Tomer Broude, Senior Lecturer at the Hebrew University of Jerusalem, has posted an article at SSRN titled “It’s Easily Done: The China-Intellectual Property Rights Enforcement Dispute And the Freedom of Expression.” The article presents a provocative analysis of the U.S.-China WTO intellectual property dispute. A paragraph from the conclusion:
In China-IPR, the freedom of expression and trade-related intellectual property rights might have shared the same circumstantial space, but they did not make legal eye contact, let alone conduct a civilized juridical exchange. If there was such a meeting, it is not apparent from the Panel Report, and it is effortlessly denied. The Panel did not consider the human rights implications of its decision, either explicitly or implicitly. Indeed, it was not requested to do so by the US as complainant, nor was it encouraged to do so by any of the third-parties. This is reflective of the reluctance of the WTO’s Membership’s to integrate with non-WTO law, and the dispute settlement system’s consequent constraints in engaging with it. In this article I have not set out to either present or advocate an alternative approach; what is striking and noteworthy, however, is the ease with which this indifference to human rights law can be enacted by parties and Panels. To be sure, this is not necessarily a bad thing, and this exposition is not a judgmental one. Trade disputes do not exist in a political vacuum, and the WTO does have to consider its effectiveness in the area of trade law, and the continued legitimacy of its dispute settlement process among Members. However, the analysis shows that this indifference is not necessarily benign in its real implications for human rights.