WTO Dispute Settlement Proceeding Regarding China-Measures Affecting the Protection and Enforcement of Intellectual Property Rights, 20144-20146 [E7-7612]
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20144
Federal Register / Vol. 72, No. 77 / Monday, April 23, 2007 / Notices
jlentini on PROD1PC65 with NOTICES
• The Measures for Administration of
Chinese Foreign Contractual
Distribution Ventures of Audiovisual
Products.
It appears that these measures
prohibit foreign service suppliers
(including wholly or partially foreignowned or foreign-invested enterprises)
from engaging at least in certain types
of distribution of publications and
audiovisual home entertainment
products within China. In addition, to
the extent that some foreign service
suppliers are allowed to engage in some
aspects of the distribution of
publications, there appear to be
discriminatory requirements concerning
such suppliers’ registered capital, such
suppliers’ operating term, and the
particular publications that such
suppliers may distribute. Furthermore,
to the extent that foreign services
suppliers are permitted to engage in any
distribution of audiovisual home
entertainment products, the measures at
issue appear to impose requirements
that the service be supplied through a
form of entity that Chinese persons
control, or in which Chinese persons
have a dominant position, or for which
there is a limitation on the participation
of foreign capital. These measures
appear to USTR to be inconsistent with
China’s obligations under Articles XVI
and XVII of the General Agreement on
Trade in Services.
Public Comment: Requirements for
Submissions
Interested persons are invited to
submit written comments concerning
the issues raised in the dispute.
Comments should be submitted (I)
Electronically, to FR0708@ustr.eop.gov,
with ‘‘China Trading Rights and
Distribution Services (DS363)’’ in the
subject line, or (ii) by fax, to Sandy
McKinzy at (202) 395–3640, with a
confirmation copy sent electronically to
the electronic mail address above.
USTR encourages the submission of
documents in Adobe PDF format as
attachments to an electronic mail.
Interested persons who make
submissions by electronic mail should
not provide separate cover letters;
information that might appear in a cover
letter should be included in the
submission itself. Similarly, to the
extent possible, any attachments to the
submission should be included in the
same file as the submission itself, and
not as separate files.
Comments must be in English. A
person requesting that information
contained in a comment submitted by
that person be treated as confidential
business information must certify that
such information is business
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19:17 Apr 20, 2007
Jkt 211001
confidential and would not customarily
be released to the public by the
commenter. Confidential business
information must be clearly designated
as such and ‘‘BUSINESS
CONFIDENTIAL’’ must be marked at the
top and bottom of the cover page and
each succeeding page. Persons who
submit confidential business
information are encouraged also to
provide a non-confidential summary of
the information.
Information or advice contained in a
comment submitted, other than business
confidential information, may be
determined by USTR to be confidential
in accordance with section 135(g)(2) of
the Trade Act of 1974 (19 U.S.C.
2155(g)(2)). If the submitter believes that
information or advice may qualify as
such, the submitter—
(1) Must clearly so designate the
information or advice;
(2) Must clearly mark the material as
‘‘SUBMITTED IN CONFIDENCE’’ at the
top and bottom of the cover page and
each succeeding page; and
(3) Is encouraged to provide a nonconfidential summary of the
information or advice.
Pursuant to section 127(e) of the
URAA (19 U.S.C. 3537(e)), USTR will
maintain a file on this dispute
settlement proceeding, accessible to the
public, in the USTR Reading Room,
which is located at 1724 F Street, NW.,
Washington, DC 20508. The public file
will include non-confidential comments
received by USTR from the public with
respect to the dispute; if a dispute
settlement panel is convened or in the
event of an appeal from such a panel,
the U.S. submissions; the submissions,
or non-confidential summaries of
submissions, received from other
participants in the dispute; the report of
the panel; and, if applicable, the report
of the Appellate Body. The USTR
Reading Room is open to the public, by
appointment only, from 10 a.m. to noon
and 1 p.m. to 4 p.m., Monday through
Friday. An appointment to review the
public file (Docket WTO/DS–363, China
Trading Rights and Distribution
Services Dispute) may be made by
calling the USTR Reading Room at (202)
395–6186.
Daniel Brinza,
Assistant United States Trade Representative
for Monitoring and Enforcement.
[FR Doc. E7–7606 Filed 4–20–07; 8:45 am]
BILLING CODE 3190–W7–P
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OFFICE OF THE UNITED STATES
TRADE REPRESENTATIVE
[Docket No. WTO/DS–362]
WTO Dispute Settlement Proceeding
Regarding China—Measures Affecting
the Protection and Enforcement of
Intellectual Property Rights
Office of the United States
Trade Representative.
ACTION: Notice; request for comments.
AGENCY:
SUMMARY: The Office of the United
States Trade Representative (USTR) is
providing notice that on April 10, 2007,
in accordance with the Marrakesh
Agreement Establishing the World
Trade Organization (WTO Agreement),
the United States requested
consultations with respect to certain
measures pertaining to the protection
and enforcement of intellectual property
rights in China. That request may be
found at https://www.wto.org contained
in a document designated as WT/
DS362/1. USTR invites written
comments from the public concerning
the issues raised in this dispute.
DATES: Although USTR will accept any
comments received during the course of
the consultations, comments should be
submitted on or before May 7, 2007 to
be assured of timely consideration by
USTR.
ADDRESSES: Comments should be
submitted (i) Electronically, to
FR0707@ustr.eop.gov, with ‘‘China IPR
Protection and Enforcement (DS362)’’ in
the subject line, or (ii) by fax, to Sandy
McKinzy at (202) 395–3640, with a
confirmation copy sent electronically to
the electronic mail address above, in
accordance with the requirements for
submission set out below.
FOR FURTHER INFORMATION CONTACT:
Steven F. Fabry, Associate General
Counsel, Office of the United States
Trade Representative, 600 17th Street,
NW., Washington, DC, (202) 395–3150.
SUPPLEMENTARY INFORMATION: Section
127(b) of the Uruguay Round
Agreements Act (URAA) (19 U.S.C.
3537(b)(1)) requires that notice and
opportunity for comment be provided
after the United States submits or
receives a request for the establishment
of a WTO dispute settlement panel. In
an effort to provide additional
opportunity for comment, USTR is
providing notice that consultations have
been requested pursuant to the WTO
Understanding on Rules and Procedures
Governing the Settlement of Disputes
(‘‘DSU’’). If such consultations should
fail to resolve the matter and a dispute
settlement panel is established pursuant
to the DSU, such panel, which would
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Federal Register / Vol. 72, No. 77 / Monday, April 23, 2007 / Notices
jlentini on PROD1PC65 with NOTICES
hold its meetings in Geneva,
Switzerland, would be expected to issue
a report on its findings and
recommendations within nine months
after it is established.
Major Issues Raised by the United
States
On April 10, 2007, the United States
requested consultations with China with
respect to certain measures pertaining to
the protection and enforcement of
intellectual property rights in China.
The first matter on which the United
States has requested consultations
concerns the thresholds that must be
met in order for certain acts of
trademark counterfeiting and copyright
piracy to be subject to criminal
procedures and penalties. In this regard,
the measures at issue include the
following, as well as any amendments
and related or implementing measures:
the Criminal Law of the People’s
Republic of China, in particular Articles
213, 214, 215, 217, 218, and 220; and
two interpretations by the Supreme
People’s Court and the Supreme
People’s Procuratorate on several issues
of concrete application of law in
handling criminal cases of infringing
intellectual property (one adopted on
November 2, 2004, and the other
adopted on April 4, 2007). It appears
that, because of these measures, certain
acts of trademark counterfeiting and
copyright piracy occurring on a
commercial scale in China are not
subject to criminal procedures and
penalties in China. These measure
appear to USTR to be inconsistent with
China’s obligations under Articles 41.1
and 61 of the Agreement on TradeRelated Aspects of Intellectual Property
Rights (‘‘TRIPS Agreement’’).
The second matter on which the
United States has requested
consultations concerns goods that
infringe intellectual property rights that
are confiscated by Chinese customs
authorities, in particular the disposal of
such goods following removal of their
infringing features. In this regard, the
measures at issue include the following,
as well as any amendments and related
or implementing measures: the
Regulations of the People’s Republic of
China for Customs Protection of
Intellectual Property Rights, in
particular Chapter 4 thereof, and 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, in
particular Chapter 5 thereof. It appears
that, because of these measures, the
customs authorities often appear to be
required to give priority to options for
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disposal of goods that infringe
intellectual property rights that would
allow such goods to enter the channels
of commerce (for instance, through
auctioning the goods after removing
their infringing features). The
requirement that infringing goods be
released into the channels of commerce
under the circumstances set forth in the
measures at issue appears to USTR to be
inconsistent with China’s obligations
under Articles 46 and 59 of the TRIPS
Agreement.
The third matter on which the United
States has requested consultations
concerns the denial of copyright and
related rights protection and
enforcement to creative works of
authorship, sound recordings, and
performances that have not been
authorized for publication or
distribution within China. For example,
it appears that works that are required
to undergo censorship review (or other
forms of pre-publication or predistribution review) before entering the
Chinese market are not protected by
copyright before the review is complete
and publication and distribution within
China has been authorized. In this
regard, the measures at issue include the
following, as well as any amendments
and related or implementing measures:
• The Copyright Law, in particular
Article 4;
• The Criminal Law, the Regulations
on the Administration of Publishing
Industry, the Regulations on the
Administration of Broadcasting, the
Regulations on the Administration of
Audiovisual Products, the Regulations
on the Administration of films, and the
Regulations on the Administration of
Telecommunication;
• The Administrative Regulations on
Audiovisual Products;
• The Administrative Regulation on
Publishing;
• The Administrative Regulations on
Electronic Publications;
• The Measures for the
Administration of Import of Audio and
Video Products;
• The Procedures for Examination
and Approval for Publishing Finished
Electronic Publication Items Licensed
by a Foreign Copyright Owner;
• The Procedures for Examination
and Approval of Importation of
Finished Electronic Publication Items
by Electronic Publication Importation
Entities;
• The Procedures for Recording of
Imported Publications;
• The Interim Regulations on Internet
Culture Administration; and
• The Several Opinions on the
Development and Regulation of
Network Music.
PO 00000
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20145
It appears that, because of the
Copyright Law, authors of works whose
publication or distribution has not been
authorized (and whose publication or
distribution is therefore prohibited)
appear not to enjoy the minimum
standards of protection specially
granted by the Berne Convention for the
Protection of Literary and Artistic
Works (1971) (the ‘‘Berne Convention’’)
in respect of those works (and may
never enjoy such protection if the work
is not authorized, or is not authorized
for distribution or publication in the
form as submitted for review). In
addition, the rights of authors of works
whose publication or distribution is
required to undergo pre-publication or
pre-distribution review appear to be
subject to the formality of successful
conclusion of such review. The
foregoing appears to USTR to be
inconsistent with China’s obligations
under Articles 9.1 and 41.1 of the TRIPS
Agreement. Furthermore, to the extent
that the Copyright Law also denies the
protection of certain rights to performers
and producers of sound recordings
during the period of any pre-publication
or pre-distribution prohibition, the
Copyright Law appears to be
inconsistent with China’s obligations
under Articles 14 and 41.1 of the TRIPS
Agreement.
In addition, it appears that the
measures at issue provide different predistribution and pre-authorization
review processes for Chinese nationals’
works, performances (or their fixations)
and sound recordings than for foreign
nationals’ works, performances (or their
fixations) and sound recordings. To the
extent that these different processes,
taken together with Article 4 of the
Copyright Law, result in earlier or
otherwise more favorable protection or
enforcement of copyright or related
rights for Chinese authors’ works,
Chinese performers’ performances (or
their fixations) and Chinese producers’
sound recordings than for foreign
authors’ works, foreign performers’
performances (or their fixations) and
foreign producers’ sound recordings, the
measures at issue appear to be
inconsistent with China’s obligations
under TRIPS Agreement Articles 3.1, 9.1
and 41.1.
The fourth matter on which the
United States has requested
consultations concerns the scope of
coverage of criminal procedures and
penalties for unauthorized reproduction
or unauthorized distribution of
copyrighted works. In particular, it
appears that unauthorized reproduction
of copyrighted works by itself—that is,
unauthorized reproduction that is not
accompanied by unauthorized
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20146
Federal Register / Vol. 72, No. 77 / Monday, April 23, 2007 / Notices
jlentini on PROD1PC65 with NOTICES
distribution—may not be subject to
criminal procedures and penalties.
Likewise, it appears that unauthorized
distribution of copyrighted works by
itself—that is, unauthorized distribution
that is not accompanied by
unauthorized reproduction—may not be
subject to criminal procedures and
penalties. In this regard, the measures at
issue include the Criminal Law, in
particular Article 217, as well as any
amendments, related measures, or
implementing measures. To the extent
that wilful copyright piracy on a
commercial scale that consists of
unauthorized reproduction—but not
unauthorized distribution—of
copyrighted works, and vice versa, may
not be subject to criminal procedures
and penalties under the law of China,
this would appear to USTR to be
inconsistent with China’s obligations
under Articles 41.1 and 61 of the TRIPS
Agreement.
Public Comment: Requirements for
Submissions
Interested persons are invited to
submit written comments concerning
the issues raised in the dispute.
Comments should be submitted (I)
Electronically, to FR0707@ustr.eop.gov,
with ‘‘China IPR Protection and
Enforcement (DS362)’’ in the subject
line, or (ii) by fax, to Sandy McKinzy at
(202) 395–3640, with a confirmation
copy sent electronically to the electronic
mail address above.
USTR encourages the submission of
documents in Adobe PDF format as
attachments to an electronic mail.
Interested persons who make
submissions by electronic mail should
not provide separate cover letters;
information that might appear in a cover
letter should be included in the
submission itself. Similarly, to the
extent possible, any attachments to the
submission should be included in the
same file as the submission itself, and
not as separate files.
Comments must be in English. A
person requesting that information
contained in a comment submitted by
that person be treated as confidential
business information must certify that
such information is business
confidential and would not customarily
be released to the public by the
commenter. Confidential business
information must be clearly designated
as such and ‘‘BUSINESS
CONFIDENTIAL’’ must be marked at the
top and bottom of the cover page and
each succeeding page. Persons who
submit confidential business
information are encouraged also to
provide a non-confidential summary of
the information.
VerDate Aug<31>2005
19:17 Apr 20, 2007
Jkt 211001
Information or advice contained in a
comment submitted, other than business
confidential information, may be
determined by USTR to be confidential
in accordance with section 135(g)(2) of
the Trade Act of 1974 (19 U.S.C.
2155(g)(2)). If the submitter believes that
information or advice may qualify as
such, the submitter—
(1) Must clearly so designate the
information or advice;
(2) Must clearly mark the material as
‘‘SUBMITTED IN CONFIDENCE’’ at the
top and bottom of the cover page and
each succeeding page; and
(3) Is encouraged to provide a nonconfidential summary of the
information or advice.
Pursuant to section 127(e) of the
URAA (19 U.S.C. 3537(e)), USTR will
maintain a file on this dispute
settlement proceeding, accessible to the
public, in the USTR Reading Room,
which is located at 1724 F Street, NW.,
Washington, DC 20508. The public file
will include non-confidential comments
received by USTR from the public with
respect to the dispute; if a dispute
settlement panel is convened or in the
event of an appeal from such a panel,
the U.S. submissions; the submissions,
or non-confidential summaries of
submissions, received from other
participants in the dispute; the report of
the panel; and, if applicable, the report
of the Appellate Body. The USTR
Reading Room is open to the public, by
appointment only, from 10:00 a.m. to
noon and 1 p.m. to 4 p.m., Monday
through Friday. An appointment to
review the public file (Docket WTO/DS–
362, China IPR Protection and
Enforcement Dispute) may be made by
calling the USTR Reading Room at (202)
395–6186.
Daniel Brinza,
Assistant United States Trade Representative
for Monitoring and Enforcement.
[FR Doc. E7–7612 Filed 4–20–07; 8:45 am]
BILLING CODE 3190–W7–P
OFFICE OF PERSONNEL
MANAGEMENT
Excepted Service
Office of Personnel
Management (OPM).
ACTION: Notice.
AGENCY:
SUMMARY: This gives notice of OPM
decisions granting authority to make
appointments under Schedules A, B,
and C in the excepted service as
required by 5 CFR 6.6 and 213.103.
FOR FURTHER INFORMATION CONTACT: C.
Penn, Executive Resources Services
PO 00000
Frm 00042
Fmt 4703
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Group, Center for Human Resources,
Division for Human Capital Leadership
and Merit System Accountability, 202–
606–2246.
SUPPLEMENTARY INFORMATION: Appearing
in the listing below are the individual
authorities established under Schedules
A, B, and C between March 1, 2007, and
March 31, 2007. Future notices will be
published on the fourth Tuesday of each
month, or as soon as possible thereafter.
A consolidated listing of all authorities
as of June 30 is published each year.
Schedule A
Section 213.3170 Millennium
Challenge Corporation
(a) All positions established to create
the Millennium Challenge Corporation.
No new appointments may be made
under this authority after September 30,
2007. Effective April 1, 2007.
Schedule B
No Schedule B appointments were
approved for March 2007.
Schedule C
The following Schedule C
appointments were approved during
March 2007.
Section 213.3303
the President
Executive Office of
Office of Science and Technology Policy
TSGS60046 Assistant Director for
Telecommunications and Information
Technology to the Chief of Staff and
General Counsel. Effective March 09,
2007.
TSGS60047 Deputy Chief of Staff and
Associate General Counsel to the
Chief of Staff and General Counsel.
Effective March 09, 2007.
Office of National Drug Control Policy
QQGS70004 Public Affairs Specialist
(Media Campaign) to the Associate
Director for Public Affairs. Effective
March 09, 2007.
QQGS70005 Confidential Assistant to
the Deputy Director for Supply
Reduction. Effective March 13, 2007.
Section 213.3304 Department of State
DSGS61217 Public Affairs Specialist
to the Assistant Secretary for Public
Affairs. Effective March 06, 2007.
DSGS61214 Staff Assistant to the
Director, Policy Planning Staff.
Effective March 09, 2007.
DSGS61220 Senior Advisor to the
Assistant Secretary Oceans,
International Environment and
Science Affairs. Effective March 16,
2007.
DSGS61219 Foreign Affairs Officer to
the Assistant Secretary. Effective
March 20, 2007.
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]]>Agencies
[Federal Register Volume 72, Number 77 (Monday, April 23, 2007)]
[Notices]
[Pages 20144-20146]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7612]
-----------------------------------------------------------------------
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
[Docket No. WTO/DS-362]
WTO Dispute Settlement Proceeding Regarding China--Measures
Affecting the Protection and Enforcement of Intellectual Property
Rights
AGENCY: Office of the United States Trade Representative.
ACTION: Notice; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of the United States Trade Representative (USTR) is
providing notice that on April 10, 2007, in accordance with the
Marrakesh Agreement Establishing the World Trade Organization (WTO
Agreement), the United States requested consultations with respect to
certain measures pertaining to the protection and enforcement of
intellectual property rights in China. That request may be found at
https://www.wto.org contained in a document designated as WT/DS362/1.
USTR invites written comments from the public concerning the issues
raised in this dispute.
DATES: Although USTR will accept any comments received during the
course of the consultations, comments should be submitted on or before
May 7, 2007 to be assured of timely consideration by USTR.
ADDRESSES: Comments should be submitted (i) Electronically, to
FR0707@ustr.eop.gov, with ``China IPR Protection and Enforcement
(DS362)'' in the subject line, or (ii) by fax, to Sandy McKinzy at
(202) 395-3640, with a confirmation copy sent electronically to the
electronic mail address above, in accordance with the requirements for
submission set out below.
FOR FURTHER INFORMATION CONTACT: Steven F. Fabry, Associate General
Counsel, Office of the United States Trade Representative, 600 17th
Street, NW., Washington, DC, (202) 395-3150.
SUPPLEMENTARY INFORMATION: Section 127(b) of the Uruguay Round
Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires that notice and
opportunity for comment be provided after the United States submits or
receives a request for the establishment of a WTO dispute settlement
panel. In an effort to provide additional opportunity for comment, USTR
is providing notice that consultations have been requested pursuant to
the WTO Understanding on Rules and Procedures Governing the Settlement
of Disputes (``DSU''). If such consultations should fail to resolve the
matter and a dispute settlement panel is established pursuant to the
DSU, such panel, which would
[[Page 20145]]
hold its meetings in Geneva, Switzerland, would be expected to issue a
report on its findings and recommendations within nine months after it
is established.
Major Issues Raised by the United States
On April 10, 2007, the United States requested consultations with
China with respect to certain measures pertaining to the protection and
enforcement of intellectual property rights in China.
The first matter on which the United States has requested
consultations concerns the thresholds that must be met in order for
certain acts of trademark counterfeiting and copyright piracy to be
subject to criminal procedures and penalties. In this regard, the
measures at issue include the following, as well as any amendments and
related or implementing measures: the Criminal Law of the People's
Republic of China, in particular Articles 213, 214, 215, 217, 218, and
220; and two interpretations by the Supreme People's Court and the
Supreme People's Procuratorate on several issues of concrete
application of law in handling criminal cases of infringing
intellectual property (one adopted on November 2, 2004, and the other
adopted on April 4, 2007). It appears that, because of these measures,
certain acts of trademark counterfeiting and copyright piracy occurring
on a commercial scale in China are not subject to criminal procedures
and penalties in China. These measure appear to USTR to be inconsistent
with China's obligations under Articles 41.1 and 61 of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (``TRIPS
Agreement'').
The second matter on which the United States has requested
consultations concerns goods that infringe intellectual property rights
that are confiscated by Chinese customs authorities, in particular the
disposal of such goods following removal of their infringing features.
In this regard, the measures at issue include the following, as well as
any amendments and related or implementing measures: the Regulations of
the People's Republic of China for Customs Protection of Intellectual
Property Rights, in particular Chapter 4 thereof, and 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, in particular Chapter 5 thereof. It
appears that, because of these measures, the customs authorities often
appear to be required to give priority to options for disposal of goods
that infringe intellectual property rights that would allow such goods
to enter the channels of commerce (for instance, through auctioning the
goods after removing their infringing features). The requirement that
infringing goods be released into the channels of commerce under the
circumstances set forth in the measures at issue appears to USTR to be
inconsistent with China's obligations under Articles 46 and 59 of the
TRIPS Agreement.
The third matter on which the United States has requested
consultations concerns the denial of copyright and related rights
protection and enforcement to creative works of authorship, sound
recordings, and performances that have not been authorized for
publication or distribution within China. For example, it appears that
works that are required to undergo censorship review (or other forms of
pre-publication or pre-distribution review) before entering the Chinese
market are not protected by copyright before the review is complete and
publication and distribution within China has been authorized. In this
regard, the measures at issue include the following, as well as any
amendments and related or implementing measures:
The Copyright Law, in particular Article 4;
The Criminal Law, the Regulations on the Administration of
Publishing Industry, the Regulations on the Administration of
Broadcasting, the Regulations on the Administration of Audiovisual
Products, the Regulations on the Administration of films, and the
Regulations on the Administration of Telecommunication;
The Administrative Regulations on Audiovisual Products;
The Administrative Regulation on Publishing;
The Administrative Regulations on Electronic Publications;
The Measures for the Administration of Import of Audio and
Video Products;
The Procedures for Examination and Approval for Publishing
Finished Electronic Publication Items Licensed by a Foreign Copyright
Owner;
The Procedures for Examination and Approval of Importation
of Finished Electronic Publication Items by Electronic Publication
Importation Entities;
The Procedures for Recording of Imported Publications;
The Interim Regulations on Internet Culture
Administration; and
The Several Opinions on the Development and Regulation of
Network Music.
It appears that, because of the Copyright Law, authors of works
whose publication or distribution has not been authorized (and whose
publication or distribution is therefore prohibited) appear not to
enjoy the minimum standards of protection specially granted by the
Berne Convention for the Protection of Literary and Artistic Works
(1971) (the ``Berne Convention'') in respect of those works (and may
never enjoy such protection if the work is not authorized, or is not
authorized for distribution or publication in the form as submitted for
review). In addition, the rights of authors of works whose publication
or distribution is required to undergo pre-publication or pre-
distribution review appear to be subject to the formality of successful
conclusion of such review. The foregoing appears to USTR to be
inconsistent with China's obligations under Articles 9.1 and 41.1 of
the TRIPS Agreement. Furthermore, to the extent that the Copyright Law
also denies the protection of certain rights to performers and
producers of sound recordings during the period of any pre-publication
or pre-distribution prohibition, the Copyright Law appears to be
inconsistent with China's obligations under Articles 14 and 41.1 of the
TRIPS Agreement.
In addition, it appears that the measures at issue provide
different pre-distribution and pre-authorization review processes for
Chinese nationals' works, performances (or their fixations) and sound
recordings than for foreign nationals' works, performances (or their
fixations) and sound recordings. To the extent that these different
processes, taken together with Article 4 of the Copyright Law, result
in earlier or otherwise more favorable protection or enforcement of
copyright or related rights for Chinese authors' works, Chinese
performers' performances (or their fixations) and Chinese producers'
sound recordings than for foreign authors' works, foreign performers'
performances (or their fixations) and foreign producers' sound
recordings, the measures at issue appear to be inconsistent with
China's obligations under TRIPS Agreement Articles 3.1, 9.1 and 41.1.
The fourth matter on which the United States has requested
consultations concerns the scope of coverage of criminal procedures and
penalties for unauthorized reproduction or unauthorized distribution of
copyrighted works. In particular, it appears that unauthorized
reproduction of copyrighted works by itself--that is, unauthorized
reproduction that is not accompanied by unauthorized
[[Page 20146]]
distribution--may not be subject to criminal procedures and penalties.
Likewise, it appears that unauthorized distribution of copyrighted
works by itself--that is, unauthorized distribution that is not
accompanied by unauthorized reproduction--may not be subject to
criminal procedures and penalties. In this regard, the measures at
issue include the Criminal Law, in particular Article 217, as well as
any amendments, related measures, or implementing measures. To the
extent that wilful copyright piracy on a commercial scale that consists
of unauthorized reproduction--but not unauthorized distribution--of
copyrighted works, and vice versa, may not be subject to criminal
procedures and penalties under the law of China, this would appear to
USTR to be inconsistent with China's obligations under Articles 41.1
and 61 of the TRIPS Agreement.
Public Comment: Requirements for Submissions
Interested persons are invited to submit written comments
concerning the issues raised in the dispute. Comments should be
submitted (I) Electronically, to FR0707@ustr.eop.gov, with ``China IPR
Protection and Enforcement (DS362)'' in the subject line, or (ii) by
fax, to Sandy McKinzy at (202) 395-3640, with a confirmation copy sent
electronically to the electronic mail address above.
USTR encourages the submission of documents in Adobe PDF format as
attachments to an electronic mail. Interested persons who make
submissions by electronic mail should not provide separate cover
letters; information that might appear in a cover letter should be
included in the submission itself. Similarly, to the extent possible,
any attachments to the submission should be included in the same file
as the submission itself, and not as separate files.
Comments must be in English. A person requesting that information
contained in a comment submitted by that person be treated as
confidential business information must certify that such information is
business confidential and would not customarily be released to the
public by the commenter. Confidential business information must be
clearly designated as such and ``BUSINESS CONFIDENTIAL'' must be marked
at the top and bottom of the cover page and each succeeding page.
Persons who submit confidential business information are encouraged
also to provide a non-confidential summary of the information.
Information or advice contained in a comment submitted, other than
business confidential information, may be determined by USTR to be
confidential in accordance with section 135(g)(2) of the Trade Act of
1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information
or advice may qualify as such, the submitter--
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as ``SUBMITTED IN CONFIDENCE''
at the top and bottom of the cover page and each succeeding page; and
(3) Is encouraged to provide a non-confidential summary of the
information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR
will maintain a file on this dispute settlement proceeding, accessible
to the public, in the USTR Reading Room, which is located at 1724 F
Street, NW., Washington, DC 20508. The public file will include non-
confidential comments received by USTR from the public with respect to
the dispute; if a dispute settlement panel is convened or in the event
of an appeal from such a panel, the U.S. submissions; the submissions,
or non-confidential summaries of submissions, received from other
participants in the dispute; the report of the panel; and, if
applicable, the report of the Appellate Body. The USTR Reading Room is
open to the public, by appointment only, from 10:00 a.m. to noon and 1
p.m. to 4 p.m., Monday through Friday. An appointment to review the
public file (Docket WTO/DS-362, China IPR Protection and Enforcement
Dispute) may be made by calling the USTR Reading Room at (202) 395-
6186.
Daniel Brinza,
Assistant United States Trade Representative for Monitoring and
Enforcement.
[FR Doc. E7-7612 Filed 4-20-07; 8:45 am]
BILLING CODE 3190-W7-P
