Wednesday, January 28, 2009

U.S. vs. P.R.C. in WTO = KO

Canadian legal blogger - Michael Geist - has a great article breaking down the recent ruling on the U.S.'s complaint against China regarding intellectual property rights enforcement.

The article is titled, "Why the U.S. Lost Its WTO IP Complaint Against China. Badly."

The title says it all. The ruling provides some large loopholes in the enforcement of IP violations under the Berne Convention and TRIPS.

His point about China's high threshold of violations required to pursue a criminal conviction is especially interesting. China requires there to be 500 instances of copyright violation before they will initiate criminal prosecutions.

Mercurio writes:

"It also would seem to allow an individual to rent premises and set up shop selling pirated copies of music/DVDs and counterfeit TMs but avoid criminal prosecution as long as only 499 copies of each item are copied and sold."

What does this mean to the average person?

China's seemingly high threshold for criminal prosecution of IP violations means China can remain a safe haven for the smart counterfeiter.

Utilizing proven business techniques like on-demand production and just-in-time inventory strategies, organized counterfeiters could easily stay below the 500 instances threshold.

"I see you have 499 copies of Underworld: Rise of the Lycans. You'd sure be in trouble if you had one more copy. I'd have to run you in as a counterfeiter."

So if you are looking for cheap knockoffs of Western products, head on down to the PRC.

They are practically given it away! These prices are too low to miss!

And it is all legal - at least under international law.

Monday, January 26, 2009

ICC begins

The International Criminal Court (ICC) has begun it's first hearing today.

Congolese warlord, Thomas Lubanga,is being brought on trial for war crimes that include violently forcing children to serve in his army and the use of children as sexual slaves.

Should these charges be proven true, I hope the justice of the court falls on Mr. Lubanga swiftly and harshly.

Hopefully, the sheer inhumanity of Mr. Lubanga's alleged deeds will not distract the court from it's true focus.

The ICC must have a fair and full hearing of all of the facts related to the case. There can be no doubt as to the strength and legitimacy of the outcome.

The United States is a signor of the ICC treaty. Bill Clinton signed during his presidency in 1998. George W. Bush ordered the signature withdrawn, leaving the United States as the only major Western power not to join as a court member.

This is the only way the ICC can establish itself as a force for justice in international law.

Thursday, January 15, 2009

Fighting Pirates on the High Seas..with Law!

The issue: Pirates!

For months now, headlines on television and newspapers scream pirates on the high seas!

In the failed nation of Somalia, pirates in tiny boats filled with men, automatic weapons, and rocket-powered grenades have been seizing ships that are filled with wealthy french couples, supertankers filled with oil, and $30 million worth of grenade launchers, piles of ammunition, even battle tanks.

The waters off of Somalia are considered the most dangerous in the world. Pirates have attacked ships as far out as 300 miles from shore.

Why off of Somalia?

First, Somalia has no functioning economy since 1991 when the country's government collapsed. Piracy is a means to bring in wealth to a desperately poor country.

Secondly, Somalia is geographically positioned at one of the busiest shipping lanes in the world - the Gulf of Aden. It's is the only maritime route that allows ships from the Indian Ocean to quickly enter the Mediterranean Sea - without traveling all the way around Africa. Cruise and cargo ships alike bunch up in this narrow area and become easy prey to former fishermen who are heavily armed.

Can international law do anything to protect people on the high seas?

Controlling International Law:

The United Nations' Convention on the Law of the Sea (CLOS) is the controlling international law. It replaces customary international law that outlawed piracy.

CLOS focuses on piracy on the high seas - areas considered outside the control and jurisdiction of any one nation.

Section VII, Article 100 imposes a duty on all member nations to cooperate in the suppression of piracy in the high seas.

Article 101 defines piracy as:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

Article 105 allows one to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board.

However, Article 107 limits this authority to seize pirates ships and arrest pirates only to warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.

A private actor cannot go pirate hunting; they must be authorized to do so by a State.

How does this affect you?

Nations around the world are mobilizing their navies into this narrow area to fight the Somali pirates.

European nations, the United States, and China have all moved naval forces into the Indian Ocean and the Gulf of Aden to escort ships and respond to attacks.

The U.N. Security Council unanimously approved actions by States to attack pirates not just on the high seas, but also in their bases in Somalia.

How will this affect you? Unless you are a sailor in a navy or a merchant marine on a cargo ship, you are likely to see no impact on your daily life.

If you are a Somali pirate, your life is about to get much more dangerous.