IP hypocrisy: US likes WTO rulings only when it wins

The US likes to call out other countries for not being tough enough with intellectual property rules, and it tosses countries like Russia, China, and even Israel onto "watch lists" and "priority watch lists" in an attempt to force changes. But the US comes in for its share of IP-related criticism from other countries both small and large, too. When it happens, though, we're not nearly so quick to change our ways.

Two ongoing cases illustrate the point. First, the European Union is pushing for the US to change a pair of rules that it calls "long-standing trade irritants." Despite World Trade Organization rulings against it, the US has not yet corrected either case for a period of several years. Ambassador John Bruton, who represents the EU in the US, said in a statement late last week that he wants to see the matters resolved.

"As the stakes continue to grow in the intellectual property arena, the US should not weaken its voice in the debate by ignoring treaty obligations and WTO decisions," Bruton said. "American delay on fixing the 'Irish Music' and 'Havana Club' cases diminish the arguments that both the US and EU countries have against China and other countries that continue to tolerate widespread intellectual property rights infringement."

The so-called "Irish Music" dispute concerns the portion of US copyright law that lets restaurants and shops play broadcast music without compensating the copyright holders. As previous coverage of this issue shows, Europe takes a fairly hard-line stance on these payments; a UK car repair chain was even targeted by collecting societies because its mechanics played their radios loud enough that customers could hear them.

The WTO ruled against the US in 2000, and the US responded not by changing its laws, but by making payments directly to European collecting societies. Now, those payments have lapsed but the US law remains.

The Havana Club issues stems from the long-standing US effort to impose sanctions on Cuba. The US reduced the rights of US companies who owned trademarks "which previously belonged to a Cuban national or company expropriated in the course of the Cuban revolution." Such marks, including "Havana Club Rum," were no longer protected in the US, could not be renewed, and could not be enforced. This makes EU companies that have invested in Cuban business less than pleased, especially when they believe that US drink makers were behind the rule change.

The US also lost a WTO ruling on the matter and was to have complied by 2005. To date, it has not.

The second case concerns Antigua and Barbuda, a small Caribbean country home to all sorts of online vices, including gambling and DRM circumvention. Antigua took the US to the WTO years ago over charges that the US was unfairly criminalizing access to Antiguan gambling websites while still allowing US-based horse racing sites to function. The WTO ruled against the US on several occasions, including a 2007 ruling that found the US had not yet bothered to comply with previous rulings.

In retaliation, Antigua has announced a radical plan in an attempt to force its larger neighbor to play ball. The Antiguan government has recently stated that it will allow piracy of US intellectual property such as movies and music unless the US changes its gambling policy (though this move has yet to be authorized by the WTO).

Apparently, it's easy to get hot and bothered when it's industries from your country that claim to be badly affected by rules elsewhere. When it comes to the claims of other countries, though, even claims that have been validated by the WTO, it's much easier to see the complexity of the situation, to spend years arguing those complexities before judges, and to do nothing even when compelled by rulings.

This sort of behavior makes it that much harder to assert some kind of moral high ground when China, Russia, and others pick and choose which of their WTO obligations they are going to comply with.