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| WTO Public Forum 2014 |
Introduction
At the outset, the author
would like to make it clear that the scope of this article is limited to Internet
Censorship and not Internet Surveillance or Copyright issues or other related
issues. The author intends to explore the possibility of Internet Censorship
acting as a trade Barrier in the light of WTO Laws. During this exercise, the
author would also touch upon the incidental aspects of Internet Censorship such
as Internet Control, Cross-border Gambling, and Online Gaming etc. The prime focus shall be on testing these
aspects on the anvil of WTO Laws.
Now deliberate upon the
following events that have happened over the past few years.
1. Mexican
Telecommunications Giant, Telemax blocks all Mexicans from visiting the website
of Skype (An Internet Telephony Service)[1].
2. United States does a
major crackdown on Online Gambling Services originating from the Island Nation
of Antigua (US-Gambling Case)[2].
3. The Great Firewall of
China is erected by the Chinese Government to prevent its citizens from
visiting important Foreign Websites[3].
4. France orders Yahoo!
Website to take down a Nazi-Adoring Stuff from its Auction Section[4].
5. South Korea blocks access
to major North Korean Websites[5].
The common thread that
connects all these controversies is internet. But there is something else. All
the above-mentioned disputes are also forms of Trade Disputes between various
nations. Till date, there are very few scholars and very few laws that deal with
the trade that generates with the spread of internet. Law of the WTO definitely
touches down on some aspects of the trade related to internet. But to what
extent it really governs the Internet is the moot question to be asked.
The WTO Founders never thought
that Trade in Services could have a completely separate existence from Trade in
Goods. As a result, they entered into a single agreement[6]
to govern both the trade in goods as well as the trade in services. However,
today internet and communication technology have assumed a monstrous proportion
in overall trade. A good example is that of China. It is said that “Internet
could contribute up to 22% of China's GDP growth through 2025, via increased
productivity and adoption of internet application across a number of sectors,
according to the latest research by consultancy McKinsey”[7].
Thus, the classical concept of international trade is trade in goods, such as
wheat and wine is slowly withering away[8].
Internet censorship usually
refers to a government's unjustified scrutiny and control of online speech or
government-approved control measures[9].
This is usually associated with non-democratic nations like China and North
Korea. On the other hand, Internet Control is an inoffensive and mild term
usually associated with democratic countries like Hong Kong and South Korea.
Various Countries have
enacted legislations to define the limits of Internet Censorship and deal with
incidental issues such as Online Piracy and protection of IP Rights. Some of
the key pending legislations in this regard are the SOPA (Stop Online Piracy
Act) and PIPA (Protection of IP Act).
SOPA
and PIPA
In 2011, a Bill called as “Stop
Online Piracy Act” or SOPA was introduced in the US House of
Representatives. The proposed bill had extra-territorial jurisdiction to curb
online piracy related to copyright infringement and other IP related offences[10].
A huge lobby of Film Makers, Pharma Giants and other Media Businesses backed
this bill. However, it had a huge number of opponents as well. The opponents
included companies like Google, Facebook, LinkedIn, Wikipedia, Gaming
Companies. They believed that such a bill would curtain the freedom of speech
and expression to a great extent and thereby restrict creativity and
innovation. Due to its proposed extra-territorial jurisdiction, it evoked a
huge negative response from foreign governments as well. Finally, it was
decided to postpone the consideration of the bill till a larger consensus is
achieved[11].
A similar bill called as “Preventing
Real Online Threats to Economic Creativity and Theft of Intellectual Property
Act”[12]
or PIPA was also introduced in the Senate. This bill also had extra-territorial
application. In the wake of huge protests, this bill also could not be passed[13].
The point I am trying to
make is that it is very difficult to pass laws that have extra-territorial
application with respect to IPRs. Internet Censorship is not something that
could easily be achieved by the governments in countries with a democratic
setup. However, this does not hold true for non-democratic countries like
China.
In the coming chapters, we
will understand the various provisions of law of the WTO that govern internet
censorship. We will also understand the important case laws of WTO that have
dealt with this aspect such US-Gambling Case, China-Audio-visuals etc.
Subsequently, we will appreciate the emerging issues related to Internet Based
Services and law of the WTO. Finally, the conclusion shall contain my own
analysis and opinion on the subject.
WTO and
Internet Censorship
GATS[14]
is basically an international agreement that governs how WTO members may
regulate trade in services. The term ‘services’ has nowhere been defined under
GATS. The only reference has been made under Article I of GATS which states
that “‘services’ includes any service in any sector except services supplied
in the exercise of governmental authority”.
As we know that there are
four modes of supply under GATS[15]:
1. Cross-Border Supply
2. Consumption Abroad
3. Commercial Presence
4. Movement of Natural
Persons
The present position is that
Internet Based Services fall under Mode 1 i.e. Cross-Border Supply of Services[16].
GATS also provides for ‘Market Access’ Commitments. It states that[17]:
“Each Member shall accord services and service suppliers of any other Member
treatment no less favourable than that provided for under the terms,
limitations and conditions agreed and specified in its Schedule.”
Article XVI:2[18]
talks about quantitative limitations placed on the Foreign Service Providers.
These quantitative limitations were discussed in the US-Gambling Case which we
shall discuss in the next chapter.
The Case of United
States — Measures Affecting the Cross-Border Supply of Gambling and Betting
Services
The dispute involved the
Island Nation of Antigua and Barbuda that had a huge Online Gambling Industry.
A major chunk of the consumers of this industry were US residents. In 2002, US
government led a major crackdown on Online Gambling Services. It exerted heavy
pressure on intermediaries such as Citibank and Paypal that were used to make
payments. As a result, most of the players in industry went out of business in
Antigua. Government of Antigua stated that “the effect of the US enforcement
of its laws is to hurt the small economy of Antigua and Barbuda, which is struggling
to survive in a world of intense competition in the trade of goods and
services.”[19]
Since Antigua was a
full-fledged member of the WTO, in June 2003, it filed a complaint against the
United States in WTO, arguing that the various US actions and enforcements
relating to gambling and betting services, including federal laws such as the “Wire
Act”, the “Travel Act” and the “Illegal Gambling Business Act”
(“IGBA”) were a violation of the GATS. The Service under contention was
categorized as “Cross Border Supply” i.e. Mode 1 of GATS. Following were key
findings of the Panel and the Appellate Body[20]:
1. The entry, “other
recreational services (except sporting)”, in the US Schedule of Commitments
must be interpreted as including “gambling and betting services” within
its scope.
2. United States acted
inconsistently with Art. XVI:1 and 2, as the US federal laws at issue, by
prohibiting the cross-border supply of gambling and betting services where
specific commitments had been undertaken, amounted to a “zero quota” that fell
within the scope of, and was prohibited by, Art. XVI:2(a) and (c). This is
particularly interesting as the US had imposed a similar ban on gambling
services internally as well and not just on Foreign Service providers. It was
held that an indiscriminate “zero quota” would also amount violation of Market
Access Commitments under Article XVI.
3. The US Government tried
to take advantage of Article XIV(a) of GATS which talks about public morals. The
Appellate Body modified the Panel's conclusion and said that the “United
States has demonstrated that the Wire Act, the Travel Act, and the Illegal
Gambling Business Act are measures "necessary to protect public morals or
maintain public order", in accordance with paragraph (a) of Article XIV,
but that the United States has not shown, in the light of the Interstate
Horseracing Act, that the prohibitions embodied in those measures are applied
to both foreign and domestic service suppliers of remote betting services for
horse racing and, therefore, has not established that these measures satisfy
the requirements of the Schedule of Commitments”.
Thus we see that this case
has very interesting and far reaching implication on the way the Internet
Services could be regulated in the future. It is also clear now that Internet
Services fall within Mode 1 of GATS i.e. Cross-border Supply.
The finding that gambling
is included within the ambit of ‘other recreational services’ shows that
other internet services such as Online Gaming also have the potential to come
within ‘other recreational services’. There are a variety of Online
Games. The common element is that most of the online games are played across
the borders and are not restricted to a nation in particular. This is
particularly important for USA as most of the Online Gaming giants such as
Valve Corporation, Riot Games, Activision Blizzard are located in USA. Some of
the games produced by these corporations are banned in countries like China,
Saudi Arabia etc. I do not think that the day would be far when US approaches
WTO and alleges that a country has violated GATS by not allowing its games to
be played and published on its soil.
The Case of
China –
Measures Affecting the Protection and Enforcement of Intellectual Property
Rights
In 2007, the United States
alleged that China's Copyright Regime was in breach of its obligations under
the Berne Convention[21],
as consolidated by the Trade Related Aspects of Intellectual Property Rights
(“TRIPS Agreement”).[22]
There were three measures in
issue[23].
1. The USA disputed China's
Criminal Law and related Supreme People's Court Interpretations which establish
thresholds for criminal procedures and penalties for infringements of
intellectual property rights.
2. China's Regulations for
Customs Protection of Intellectual Property Rights and related Implementing
Measures that govern the disposal of infringing goods confiscated by customs
authorities. It was alleged that these confiscated items infringed IP rights
and the owners of such good were denied copyright and related IP protection[24].
3. It was also alleged that
Article 4 of China's Copyright Law which denies protection to works that have
not been authorized for publication or distribution within China violated
Articles 9.1[25]
and 41.1[26]
of the TRIPS Agreement and Article 5.1[27]
of the Berne Convention.
The third allegation is the
most important one for the purpose of our area of study. The Chinese Government
claimed protection under Article 17 of the Berne Convention[28].
The Panel found that “while China has the right to prohibit the circulation
and exhibition of works, as acknowledged in Article 17 of the Berne Convention,
this does not justify the denial of all copyright protection in any work.
China's failure to protect copyright in prohibited works (i.e. that are banned
because of their illegal content) is therefore inconsistent with Art. 5(1) of
the Berne Convention as incorporated in Article 9.1, as well as with Article
41.1, as the copyright in such prohibited works cannot be enforced”[29].
This is particularly
important for Internet Services. Almost all the Internet Services have some
form of copyright or trademark. This is also important as goods such as movies
and songs are being digitally delivered today though the medium of internet.
This takes to another interesting case of China--Measures Affecting Trading
Rights and Distribution Services for Certain Publications and Audiovisual
Entertainment Products.
The Case of China
– Measures Affecting Trading Rights and Distribution Services for Certain Publications
and Audiovisual Entertainment Products[30]
In this case, the US alleged
that a series of Chinese measures regulating activities relating to the
importation and distribution of certain publications and audiovisual
entertainment products violated the various provisions of WTO.
Key Findings of the
Panel/Appellate Body
1. It was found that
provisions in China's measures that either limit to wholly State-owned
enterprises importation rights regarding, or prohibit foreign-invested
enterprises in China from importing, reading materials, AVHE products, sound
recordings, and films, were inconsistent with China's obligation, under paras.
1.2[31]
And 5.1 of China's Accession Protocol[32]
and paras. 83(d) and 84(a) of China's Accession Working Party Report, to grant
the right to trade.
2. It was also held that
China had not demonstrated that the relevant provisions were “necessary”
to protect public morals, and that, as a result, China had not established that
these provisions were justified under Article XX(a) of GATT.
3. It was found that the
entry “Sound recording distribution services” in sector 2.D of China's
GATS Schedule extends to the distribution of sound recordings in electronic
form, and China's measures prohibiting foreign-invested entities from engaging
in the distribution of sound recordings in electronic form were inconsistent
with the national treatment obligation in Article XVI (Market Access) and
Article XVII (National Treatment) of GATS.
In this case, the Chinese
Government tried to take shelter of the Public Moral Doctrine [Article XIV(a)
of GATS[33]]
stating that “cultural goods and services are vectors of cultural identity
and value, the importation and distribution of such goods may have a negative
impact on public morals, which are of vital importance to China”[34].
However, as stated, it was concluded that China had not demonstrated that the
relevant provisions were “necessary” to protect public morals, thereby, failing
the ‘necessity test’[35].
This was again a clear case
of Internet Censorship that was brought to the WTO. In the garb of protecting
the culture, the countries are clearly trying to restrict the importation of
audiovisual products. As we know that today most of these audiovisual products
are delivered digitally through internet, such censorship on these audiovisual
products indirectly restricts and puts a limitation on the usage of internet as
well.
Other Cases
of Internet Censorship
It is not that China is the
only country that engages into Internet Censorship. There are tens of Middle
East countries as well that severely restrict the usage of internet by its
citizens[36].
However, China being one of the largest economies of the world has trade
interests with almost every nation on Earth. Thus any violation on its part
attracts all eyes and deserves greater attention since it is the leader as well
as the trend-setter in Internet Censorship. There are two other instances that
deserve our consideration.
Google
Corporation v. China
In 2010, Google.com suddenly
withdrew from the Chinese Market. It was shocking and perplexing to see the
Internet Search Engine Giant to pull out itself from China that could have been
its biggest market. Google said that Chinese Policies towards internet were
restrictive and its commitment to freedom of speech and basic moral standard
prevailed over the potential returns to be gained from the blossoming Chinese
internet market[37].
However, the real reason was
that the China’s licensed Internet Service Providers performed extensive
filtering and this process immensely slowed down the operations of Google
making it non-competitive with the Chinese Operated Domestic Search Engines.
And in 2010, it suffered a massive Cyber Attack that stole a lot of private
information from its database. Hence, Google decided to end its business in
China. This clearly explains how Internet Censorship can severely affect the
Trade Liberalization Commitments that a country makes within the WTO Framework.[38]
Microsoft
Corporation v. China
The relationship of
Microsoft Corporation with China has been nothing short of a rollercoaster
ride. Microsoft is undoubtedly the biggest Operating System Giant in the world
and China has one of the highest number of Microsoft Operating System Users in
the world. However, the financial side of this picture is not so rosy. Most of
the Microsoft operating systems used in China are counterfeited or pirated
versions[39].
Hence, they do not account towards the actual sale and profits. Out of all the
Operating Systems, Windows XP is the most popular one. From a long time,
Microsoft Corporation has been pressing the US Government to take up the
software piracy issue at WTO Forum[40].
However, till now no concrete results have been achieved in this regard.
Surprisingly, Chinese
Government is one of the biggest buyers of the Windows XP Operating System[41].
Earlier this year, Microsoft announced that it is stopping the support that is
given to XP and that it would no longer be protected against vulnerable threats.
It is true that Windows XP is a very old operating system but supporting it
continually definitely meant carrying old baggage for old time’s sake for the
Microsoft Corporation. This step made the Chinese Government furious and it
decided to boycott the Microsoft Operating Platform. However, most of the IT
infrastructure of Chinese Government is based on Windows XP. Thus it is
certainly very difficult, expensive and time-consuming for Chinese Government
to shift to some other platform.
Now, two days ago, I news
came that a Chinese regulator is conducting an anti-monopoly investigation into
Microsoft Corporation over its Windows operating system[42].
The details are unknown and it is highly unlikely that Microsoft could have
established monopoly in China since over 95% of the Windows Operating Systems
in China are fake and counterfeit. Also, In May, Chinese government offices
were banned from installing Windows 8, Microsoft's latest operating system, on
new computers[43].
It is being said that this is the Chinese of criticizing Microsoft decision to
end Windows XP’s Support. This clearly reflects how China restricts Internet
and Internet related activities.
Summary of Stand
of DSU over Internet Censorship
1. The US-Gambling ruling
makes it amply clear that “it is required to include cross-border,
internet-based service transactions into GATS “mode 1” commitments”. This means
that, as of now, Members must carefully re-read their mode 1 commitments as
they extend to electronic cross-border supply of services.[44]
2. WTO Dispute Settlement
Body is “Technologically Neutral”. This is demonstrated by the fact that the
definition of “sound recording distribution services” was found to cover a
non-physical medium, such as the internet.[45]
3. The U.S.-Gambling case
interpreted “other recreational services” to include online gambling. The
interpretation of ‘data processing services’, ‘Online Games’ and ‘online search
engines’ are likely to follow the same path.[46]
4. The exceptions under
Article XIV(a) of GATS and Article XX(a) of GATT of Public Moral or Public
Order requires to pass the ‘necessity test’ to compare the challenged measures
with the reasonably available alternative.[47]
Emerging
Issues
1. The way the E-commerce is
rising in India is clearly indicating that sooner or later, a concrete domestic
law would be needed to govern internet based services. US giant Amazon is
spreading its legs in India by providing online delivery of goods through
internet. Similar facility is also being provided by Flipkart. How these
organizations and modes of supply can be governed under GATS is an important
question to be asked since in these cases, Mode 1 will most likely be not
applicable. Mode 3 i.e. Commercial Presence definitely makes more sense as the
mode of supply of service in such cases.
2. Online Gaming Industry
has assumed massive proportions. A study states that there are close to 1.2
billion people who play games online now. Billions of Dollars are being
invested into the development of such games. The issue whether Online Games
(excluding Online Gambling) are goods or services has not yet been addressed at
the WTO platform. Any finding in this regard will affect billions of people
across the borders[48].
3. The way we interact with
electronic devices is changing at a dramatic pace. It is the way we interact
with things that usually governs the mode of supply or characterizes whether a
thing would fall in the category of ‘goods’ or ‘services’. Intel Corporation
recently unveiled a “Smart Shirt aimed at fitness enthusiasts keen to
keep track of their vitals, although it could also be useful for tracking the
health of small children and the elderly”[49].
Now, whether such tech wearables will be goods or services? Or what aspect of
them will be goods and what aspect will be services is a question that cannot
be answered at this stage.
4. The number of Mobile Apps
as well the number of Mobile App Developers is on a constant rise. There are
millions of mobile applications now and hundreds of thousands of Mobile App
Developers[50].
This is certainly an unexplored area as Mobile Apps are definitely more
pervasive and intruding than a normal computer software. A lot of these apps
are services that conduct trade in various manners. The developers enter into
complex agreement with the Operating System Provider and subsequently enter
into agreement with the consumers of these applications. If ever a dispute
relating to mobile apps comes up before the DSB, it will be interesting to
watch how these agreements and contracts will be judged on the anvil of WTO
laws.
5. There are thousands of
Online Games now that provide virtual currencies through which in-game benefits
can be purchased. A whole new virtual world is taking shape. These virtual
currencies are brought by people across the world. There are even cyber thieves
that steal such currencies. It is a whole new and unexplored area for Money
Laundering. The present laws are wholly inadequate to deal with such threats[51].
It will be interesting to analyse whether these virtual currencies are goods or
services or neither of them.
6. Whole new Pricing Models
of Online Services and Games has emerged. There are some Pricing Models that
offer freely downloadable content but charge price for using added services
only. There are other Online Pricing Models that sell wholly intangible goods
and services that have no separate existence except in their own specific
virtual construct where they are bought and sold[52].
Whether such goods and services will be governed under GATS or GATT and if they
fall under GATT, under what mode of supply of service would they fall will be
exciting to watch.
We see that all the
above-mentioned emerging issues have the potential to be censored either by the
State itself or by the Private Corporations. In the US-Gambling Case, we saw
how government censorship of an Online Industry violates Article VI:1 and
Article VI:2 of GATS. Similar censorships can also take place in future with
respect to the Mobile Industry, Online Gaming Industry, Tech Wearables etc.
I feel that it is high time
that governments over the world start taking internet related issues more
seriously. A guinea pig approach[53]
or a trial and error approach will be of no help in the long run.
Conclusion
and Opinion
Thus we see that Internet
Censorship clearly acts as a trade barrier as it violates market access
commitments (Article XVI of GATS) and other provisions of law of the WTO. When
countries accede to the WTO, they make commitments to liberalize trade and
grant right to trade within their jurisdictions. However, the area of operation
of Internet and Internet Based Services has remained more or less grey in this
respect. Unless a dispute is brought to the WTO, it cannot be shown or proved
that whether a definite action of internet censorship would amount to a trade
barrier or not.
The Case of China is
definitely a glaring one. It certainly reflects that non-democratic regimes
have least respect for individual as well as IP Rights. The monster of Internet
Censorship is now slowly transitioning itself into Internet Surveillance[54].
The illusion of control continues to pervade the majority of governments across
the world. I believe that the Case of China is a bad omen for the times to come
unless we start acting on these issues in a serious and methodical manner. The
wings of internet will continue to spread. A clear analysis of law regulating
the internet needs to be developed in this respect.
Thus there is increasing
helplessness as Internet is becoming more and more pervasive into our lives.
There are online games that offer virtual currencies and people are actually
buying those currencies. The number of Mobile App Developers is on a constant
rise. These developers are making money by selling their applications across
the borders. There is no clarity as to how GATS or GATT would govern these
trade in services if a dispute is brought in front of the WTO.
However, I feel that the WTO
is certainly realizing this as the WTO Annual Report of 2014 starts by talking
innovation boosting trade and Bali Package helping entrepreneurs setting up new
companies[55].
The focus is slowly but gradually shifting to understand the implications of
law in technology. There is a clear need to regard ‘Law and Technology’ as
subject in itself.
WTO has certainly come a
long way and its Dispute Settlement Body has proved that it would interpret its
laws in accordance with changing times and need. There is no other global law
that has the potential to govern Internet Based Services except WTO in the
future. This will be only possible if the Dispute Settlement Body continues to
adopt a lively and interpretative approach that it has adopted so far.
[2]
United States – Measures Affecting the Cross-Border Supply of Gambling and
Betting Services (DS285).
[3]
This is also called the Golden Shield Project. http://en.wikipedia.org/wiki/Golden_Shield_Project
[4] Yahoo!
Inc. v. La Ligue Contre Le Racisme et L'antisemitisme,; L'union Des Etudiants
Juifs De France, 433 F.3d 1199.
[6]
Marrakesh Agreement Establishing the World Trade Organization was an agreement
signed in Marrakesh, Morocco, on 15 April 1994, establishing the World Trade
Organization, which officially came into being on January 1, 1995.
[7] Internet
could contribute 22% of China's GDP growth through 2025, WantChinaTimes, 30th
July 2014, produced on http://www.wantchinatimes.com/news-subclass-cnt.aspx?cid=1202&MainCatID=12&id=20140729000031
[8]
This is the classic model of trade used by David Ricardo to demonstrate the
principle of comparative advantage.
[9]
Schmidt, Eric E.; Cohen, Jared (11 March 2014). "The Future of Internet
Freedom", New York Times.
[14]
Whole Text of the ‘General Agreement on Trade in Services’ can be found here. http://www.wto.org/english/docs_e/legal_e/26-gats_01_e.htm
[15]
Article I:2 of GATS.
[16] United
States — Measures Affecting the Cross-Border Supply of Gambling and Betting
Services, DS285.
[17]
Article XVI of GATS.
[18] Article
XVI:2 of GATS – In sectors where market-access commitments are undertaken,
the measures which a Member shall not maintain or adopt either on the basis of
a regional subdivision or on the basis of its entire territory, unless
otherwise specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers
whether in the form of numerical quotas, monopolies, exclusive service
suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service
transactions or assets in the form of numerical quotas or the requirement of an
economic needs test;
(c) limitations on the total number of service
operations or on the total quantity of service output expressed in terms of
designated numerical units in the form of quotas or the requirement of an
economic needs test;
(d) limitations on the total number of natural persons
that may be employed in a particular service sector or that a service supplier
may employ and who are necessary for, and directly related to, the supply of a
specific service in the form of numerical quotas or the requirement of an
economic needs test;
(e) measures which restrict or require specific types
of legal entity or joint venture through which a service supplier may supply a
service; and
(f) limitations on the participation of foreign
capital in terms of maximum percentage limit on foreign shareholding or the
total value of individual or aggregate foreign investment.
[19]
Frances Williams, Minnow Bets on Beating US at Internet Gambling,
Financial Times 9 (June 25, 2003).
[20]
The Summary of Key Findings can be read here. http://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds285sum_e.pdf
[21]
Berne Convention for the Protection of Literary and Artistic Works, available
at http://www.wipo.int/treaties/en/text.jsp?file_id=283698
[22]
Panel Report, China--Measures Affecting the Protection and Enforcement of
Intellectual Property Rights, WT/DS362/R (Jan. 26, 2009)
[24]
Para 2.3 of the Report.
[25] Article
9.1 of TRIPS - Members shall comply with Articles 1 through 21 of the Berne
Convention (1971) and the Appendix thereto. However, Members shall not have
rights or obligations under this Agreement in respect of the rights conferred
under Article 6bis of that Convention or of the rights derived therefrom.
[26] Article
41.1 of TRIPS - Members shall ensure that enforcement procedures as
specified in this Part are available under their law so as to permit effective
action against any act of infringement of intellectual property rights covered
by this Agreement, including expeditious remedies to prevent infringements and
remedies which constitute a deterrent to further infringements. These
procedures shall be applied in such a manner as to avoid the creation of
barriers to legitimate trade and to provide for safeguards against their abuse.
[27] Article
5.1 - Authors shall enjoy, in respect of works for which they are protected
under this Convention, in countries of the Union other than the country of
origin, the rights which their respective laws do now or may hereafter grant to
their nationals, as well as the rights specially granted by this Convention.
[28] Article
17 –Possibility of Control of Circulation, Presentation and Exhibition of
Works –The provisions of this Convention cannot in any way affect the right of
the Government of each country of the Union to permit, to control, or to
prohibit, by legislation or regulation, the circulation, presentation, or
exhibition of any work or production in regard to which the competent authority
may find it necessary to exercise that right.
[29]
Para 7 of the Report.
[31] Para
1.2 of China’s Accession Protocol - The WTO Agreement to which China
accedes shall be the WTO Agreement as rectified, amended or otherwise modified
by such legal instruments as may have entered into force before the date of
accession. This Protocol, which shall
include the commitments referred to in paragraph 342 of the Working Party
Report, shall be an integral part of the WTO Agreement.
[32] Para
5.1 of China’s Accession Protocol - Without prejudice to China's right to
regulate trade in a manner consistent with the WTO Agreement, China shall
progressively liberalize the availability and scope of the right to trade, so
that, within three years after accession, all enterprises in China shall have
the right to trade in all goods throughout the customs territory of China,
except for those goods listed in Annex 2A which continue to be subject to state
trading in accordance with this Protocol.
Such right to trade shall be the right to import and export goods. All such goods shall be accorded national
treatment under Article III of the GATT 1994, especially paragraph 4 thereof,
in respect of their internal sale, offering for sale, purchase, transportation,
distribution or use, including their direct access to end-users. For those goods listed in Annex 2B, China
shall phase out limitation on the grant of trading rights pursuant to the
schedule in that Annex. China shall
complete all necessary legislative procedures to implement these provisions
during the transition period.
[33] Article
XIV(a) of GATS - Subject to the requirement that such measures are not
applied in a manner which would constitute a means of arbitrary or
unjustifiable discrimination between countries where like conditions prevail,
or a disguised restriction on trade in services, nothing in this Agreement
shall be construed to prevent the adoption or enforcement by any Member of
measures: (a) necessary to protect public morals or to maintain public
order.
[34] Appellate
Body Report, China--Measures Affecting Trading Rights and Distribution Services
for Certain Publications and Audiovisual Entertainment Products,
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[35] Footnote
5 of GATS states that “the public order exception may be invoked only
where a genuine and sufficiently serious threat is posed to one of the fundamental
interests of society”.
[37]
Steven Levy, In the Plex: How Google Thinks, Works, and Shapes Our Lives
267-68 (2011).
[38]
Cynthia Liu, Internet Censorship As A Trade Barrier: A Look at the WTO
Consistency of the Great Firewall in the Wake of the China-Google Dispute,
42 Geo. J. Int'l L. 1199, 1200 (2011).
[44]
Sacha Wunsch-Vincent, The Internet, Cross-Border Trade in Services, and the
GATS: Lessons from U.S.--Gambling, 5 World Trade Rev. 319, 319 (2006).
[45]
Ada Bogliolo Piancastelli de Siqueira, It’s In the Way That You Use It:
Revisiting Trade and Human Rights in the Case of Online Censorship, 20 Sw.
J. Int'l L. 39 (2013).
[46]
Nancy J. King & Kishani Kalupahana, Choosing Between Liberalization and
Regulatory Autonomy under GATS: Implica-tions of U.S. Gambling for Trade in
Cross Border E-Services, 40 Van. J. Transnat'l L. 1189, 1198 (2007).
[47]
Steve Charnovitz, The Moral Exception in Trade Policy, 38 Va. J. Int'l L. 689,
742-43 (1998).
[48]
2013 State of Online Gaming Report, Spil Games Corporation.
[53]
In English, the term guinea pig is commonly used as a metaphor for a subject of
scientific experimentation, or any experiment or test in modern times. http://en.wikipedia.org/wiki/Guinea_pig#Scientific_research
[54] Chadwick,
Andrew, and Philip N. Howard, eds. Routledge handbook of Internet politics.
Taylor & Francis, 2010.
[55]
WTO Annual Report 2014, produced on http://www.wto.org/english/res_e/booksp_e/anrep_e/anrep14_e.pdf
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