US and China sign trade deal that'll help cut down on counterfeit and pirated goods

Shawn Knight

TechSpot Staff
Staff member

Article 1.14 of the trade agreement notes that both parties shall take effective action with regard to major e-commerce platforms that fail to take the measures necessary to combat the infringement of intellectual property rights.

Specifically, China has agreed to revoke the operating licenses of platforms that become repeat offenders while the US has committed to studying additional means to combat the sale of counterfeit or pirated goods.

As CNBC highlights, that last bit can’t be glossed over. Amazon, one of the biggest e-tailers in the world, has been fighting a very real battle against counterfeit goods on its platform for some time now.

Just under a year ago, the e-commerce giant announced Project Zero as a three-pronged approach to help stamp out fakes. Still, the issue persists, with some advocacy groups going as far as to suggest Amazon should be added to counterfeit vendor watchlists. Earlier this month, the Jeff Bezos-led company reportedly vowed to ramp up reporting of bogus listings on its site to law enforcement.

Masthead credit: Colorful purses by David A. Litman

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psycros

TS Evangelist
There's no question that Amazon is the #1 high-profile reseller of fakes in the west. Ebay is probably a close second. Of course China itself has never honored a single foreign patent or trademark and their participation in this deal will be nothing but lip service.
 

Evernessince

TS Evangelist
"China shall provide that e-commerce platforms may have their operating licenses revoked for repeated failures to curb the sale of counterfeit or pirated goods. "

Key word is may, no mention of it being required. In addition, this is only revoking their license to operate in China. This does not seem to impact Chinese sellers ability to sell on Amazon US (although other provisions "may" attempt to tackle that issue).

Another very interesting tidbit in article 1.29

"(a) provide for a legal presumption that, in the absence of proof to the contrary, the person whose name is indicated as the author, producer, performer, or publisher of the work, performance, or phonogram in the usual manner is the designated right holder in such work, performance, or phonogram and that the copyright or related right subsists in such subject matter;

(b) when the presumption in subparagraph ( a) holds, waive requirements to present copyright or related rights transfer agreements or other documentation in order to establish ownership, licensing, or infringement of copyright or related rights, in the absence of rebuttal evidence presented by the accused infringer; and(c) provide that the accused infringer has the burden of production of evidence or burden of proof, as appropriate, to demonstrate that its use of a work protected by copyright or related rights is authorized, including in a case where the accused infringer claims to have obtained permission to use the work, such as through a license, from the right holder. "

Two key facts that you can draw from this:

1) "Purported" copyright owners are not required to provide evidence in any civil, administrative, or criminal proceeding involving copyright.

2) The burden of proof is on the accused as specifically stated in section b.

In addition:

"The United States affirms that existing U.S. measures afford treatment equivalent to that provided for in this Article. "

It seems to me this kind of draconian standard is being applied to both the US and China and seems to highly favor big copyright owners (like usual).

Also, article 1.5

"The Parties shall provide that the burden of production of evidence or burden of proof, as appropriate, shifts to the accused party in a civil judicial proceeding for trade secret misappropriation where the holder of a trade secret has produced prima facie evidence, including circumstantial evidence, of a reasonable indication of trade secret misappropriation by the accused party. "

For those unaware, prima facie means "accepted as correct until proven otherwise". Yeah....

There is also a provision for suspending portions of the agreement if one party does not feel that the other party is not meeting their obligations. In other words, it's a great way to piss the other side off arbitrarily and very Trump like. Of course, trade agreements are built off Trust and enforcement is always voluntarily. To me, something like this says either side does not really trust the other.

In addition, China is only agreeing to make purchases for 2 years. Essentially, that's the period the trade war has gone on already. Not to mention, tariffs will stay in place, so elevated prices are here to stay.

In the end this is a win for big companies, a big maybe for farmers if China voluntarily commits long term, and a loss for the average American as the tariffs are staying in place. China has only committed to buying 12.5 billion worth of farm products in the first year, less then half the bailout amount farmers were given. I especially don't like that the US has committed to selling China rare earth metals used for advanced electronics and military weapons. We don't have a lot of it to begin with, selling it could put the US defense industry in a pinch and thus national defense in general.
 
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Mr Majestyk

TS Maniac
There's no question that Amazon is the #1 high-profile reseller of fakes in the west. Ebay is probably a close second. Of course China itself has never honored a single foreign patent or trademark and their participation in this deal will be nothing but lip service.
In Quangzhou province they have whole towns dedicated to counterfeiting, hundreds of thousands employed with full blessing of Chinese government. The Chinese even make counterfeit munitions that end up in US military weapons. Canon was saying they could clone some of their camera gear so well they had trouble telling it from the real deal. This announcement is a load of BS, China made statements about upholding international patents in 2002, it was complete crap.
 
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Uncle Al

TS Evangelist
Saying it is one thing, enforcement is quite another and China's past doesn't encourage me into believing they will keep their word this time any better than they have in the past ......
 

Ravalo

TS Addict
There's no question that Amazon is the #1 high-profile reseller of fakes in the west. Ebay is probably a close second. Of course China itself has never honored a single foreign patent or trademark and their participation in this deal will be nothing but lip service.
*looks at wish*
 

mbrowne5061

TS Evangelist
"Earlier this month, the Jeff Bezos-led company reportedly vowed to ramp up reporting of bogus listings on its site to law enforcement."

How do you ramp up from what should be a 100% report rate? Its not Amazon's job to decide what is and is not worth pursuing when it comes to counterfeiting operations - its the job of law enforcement agencies.
 

Evernessince

TS Evangelist
"Earlier this month, the Jeff Bezos-led company reportedly vowed to ramp up reporting of bogus listings on its site to law enforcement."

How do you ramp up from what should be a 100% report rate? Its not Amazon's job to decide what is and is not worth pursuing when it comes to counterfeiting operations - its the job of law enforcement agencies.
The problem is counterfeiting in China is so common (and considered culturally acceptable) that I don't think the issue will disappear anytime soon. Instead of hoping China suddenly shifts cultures, it would be much more effective if the US government hit Amazon and eBay with fines per Chinese counterfeit product sold.