|Short Title||Full Case Title and Citation|
|Australia – Automotive Leather II||Panel Report, Australia – Subsidies Provided to Producers and Exporters of Automotive Leather, WT/DS126/R, adopted 16 June 1999, DSR 1999:III, 951|
|Brazil – Retreaded Tyres||Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007|
|Brazil – Retreaded Tyres||Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body Report, WT/DS332/AB/R|
|Canada – Pharmaceutical Patents||Panel Report, Canada – Patent Protection of Pharmaceutical Products, WT/DS114/R, adopted 7 April 2000, DSR 2000:V, 2289|
|EC – The ACP-EC Partnership Agreement II||Award of the Arbitrator, European Communities – The ACP-EC Partnership Agreement – Second Recourse to Arbitration Pursuant to the Decision of 14 November 2001, WT/L/625, 27 October 2005, DSR 2005:XXIII, 11703|
|EC – Bed Linen||Appellate Body Report, European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/AB/R, adopted 12 March 2001, DSR 2001:V, 2049|
|EC – Chicken Cuts||Appellate Body Report, EuropeanCommunities – Customs Classification of Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 September 2005, DSR 2005:XIX, 9157|
|EC – Computer Equipment||Appellate Body Report, European Communities – Customs Classification of Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851|
|EC – Trademarks and Geographical Indications (Australia)||Panel Report, European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Complaint by Australia, WT/DS290/R, adopted 20 April 2005, DSR 2005:X, 4603|
|EC – Trademarks and Geographical Indications (US)||Panel Report, European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Complaint by the United States, WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII, 3499|
|India – Patents (US)||Appellate Body Report, India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR 1998:I, 9|
|Japan – Alcoholic Beverages II||Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97|
|US – Corrosion-Resistant Steel Sunset Review||Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3|
|US – Gambling||Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663|
|US – Gasoline||Panel Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body Report, WT/DS2/AB/R, DSR 1996:I, 29|
|US – Gasoline||Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3|
|US – Oil Country Tubular Goods Sunset Reviews||Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R, adopted 17 December 2004, DSR 2004:VII, 3257|
|US – Section 110(5) Copyright Act||Panel Report, United States – Section 110(5) of the US Copyright Act, WT/DS160/R, adopted 27 July 2000, DSR 2000:VIII, 3769|
|US – Section 211 Appropriations Act||Panel Report, United States – Section 211 Omnibus Appropriations Act of 1998, WT/DS176/R, adopted 1 February 2002, as modified by Appellate Body Report, WT/DS176/AB/R, DSR 2002:II, 683|
|US – Section 211 Appropriations Act||Appellate Body Report, United States – Section 211 Omnibus Appropriations Act of 1998, WT/DS176/AB/R, adopted 1 February 2002, DSR 2002:II, 589|
|US – Superfund||GATT Panel Report, United States – Taxes on Petroleum and Certain Imported Substances, L/6175, adopted 17 June 1987, BISD 34S/136|
|US – Section 301 Trade Act||Panel Report, United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815|
|US – Tobacco||GATT Panel Report, United States Measures Affecting the Importation, Internal Sale and Use of Tobacco, DS44/R, adopted 4 October 1994, BISD 41S/131|
|US – Wool Shirts and Blouses||Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, DSR 1997:I, 323|
|US – Zeroing (Japan)||Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews, WT/DS322/AB/R, adopted 23 January 2007|
"To examine, in the light of the relevant provisions of the covered agreements cited by the United States in document WT/DS362/7, the matter referred to the DSB by the United States in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."
(a) the Regulations of the People's Republic of China for Customs Protection of Intellectual Property Rights (adopted at the 30th Ordinary Meeting of the State Council on 26 November 2003, published by the State Council on 2 December 2003, and effective from 1 March 2004), in particular Chapter 4 thereof;
(b) the Implementing Measures of Customs of the People's Republic of China for the Regulations of the People's Republic of China on Customs Protection of Intellectual Property Rights (adopted at an Administration Affairs Meeting of the General Administration of Customs on 22 April 2004, issued by the General Administration of Customs with Order No. 114 on 25 May 2004, and effective from 1 July 2004), in particular Chapter 5 thereof; and
(c) General Administration of Customs Announcement No. 16 (2 April 2007);
as well as any amendments, related measures, or implementing measures.
(a) the Copyright Law of the People's Republic of China (adopted at the 15th Session of the Standing Committee of the Seventh National People's Congress on 7 September 1990, and amended according to the Decision on the Revision of the Copyright Law of the People's Republic of China, adopted at the 24th Session of the Standing Committee of the Ninth National People's Congress on 27 October 2001), in particular Article 4;3
as well as any amendments, related measures, or implementing measures.
(MAT-1) Criminal Law (Articles 213, 214, 215, 217, 218 and 220)
(MAT-2) 2007 Judicial Interpretation (Articles 1 through 7)
(MAT-3) 2004 Judicial Interpretation (Articles 1 through 17)
(MAT-4) 1998 Judicial Interpretation (Article 17 paragraph 2)
(MAT-5) Prosecution Standards on Economic Crimes (Articles 8, 16, 23, 38, 39 and 70)
(MAT-6) Regulations on Customs Protection of Intellectual Property Rights (Article 27)
(MAT-7) Customs IPR Implementing Measures (Article 30)
(MAT-8) Customs Announcement No. 16/2007
(MAT-9) Measures on the Administration of Property Confiscated by Customs (Articles 1, 2, 3, 17 and 18)
(MAT-10) Law on Donations for Public Welfare
(MAT-11) Copyright Law (Articles 2 and 4)
(MAT-12) Regulations on the Administration of Films (Articles 2, 24, 25, 27, 28, 29, 31, 42 and 55)
(MAT-13) Regulations on the Administration of Audiovisual Products (Articles 2, 4, 28 and 36)
(MAT-14) Regulations on the Administration of Publication (Articles 6, 26, 27, 40, 44, 45 and 56)
(a) China's IPR thresholds are inconsistent with China's obligations under Article 61, 1st and 2nd sentence, and Article 41.1 of the TRIPS Agreement;
(b) the compulsory sequences of steps set out in the Chinese measures mean that Chinese customs authorities lack the authority to order destruction or disposal of infringing goods in accordance with the principles set out in Article 46 of the TRIPS Agreement, and that the measures at issue are therefore inconsistent with China's obligations under Article 59 of the TRIPS Agreement;
(c) the first sentence of Article 4 of China's Copyright Law is inconsistent with Article 9.1 of the TRIPS Agreement, incorporating Articles 5(1) and 5(2) of the Berne Convention (1971), as well as Article 14; Article 61, 1st and 2nd sentence; and Article 41.1 of the TRIPS Agreement.
Rights specially granted by the Berne Convention
Effectiveness of prohibitions on content
Auction and authority to order the destruction of infringing goods
Auction and "simple removal of the trademark unlawfully affixed"
Article 63.3 of the TRIPS Agreement
"Works the publication and/or dissemination of which are prohibited by law shall not be protected by this Law."7
"Chinese citizens, legal entities or other organizations shall enjoy copyright in their works in accordance with this Law, whether published or not."42
"The copyright enjoyed by foreigners or stateless persons in any of their works under an agreement concluded between China and the country to which the author belongs or in which the author has his habitual residence, or under an international treaty to which both countries are parties, shall be protected by this Law."43
The Berne Convention (1971) is defined as an "international copyright treaty" for the purposes of the Provisions on the Implementation of International Copyright Treaties.44
"The Inside Story was originally published in the magazine 'Yanhuang Chunqiu' (1994, No. 2). In May of the same year, the United Front Department of the Sichuan Provincial Communist Party Committee reviewed the book and approved its publication. Nothing was found in the text of the Inside Story to violate any laws. Therefore, it is correct for the courts of the first and second instances to provide it protection under the Copyright Law."53
"China, like many countries in the world, bans from publication and dissemination such works as those that consist entirely of unconstitutional or immoral content. Art. 4.1 simply provides that such a work also shall not be protected by the Copyright Law. …"54
"As a matter of law, Article 4.1 of the Copyright Law only denies protection to works whose contents are completely unconstitutional or immoral."55
"China also notes that to the extent that Art. 4.1 independently of the content review process might act to deny copyright protection to a work independently found by a court to be prohibited by law, this act of prohibition is protected by Berne Convention Art. 17 …"56
"Under the Copyright Law, the copyright is created upon the composition of the work. In general, the author is entitled to the copyright, and is protected by the Copyright Law. Only works the publication or dissemination of which are prohibited by law are not protected by the Copyright Law. Yet the '[w]orks the publication and dissemination of which are prohibited by law' in Article 4 of the Copyright Law refer only to works whose contents are illegal (reactionary, pornographic, or superstitious contents). If the contents of Inside are illegal, it will not be protected by Copyright Law, and all the presses shall neither publish nor disseminate it. …"57
"Thus, the NCAC had clarified that only when the contents of the work are found to be illegal will Article 4.1 come into play; violation of publishing rules does not deprive the right-holder the right to have its copyright protected and enforced by law."58
"Article 4.1 of China's Copyright Law empowered China's courts and the National Copyright Administration of China to deny copyright protection to works that are prohibited by law."60
"Nor does Art. 4.1 function in any other way as a condition precedent to copyright. … Art. 4.1 is envisaged by China's authorities to operate as a condition subsequent in one narrow judicial context, and to the extent that it so operates, it is entirely consistent with the requirements of the Berne Convention."61 (footnote omitted)
"To the extent that Art. 4.1 would come into play with respect to a work, it would operate not to remove copyright, but to deny the particularized rights of private copyright enforcement. Art. 4.1 thus does not operate in any manner that would violate Berne Art. 5(1): it does not destroy the residual Art. 2 copyright. If applied, its effect would be to deny to the right-holder the power of private censorship that would generally be available to non-prohibited works."63
"Yet the '[w]orks the publication and dissemination of which are prohibited by law' in Article 4 of the Copyright Law refer only to works whose contents are illegal (reactionary, pornographic, or superstitious contents)."77
"(1) are against the fundamental principles established in the Constitution;
(2) jeopardize the unification, sovereignty and territorial integrity of the State;
(3) divulge State secrets, jeopardize security of the State, or impair the prestige and interests of the State;
(4) incite hatred and discrimination among ethnic groups, harm their unity, or violate their customs and habits;
(5) propagate cults and superstition;
(6) disrupt public order and undermine social stability;
(7) propagate obscenity, gambling, or violence, or abet to commit crimes;
(8) insult or slander others, or infringe upon legitimate rights and interests of others;
(9) jeopardize social ethics or fine national cultural traditions;
(10) other contents banned by laws, administrative regulations and provisions of the State."79
"China notes that it also will enforce the right-holder's copyright in [a situation] where there is an authorized edited version. In that case, the copyright will be protected irrespective of whether the infringing copy is of the edited or the unedited version."93
"Article 24. Films which have not been reviewed and approved by the film review institutions under the administrative department of radio, film and television under the State Council … shall not be distributed, projected, imported or exported."95
"Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom."
"(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention."
"Copyright vests at the time that a work is created, and is not contingent on publication. Unpublished works are protected, foreign works not yet released in the Chinese market are protected, and works never released in the Chinese market are protected."120; and
"Works that are unreviewed are decidedly not 'prohibited by law'."121
"The provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right."
"Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests."
"It covers the right of governments to take the necessary steps to maintain public order. On this point, the sovereignty of member countries is not affected by the rights given by the Convention. Authors may exercise their rights only if that exercise does not conflict with public order. The former must give way to the latter. The Article therefore gives Union countries certain powers to control."134
"When a measure is challenged 'as such', the starting point for an analysis must be the measure on its face. If the meaning and content of the measure are clear on its face, then the consistency of the measure as such can be assessed on that basis alone. If, however, the meaning or content of the measure is not evident on its face, further examination is required. …"143
"1. Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse."
"Its core principle is that the Copyright Law shall not enforce the protections of the copyright law for works the contents of which are illegal."167
(a) Article 5(1) of the Berne Convention (1971), as incorporated by Article 9.1 of the TRIPS Agreement; and
(b) Article 41.1 of the TRIPS Agreement.
"Where the confiscated goods which infringe on intellectual property rights can be used for the social public welfare undertakings, Customs shall hand such goods over to relevant public welfare bodies for the use in social public welfare undertakings. Where the holder of the intellectual property rights intends to buy them, Customs can assign them to the holder of the intellectual property rights with compensation. Where the confiscated goods infringing on intellectual property rights cannot be used for social public welfare undertakings and the holder of the intellectual property rights has no intention to buy them, Customs can, after eradicating the infringing features, auction them off according to law. Where the infringing features are impossible to eradicate, Customs shall destroy the goods."179
"Article 30 Customs shall dispose of infringing goods it has confiscated according to the following provisions:
(1). Where the goods concerned may be used directly for the social public welfare or the holder of the intellectual property rights wishes to purchase the goods, Customs shall181 hand the goods over to the relevant social welfare bodies182 for the use in social public welfare183 or assign them to the holder of the intellectual property rights with compensation;
(2). Where the goods concerned cannot be disposed of in accordance with Item (1) but the infringing features can be eradicated, they shall184 be auctioned off according to law after eradicating the infringing features. The proceeds arising from the auction shall be turned into the state treasury; and
(3). Where the goods concerned cannot be disposed of in accordance with Items (1) and (2), they shall be destroyed.
When Customs destroys the infringing goods, the holder of the intellectual property rights shall provide necessary assistance. In cases where relevant social welfare bodies use the infringing goods confiscated by Customs for the social public welfare, or the holder of the intellectual property rights assists Customs in destroying the infringing goods, Customs shall carry out necessary supervision."185
"1. Where the confiscated infringing goods are auctioned by Customs, Customs shall completely eradicate all infringing features on the goods and the packaging thereof strictly pursuant to Article 27 of the Regulations, including eradicating the features infringing trademarks, copyright, patent and other intellectual property rights. Any goods the infringing features of which cannot be completely eradicated shall be destroyed and shall not be auctioned.
"2. Customs shall solicit comments from the holder of the intellectual property rights before the infringing goods are auctioned."186
Without prejudice to other rights of action open to the right holder and subject to the right of the defendant to seek review by a judicial authority, competent authorities shall have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in Article 46. In regard to counterfeit trademark goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances."
"Members shall, in conformity with the provisions set out below, adopt procedures to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods." (footnotes omitted)
"Members may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of this Section are met. Members may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territories."
"Recognizing, to this end, the need for new rules and disciplines concerning:
(c) the provision of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems"236
(a) First, the Panel will determine what are "the principles set out in Article 46";
(b) Second, the Panel will assess China Customs' authority to order donation to social welfare bodies and, if necessary, sale to the right holder, in order to determine whether they constitute authority to order disposal in accordance with the principles set out in the first sentence of Article 46; and
(c) Third, the Panel will assess China Customs' authority to order auction of infringing goods (plus either of the first two disposal options that is found to be disposal not in accordance with the principles set out in the first sentence of Article 46) to determine whether such authority mandates a particular disposition method and thereby precludes authority to order destruction.
In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce."
(a) authorities shall have the authority to order disposal or destruction in accordance with the first sentence "without compensation of any sort"; and
(b) authorities shall have the authority to order disposal "outside the channels of commerce in such a manner as to avoid any harm caused to the right holder";258 or
(c) authorities shall have the authority to order destruction "unless this would be contrary to existing constitutional requirements".
(d) in considering such requests "the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account".
(e) in regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.259
"In regard to counterfeit trademark goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances."