is also a world where Chinese basketball star Yao Ming can lead the Houston Rockets to the championship, one where Wen Jia Bao can visit Taiwanese provincial governor Ma Yingjiu (no doubt crossing the Taiwan Strait bridge pictured in the corner on his way there), a world where China has an aircraft carrier, and where the department of education rejects formalism and cancels all degree-level courses in Chinese universities. It is the world that exists in the head of the average Chinese university fen qing, and will never exist anywhere else.

Snapshot of the motherland

From a piece in today's Times on the decline of TV chef Delia Smith's cookery:

The most upsetting aspect of the ongoing Delia-ruination, however, is that - much like Christ before her - she is actually being punished for the greater crimes of mankind. Let's face it, as a nation, we are eating far worse than Delia's tinned-mince-and-frozen-mash shepherd's pie. Infinitesimally worse. Almost unfathomably worse. Britain exists on a diet of garlic bread, Space Raider crisps and banana Nesquik. However, we seem to believe that if we eat Greggs's cheese'n'onion slices but watch Jamie throw together a mackerel and endive salad, we are, somehow, nutritionally elevated above rats. This is a belief that echoes the childhood theories of my friend John, who believed that, if he ate an apple after he ate a Big Mac, the fruit would, somehow, “soak up” the fat.

"garlic bread, Space Raider crisps and banana Nesquik" - what's wrong with that?

Don't be so BBC

I was reading down a comments page on the now unblocked BBC Chinese website when I came across a commenter using the phrase "不要那么BBC" ("Don't be so BBC"). I had no idea what was meant by this until it came to me whilst reading this article from today's Times entitled "How I became the most hated woman in China". Noting that western media has become synonymous with deception in China since the Tibetan riots, she went on to say:

The American television station CNN has come in for particular opprobrium. Indeed a university student has set up a special website, www.anti-cnn.com, devoted to showcasing misleading or incorrect use of photos. The Times features here too for an allegedly misleading photo caption. And a new phrase – "Don't be too CNN" – has entered the Chinese vocabulary to mean "don't ignore the truth."

That the BBC, which was once heralded by Tiananmen square demonstrators carrying placards saying "Thank you BBC", now carries the same meaning in the minds of some young Chinese as "lies", is a measure of hold that communist propaganda has over the thoughts of the Chinese population. Although the vast majority of Chinese (or at least the ones I have spoken to) do not have this point of view, it must be admitted that there is now a portion of the Chinese population now reaching adulthood who simply hate the west, and everything it stands for. These, the so-called "FQs", short for Fen Qing - "愤青", which in turn is short for "愤怒青年", or "angry youth", are in every way the modern-day counterparts to Mao's Red Guards. We saw during the anti-Japanese riots how the government were able to control the flow of violence from the demonstrators in the same way you control the flow of water from a tap. No doubt that was not the last time that we will see such demonstrations.