WTO A/V Products Case I: Don’t Try This At Home

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I’m halfway through the opinion of the Audio/Visual Products case won by the US against China. I can’t say I’ve paid attention to each word, though; this is quite mind-numbing.

Kids, for God’s sake, don’t try this at home. You’ll go blind.

My favorite bit of technical nonsense concerns whether theatrical film imports are goods or services. As a lawyer, I can see the merit in this distinction, and since China used it as a major part of its defense, it had to be addressed.

As a human being, I am speechless. Pages and pages of discussion on the distinction between “Dian Ying” and “Dian Ying Piao Jian” (basically the difference between saying “movie” and “film” — sort of, but not exactly).

Seriously, this stuff should be treated as satire. I’ll tell you one thing, as the entertainment industry (and I include books and sound to tv and theatricals) goes digital, I don’t know what these folks are going to do. Where’d the product go? How do we regulate this, uh, code?

I’ll move on to the panel’s conclusion in another post, but this is too fun to ignore.

China was basically saying that showing a movie is a service, and since some of the US complaints dealt with goods, the US should lose.

Yeah, I thought that was a weak argument too.

Anyway, the US said that just because a product is used in connection with a provision of a service, the rules regarding products should still apply. The Panel says this in very quotable form:

The United States also observes that China has provided no textual basis in the WTO Agreement in support of its assertion that a good used to provide a service is no longer a good.

Now that is cool. The US even came up with an analogy:

The United States provides the example of a stethoscope, a good that can be imported and commercially exploited through the provision of health care services. According to the United States, the fact that the stethoscope is used to provide health care services does not mean that a stethoscope is not a good.

You realize that some people make a very good living writing bizarre stuff like that. They’re called trade lawyers.

Note that even after deciding that a movie is actually a good (yeah!), the Panel was not finished on this issue. Here is my favorite bit of legal gibberish:

In sum, we have determined that we can address the US claim in respect of films for theatrical release, and that the expression “films for theatrical release” describes goods. As we explain in more detail below, the fact that “films for theatrical release”, as that expression is used in the US panel request, are goods does not dispose of China’s argument that the relevant provisions of the Film Regulation should be assessed under the GATS rather than under the Accession Protocol. Therefore, we now proceed to consider China’s argument that its trading rights commitments are inapplicable to the relevant provisions of the Film Regulation.

Any guesses on the meaning here? Well, even though the Panel decided that a movie is a product, they still need to figure out whether the legal issue should be decided based on the agreement China signed with the WTO when it joined (lots o promises were made then) or whether the General Agreement on Trade in Services (GATS) should apply.

I don’t know about you, but this is exhausting. I’m going to get a beer, then work on the Panel’s conclusions.