Droit et économie - Droit et économie de la propriété intellectuelle - 43

Globalization of Literary and Artistic Property

far as possible25 - and, indeed, the challenging question here is to know to which
extent the application of unilateral measures is legally still permitted. According
to the general rule, such measures are no longer permitted to the extent that the
dispute settlement procedure under the WTO applies. The question here is:
what is the exact scope of application of this dispute settlement mechanism,
what is the WTO jurisdiction? For example, where the TRIPS Agreement does
not contain a particular provision or contains a certain minimum standard, is
it possible for the USA to require from a third country to introduce such
provision or a higher standard, subject to sanctions under the
'Special 301'-provisions?26 The answers to such questions are not always clear
cut, and the USA tend to use the grey zone of legal insecurity to apply these
measures.
The strength of unilateral measures, bilateral treaties, and multilateral treaties
in the trade area is, among others, the possibility to provide for sanctions in
domains other than intellectual property - domains where sanctions may in
many cases hurt third countries much more than in the field of intellectual
property. Accordingly, third countries may indeed expect negative consequences
of such sanctions and therefore prefer to change their laws or behaviour so as to
avoid these consequences. For example, China, which does not produce a lot of
own works for export, could hardly be hurt by sanctions in the field of author's
rights, but could be so by sanctions in strong domains of export of goods, such
as toys for kids.
§ 4. - Strategies for applying these means
A strategy applied by the USA is worth mentioning. It refers to the choice of
the first country in a region to conclude a bilateral agreement. The US often has
chosen a country that may be more dependent than the others in the region on
the access to the US market in a given domain, or a country that otherwise has
general economic or political advantages as a leading country in the region, and,
at the same time, a country of which the imports into the USA would not have
any measurable impact on US industries. If, on the basis of a bilateral agreement
with such a country, the USA has obtained the introduction in that country of
the desired high protection standards, it will be usually easier for the USA to
convince the other countries of the region also to introduce such standards on
the basis of bilateral agreements. Accordingly, by this means, the USA may easier
conclude a greater number of treaties.27

25. V. Espinel of the USTR, oral statement at the 12th International Intellectual Property Law & Policy
Conference of Fordham Law School 2004.
26. On this question, see, for ex., C. Schede, "The Strengthening of the Multilateral System", World
Competition, Vol. 20, n° 1, 1997/8, p. 109, 123, 132-133.
27. S. von Lewinski, International Copyright Law and Policy, op. cit., 12.21 ff.

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