TRIPS Copyright Dispute Settlement after the Transition and Moratorium: Nonviolation and Situation Complaints against Developing Countries [notes]

I. INTRODUCTION: PRELUDE TO TRADE WAR January 1, 2000 inaugurated open season on developing countries in the World Trade Organization (WTO). Under the Uruguay Round Multilateral Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPS),(1) a five-year transition period for developing countries to enforce intellectual property regimes expired simultaneously, and most auspiciously, with a five-year moratorium on far-reaching nonviolation and situation complaints.(2) TRIPS responds to developed countries' concerns that developing countries' indifference to intellectual property rights prejudices copyright-, patent-, and trademark-based industries' ability to trade abroad. The end of the developing country transition period means that inadequate substantive intellectual property laws or inadequate enforcement measures will become actionable before the WTO's dispute settlement body (DSB).(3) For anxious intellectual property owners, the occasion will prove the WTO's mettle because adequate intellectual property protection in developing countries represents a long-awaited bargained-for exchange for favorable tariff concessions in developed countries.(4) In 1996 alone, U.S. copyright holders lost twenty to twenty-two billion dollars to foreign copyright piracy.(5) The formal passage of new laws alone, however, will not remedy trade distortions. At present, most property losses do not result from a lack of codified laws or enforcement provisions. Instead, most losses result from an absence of `on the ground' enforcement.(6) Actual, on the ground enforcement, however, will prove difficult to secure. Although TRIPS obligates WTO member states to provide new enforcement tools in combating piracy, sovereign discretion in employing those tools raises the specter of bad faith implementation. What happens after January 1, 2000, when developing country WTO members have appropriate intellectual property measures and enforcement provisions on their books, but limited or no actual enforcement occurs? May a developing country reply to a TRIPS violation claim that its statutory enactments fulfill WTO obligations and that actual enforcement of its laws is uniquely a matter of prosecutorial or judicial discretion? When developing countries invariably fail to enforce their new intellectual property codes to the liking of developed countries, the United States Trade Representative (USTR) and other national trade representatives will almost certainly request dispute settlement consultations, alleging that TRIPS requires actual enforcement, not mere codification of enforcement provisions.(7) Very likely, the question of what is an inadequately enforced TRIPS enforcement provision, as opposed to a good faith exercise of state discretion, will pit developed country against developing country in a contest over national sovereignty and the extent of TRIPS obligations. When the disputes arise, the WTO's dispute settlement mechanism will govern resolution of the trade controversies. Initially, injured states must seek consultation with the offending state. But, if these consultations fail, the controversy becomes the subject of a binding dispute settlement process before the WTO. A panel of trade experts or the Appellate Body hears each party's allegation and complaints. In anticipation of this flood of TRIPS activity, this Note outlines three varieties of complaints that countries might allege during WTO dispute settlement--violations, nonviolations, and situations--and reviews the difficulties inherent in claims of inadequate on the ground enforcement. Although this Note's analysis may apply broadly to all intellectual property, this Note specifically examines complaints for inadequate copyright protection. Part II places copyright enforcement dispute settlement in the context of the Agreement's enforcement requirements as well as the tradeoffs made during TRIPS negotiation. …