Censoring the Censors in the WTO - Southwestern Law School

22 J. Int’l Media & Entertainment Law Vol. 3, No. 1
As is discussed in further detail in Section III of this article, the WTO
free trade rules commit each WTO member to ensure that its laws and
regulations provide minimum protection to intellectual property rights
without regard to the nationality of the intellectual property rights
owner or the property concerned 20 and do not restrict market access
to the goods and services produced or offered by the nationals of the
other WTO members. 21 In general, these commitments exist regardless
of whether a WTO member possesses a domestic industry that offers a
good or service that is similar or “like” 22 a good or service in another
member, and this commitment not to discriminate in favor of a domestic
industry producing or offering a “like” good or service is referred to as
the “national treatment principle.” 23 The public morals exception is incorporated
into each of the major WTO agreements, 24 and, with respect
to each such agreement, the exception excuses any government measure
which is applied in a non-discriminatory manner 25 and is “necessary
http://portal.unesco.org/la/convetion_p.asporder=alpha&language=E&KO=31038
(accessed Feb. 17, 2007), and the promoters of this Convention advocate the adoption
of a more expansive cultural exemption in the WTO. Claire Wright, Toward a
New Cultural Exemption in the WTO, chapter in Multiculturalism And International
Law (Sienho Yee & Jacques-Yvan Morin, eds. Brill 2009), at 656 (citing
Michael Hahn, A Clash of Cultures The UNESCO Diversity Convention and International
Trade Law, 9:3 J. of Int’l Econ. L. 515-52 (Oxford Univ. Press, 2006), available
at jiel.oxfordjournals.org/cgi/ content/full/9/3/515(accessed Feb. 18, 2007) and
Sacha Wunsch-Vincent, The WTO, The Internet and Trade in Digital Products:
EC-US Perspectives 198, n. 149 (Hart Publishing 2006) (internal citations omitted.)
[hereinafter “Wunsch-Vincent”].
20. TRIPS Agreement, Art. 1, 3; Art. 3, 1; and Art. 27, 1.
21. GATT 1994, Article XI. A WTO member’s commitment not to restrict foreign
service suppliers’ access to its domestic market extends only to those specific service
industries that it listed in its Schedule of Specific Commitments under the GATS.
GATS, Art. XVI, 1.
22. A “like” good or service is defined differently in different WTO agreements and
even in the different provisions of the same WTO agreement, and panels and the Appellate
Body consider whether “imported and domestic products are ‘like’ on a case-bycase
basis.” See, e.g., Japan—Alcoholic Beverages, WT/DS10/AB/R (adopted on November
1, 1996) [hereinafter “Japan—Alcoholic Beverage”], at H.1(a) (citing Report of
the Working Party on Border Tax Adjustments, BIS 18S/97, 18). As the Appellate Body
in Japan—Alcoholic Beverages stated, the GATT 1947 panel that decided Report of the
Working Party on Border Tax Adjustments, suggested “[s]ome criteria . . . for determining,
on a case-by-case basis, whether a product is “similar”: the product’s end-uses in a
given market; consumers’ tastes and habits, which change from country to country; the
product’s properties, nature and quality.” Id. The Appellate Body in Japan—Alcoholic
Beverages also concluded that “[i]f sufficiently detailed, tariff classification can be a
helpful sign of product similarity.” Id.
23. GATT 1994, Art. III. As a WTO member was not required to liberalize any specific
service industry, it also could agree to liberalize an industry to a limited extent,
e.g., by failing to commit to the national treatment principle with respect to that industry.
GATS, Art. XVII, 1.
24. Supra note 22.
25. See, e.g., GATT 1994, Art. XX (introductory or “chapeau” paragraph).
3058-088-3pass-02_Wright-r03.indd 22
6/30/2010 12:01:58 PM