Friday, February 01, 2013

WTO OK's Suspension of Intellectual Property Rights (Legal IP PIracy?) in Trade Dispute Between the USA and Antigua and Barbuda

Are you ready for this?

The BBC reports that US warns Antigua and Barbuda over 'piracy site' plan.

Map location of Antigua (lower island of the two) and Barbuda (upper island),
map linked from The World Factbook

Future new rich kids on the block tomorrow might just be small countries who are able to suspend intellectual property rights and then just "legally" sell online anything they want from their sovereign territory, including property otherwise protected by intellectual property rights in other countries.

A pipedream?

Hardly, in view of a report by Ezra Fieser at the Christian Science Monitor in Legal piracy? Antigua gets OK to start selling copies of US hit movies, songs.

It is one thing for a country to announce it will disregard IP laws.

It is another thing for the World Trade Organization (WTO) to issue a decision that one member nation of the WTO is entitled to do so against another member nation, the USA, as compensation in a trade dispute in which the USA has barred American citizens from using gambling sites based in Antigua and Barbuda, saying that gambling crossing American State lines is illegal.

Unfair? Whoah. As Lee Corso might say, "Not so fast!". As written by Joe Patrice at Above the Law, also the USA can be a beneficiary of a similar WTO ruling:
"For example, if China breaks the anti-dumping rules for tires, the U.S. is allowed to unfairly tax Chinese steel to make up the difference."
The discriminatory American gambling ban is of course surely unconstitutional and shows the degree to which the USA is still backwardly, puritanically paternalistic vis-a-vis its own citizens, with moralistic rules mirroring an inert legal system that has been unable to adjust well to the demands of the modern Internet era or the realities of intellectual property in a digital world.

The ban is also clearly a type of economic trade barrier against other nations, forcing Americans who desire to gamble to go to gambling meccas within America's own borders such as Las Vegas, Nevada, for gambling activities, or to special gambling enclaves, such as those of the Native Americans.

The WTO decision said suspension of IP rights is justified to compensate for the "discriminatory" U.S. gambling decision, which greatly cuts into Antigua and Barbuda's gambling industry, a mainstay of its economy, developed in the 1990's to counter declines in Caribbean tourism, surely as the result of American economic difficulties brought on by just the type of provincial thinking they are again repeating.

Antigua and Barbuda are planning to set up an online site selling music and films, while ignoring American IP rights. The WTO in 2007 in fact ruled that $21 million annually in U.S. intellectual property rights could be waived by Antigua and Barbuda. That monetary amount of course would be hard to control and must be viewed in terms of Antigua and Barbuda's original claim of $3.44 billion compensation annually from the USA for loss of gambling revenues. The USA could of course prohibit sales to the sovereign regions of the USA, but certainly not elsewhere.

Legal experts have indicated it would then be perfectly legal for foreign subscribers or visitors to such an online website to make LEGAL purchases if the site were based in Antigua and Barbuda and sold the wares in its own local currency. The server could be set up not to divulge the whereabouts of customers, thus mooting the issue of geographic location of purchasers of wares, which is of no concern to Antigua and Barbuda in selling their goods.

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