Session III: Issues Concerning Enforcement and Dispute Resolution (Steven Tepp)

Tepp, Steven

Undergirding really all the discussion that we’ve been having today is a fundamental truth that hasn’t actually been articulated. I wanted to just give that voice as I begin my remarks, and that is: foreign piracy of copyrighted works is widespread, pervasive, and persistent. It’s been going on for decades. You can go back and read the Special 301 reports that Probir and his predecessors, including Stan, have overseen and published, going back to the 1980s. And there is massive theft. The mode and methodology has changed over the years, but there’s a real problem out there. For a period of time, we were able to address that through norm setting, the WIPO, but the problem there is there was no real enforcement mechanism. It has this International Court of Justice adjudication, but there were really no teeth to that. So it was really left to a matter of bilateral political pressure, and even the trade sanctions. And back in that age, that era, the United States did impose trade sanctions on occasion, bilaterally, unilaterally. With the adoption of the TRIPS agreement as part of the WTO, we have both a more modern and extensive set of standards, including enforcement standards, which generally didn’t exist in WIPO documents. And we have a dispute resolution process that allowed a neutral third party adjudication of disputes, which were beneficial. Unfortunately, as was pointed out earlier, the TRIPS standards are now about a quarter century old. And as we’re undergoing continual innovation and development in marketplace practices, as well as piracy practices, it’s a fundamental necessity of global standards to keep pace. The reality is that the member states at WTO, and WIPO these days, are not willing to do that. Indeed, even a discussion of existing enforcement standards in a non-norm setting granulite TRIPS council is met with howls of protest.5 So it should be no surprise that countries whose industries are highly valued—like the United States—have sought other means to introduce modern norms.6 And that’s what we see. Thus, you have more regional and bilateral agreements. We can debate whether that’s good, bad or indifferent. But that’s why it’s happened.


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November 3, 2017


These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School.