The first thing the WTO panel did was to get translations of the People’s Republic of China’s both countries agreed upon (so called mutally agreed translations, fourteen of them).
(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). Then they requested the International Bureau of the World Intellectual Property Organisation (WIPO) to give them factual information available to it relevant to the interpretation of the Berne Convention for the Protecition of Literary and Artistic Works (1971).
So these, plus the input by the parties and third parties (Argentina, Australia, Brazil, Canada, European Communities, India, Japan, South Korea, Mexico, Chinese Taipei, Thailand, Turkey) are the ingredients for the pannelists to come up with a decision.
The factual information provided by the International Bureau consists of a note (pp 10-18) that it prepared and 16 annexes containing excerpts from the Official Records of the various Diplomatic Conferences which adopted, amended or revised the provisions currently contained in Articles 5(1), 5(2) and 17 of the Berne Convention. The International Bureau’s Note is attached as Annex D-3 to the WTO report, but unfortunately not the 16 annexes.
These Diplomatic Conferences are in chronological order:
- The Diplomatic Conference of 1884: International Conference for the Protection of
Authors’ Rights held in Berne, from September 8 to 19, 1884; - The Diplomatic Conference of 1885: Second International Conference for the
Protection of Literary and Artistic Works, held in Berne, from September 7 to 18, 1885; - The Diplomatic Conference of 1886 (Berne Act): Third International conference for
the Protection of Literary and Artistic Works, held in Berne, from September 6 to 9, 1886; - The Diplomatic Conference of 1896 (Paris Act): Diplomatic Conference held in Paris, from April 15 to May 4, 1896;
- The Diplomatic Conference of 1908 (Berlin Act): Diplomatic Conference held in Berlin, from October 14 to November 14, 1908;
- Additional Protocol of 1914 (Berne Protocol): Additional Protocol to the Convention signed in Berne without a conference of revision;
- The Diplomatic Conference of 1928 (Rome Act): Diplomatic Conference held in Rome, from May 7 to June 2, 1928;
- The Diplomatic Conference of 1948 (Brussels Act): Diplomatic Conference held in
Brussels from June 5 to 26, 1948; - The Diplomatic Conference of 1967 (Stockholm Act): Intellectual Property Conference held in Stockholm, from June 11 to July 14, 1967;
- The Diplomatic Conference of 1971 (Paris Act): Diplomatic Conference for the
Revision of the Berne Convention held in Paris, from July 5 to 24, 1971.
Why they didn’t ask for the factual information available to WIPO relevant to the interpretation of the Paris Convention for the Protection of Industrial Property (1967) (not to be mistaken with the Paris Act of Berne Convention), I don’t know. I do know that the complaints were also directly based on China’s obligation to comply to the provisions of the Paris Convention and indirectly to the Berne and Paris Convention provisions incorporated in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs).
To be continued.
