57608 Federal Register / Vol. 72, No. 195 / Wednesday, October 10, 2007 / Notices 

OFFICE OF THE UNITED STATES 

TRADE REPRESENTATIVE 

[Docket No. WTO/DS–362] 

WTO Dispute Settlement Proceeding 

Regarding China—Measures Affecting 

the Protection and Enforcement of 

Intellectual Property Rights 

AGENCY: Office of the United States 

Trade Representative. 

ACTION: Notice; request for comments. 

SUMMARY: The Office of the United 

States Trade Representative (USTR) is 

providing notice that in accordance 

with the Marrakesh Agreement 

Establishing the World Trade 

Organization (‘‘WTO Agreement’’), at 

the request of the United States the 

WTO Dispute Settlement Body has 

established a dispute settlement panel 

to review the U.S. claims concerning 

certain measures pertaining to the 

protection and enforcement of 

intellectual property rights in China. 

The panel request may be found at 

http://www.wto.org contained in a 

document designated as WT/DS362/7. 

USTR invites written comments from 

the public concerning the issues raised 

in this dispute. 

DATES: Although USTR will accept any 

comments received during the course of 

the dispute, comments should be 

submitted on or before November 16, 

2007, to be assured of timely 

consideration by USTR. 

ADDRESSES: Comments should be 

submitted (i) Electronically, to 

FR0707@ustr.eop.gov, with ‘‘China IPR 

Protection and Enforcement (DS362)’’ in 

the subject line, or (ii) by fax, to Sandy 

McKinzy at (202) 395–3640, with a 

confirmation copy sent electronically to 

the electronic mail address above, in 

accordance with the requirements for 

submission set out below. 

FOR FURTHER INFORMATION CONTACT: 

Steven F. Fabry, Associate General 

Counsel, Office of the United States 

Trade Representative, 600 17th Street, 

NW., Washington, DC, (202) 395–3150. 

SUPPLEMENTARY INFORMATION: Pursuant 

to section 127(b) of the Uruguay Round 

Agreements Act (URAA) (19 U.S.C. 

3537(b)(1)), USTR is providing notice 

that at the request of the United States 

the WTO Dispute Settlement Body on 

September 25, 2007, established a 

dispute settlement panel pursuant to the 

WTO Understanding on Rules and 

Procedures Governing the Settlement of 

Disputes (‘‘DSU’’). Such panel, which 

would hold its meetings in Geneva, 

Switzerland, would be expected to issue 

a report on its findings and 

recommendations within approximately 

nine months after it is established. 

Major Issues Raised by the United 

States 

The first matter on which the United 

States has requested the establishment 

of a WTO dispute settlement panel 

concerns the thresholds that must be 

met in order for certain acts of 

trademark counterfeiting and copyright 

piracy to be subject to criminal 

procedures and penalties. China has 

established these thresholds through the 

following measures, as well as any 

amendments and related or 

implementing measures: the Criminal 

Law of the People’s Republic of China, 

in particular Articles 213, 214, 215, 217, 

218, and 220; and two interpretations by 

the Supreme People’s Court and the 

Supreme People’s Procuratorate on 

several issues of concrete application of 

law in handling criminal cases of 

infringing intellectual property (one 

adopted on November 2, 2004, and the 

other adopted on April 4, 2007). It 

appears that certain acts of trademark 

counterfeiting and copyright piracy 

occurring on a commercial scale in 

China are not subject to criminal 

procedures and penalties in China. 

China’s measures appear to be 

inconsistent with China’s obligations 

under Articles 41.1 and 61 of the 

Agreement on Trade-Related Aspects of 

Intellectual Property Rights (‘‘TRIPS 

Agreement’’). 

The second matter on which the 

United States has requested the 

establishment of a WTO dispute 

settlement panel concerns goods that 

infringe intellectual property rights that 

are confiscated by Chinese customs 

authorities, in particular the disposal of 

such goods following removal of their 

infringing features. In this regard, the 

measures at issue include the following, 

as well as any amendments and related 

or implementing measures: the 

Regulations of the People’s Republic of 

China for Customs Protection of 

Intellectual Property Rights, in 

particular Chapter 4 thereof, the 

Implementing Measures of Customs of 

the People’s Republic of China for the 

Regulations of the People’s Republic of 

China on Customs Protection of 

Intellectual Property Rights, in 

particular Chapter 5 thereof, and the 

General Administration of Customs 

Announcement No. 16 (April 2, 2007). 

It appears that, because of these 

measures, the customs authorities 

appear to be required to give priority to 

options for disposal of goods that 

infringe intellectual property rights that 

would allow such goods to enter the 

channels of commerce (for instance, 

through auctioning the goods after 

removing their infringing features). The 

requirement that infringing goods be 

released into the channels of commerce 

under the circumstances set forth in the 

measures at issue appears to be 

inconsistent with China’s obligations 

under Article 59 of the TRIPS 

Agreement. 

The third matter on which the United 

States has requested the establishment 

of a WTO dispute settlement panel 

concerns China’s denial of the 

protection of its Copyright Law to 

creative works of authorship (and, to the 

extent Article 4 of the Copyright Law 

applies to them, sound recordings and 

performances) that have not been 

authorized for, or are otherwise 

prohibited from, publication or 

distribution within China. For example, 

it appears that works that are required 

to undergo censorship review (or other 

forms of pre-publication or predistribution review) before entering the 

Chinese market are not protected by 

copyright before the review is complete 

and publication and distribution within 

China has been authorized. In this 

regard, the measures at issue include the 

following, as well as any amendments 

and related or implementing measures: 

• The Copyright Law, in particular Article 

4; 

• the Criminal Law, the Regulations on the 

Administration of Publishing Industry, the 

Regulations on the Administration of 

Broadcasting, the Regulations on the 

Administration of Audiovisual Products, the 

Regulations on the Administration of Films, 

and the Regulations on the Administration of 

Telecommunication; 

• the Regulations on Administration of the 

Films Industry 

• the Administrative Regulations on 

Audiovisual Products; 

• the Administrative Regulation on 

Publishing; 

• the Administrative Regulations on 

Electronic Publications; 

• the Measures for the Administration of 

Import of Audio and Video Products; 

• the Procedures for Examination and 

Approval for Publishing Finished Electronic 

Publication Items Licensed by a Foreign 

Copyright Owner; 

• the Procedures for Examination and 

Approval of Importation of Finished 

Electronic Publication Items by Electronic 

Publication Importation Entities; 

• the Procedures for Recording of Imported 

Publications; 

• the Interim Regulations on Internet 

Culture Administration; and 

• the Several Opinions on the 

Development and Regulation of Network 

Music. 

It appears that, because of the 

Copyright Law, authors of works whose 

publication or distribution has not been 

authorized or is otherwise prohibited 


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Federal Register / Vol. 72, No. 195 / Wednesday, October 10, 2007 / Notices 57609 

appear not to enjoy the minimum 

standards of protection specially 

granted by the Berne Convention for the 

Protection of Literary and Artistic Works 

(1971) (the ‘‘Berne Convention’’) in 

respect of those works (and may never 

enjoy such protection if the work is not 

authorized, or is not authorized for 

distribution or publication in the form 

as submitted for review). In addition, 

the rights of authors of works whose 

publication or distribution is required to 

undergo pre-publication or predistribution review appear to be subject 

to the formality of successful conclusion 

of such review. The foregoing appears to 

be inconsistent with China’s obligations 

under Articles 9.1, 41.1 and 61 of the 

TRIPS Agreement. Furthermore, to the 

extent that the Copyright Law also 

denies the protection of certain rights to 

performers and producers of sound 

recordings during the period of any prepublication or pre-distribution 

prohibition, the Copyright Law appears 

to be inconsistent with China’s 

obligations under Articles 14, 41.1 and 

61 of the TRIPS Agreement. 

In addition, it appears that the 

measures at issue provide different predistribution and pre-authorization 

review processes for Chinese nationals’

works, performances (or their fixations) 

and sound recordings than for foreign 

nationals’ works, performances (or their 

fixations) and sound recordings. To the 

extent that these different processes, 

taken together with Article 4 of the 

Copyright Law, result in earlier or 

otherwise more favorable protection or 

enforcement of copyright or related 

rights for Chinese authors’ works, 

Chinese performers’ performances (or 

their fixations) and Chinese producers’

sound recordings than for foreign 

authors’ works, foreign performers’

performances (or their fixations) and 

foreign producers’ sound recordings, the 

measures at issue appear to be 

inconsistent with China’s obligations 

under TRIPS Agreement Articles 3.1, 

9.1, 41.1 and 61. 

Public Comment: Requirements for 

Submissions 

Interested persons are invited to 

submit written comments concerning 

the issues raised in the dispute. 

Comments should be submitted (i) 

Electronically, to FR0707@ustr.eop.gov, 

with ‘‘China IPR Protection and 

Enforcement (DS362)’’ in the subject 

line, or (ii) by fax, to Sandy McKinzy at 

(202) 395–3640, with a confirmation 

copy sent electronically to the electronic 

mail address above. 

USTR encourages the submission of 

documents in Adobe PDF format as 

attachments to an electronic mail. 

Interested persons who make 

submissions by electronic mail should 

not provide separate cover letters; 

information that might appear in a cover 

letter should be included in the 

submission itself. Similarly, to the 

extent possible, any attachments to the 

submission should be included in the 

same file as the submission itself, and 

not as separate files. 

Comments must be in English. A 

person requesting that information 

contained in a comment submitted by 

that person be treated as confidential 

business information must certify that 

such information is business 

confidential and would not customarily 

be released to the public by the 

commenter. Confidential business 

information must be clearly designated 

as such and ‘‘BUSINESS 

CONFIDENTIAL’’ must be marked at the 

top and bottom of the cover page and 

each succeeding page. Persons who 

submit confidential business 

information are encouraged also to 

provide a non-confidential summary of 

the information. 

Information or advice contained in a 

comment submitted, other than business 

confidential information, may be 

determined by USTR to be confidential 

in accordance with section 135(g)(2) of 

the Trade Act of 1974 (19 U.S.C. 

2155(g)(2)). If the submitter believes that 

information or advice may qualify as 

such, the submitter—

(1) Must clearly so designate the 

information or advice; 

(2) Must clearly mark the material as 

‘‘SUBMITTED IN CONFIDENCE’’ at the 

top and bottom of the cover page and 

each succeeding page; and 

(3) Is encouraged to provide a nonconfidential summary of the 

information or advice. 

Pursuant to section 127(e) of the 

URAA (19 U.S.C. 3537(e)), USTR will 

maintain a file on this dispute 

settlement proceeding, accessible to the 

public, in the USTR Reading Room, 

which is located at 1724 F Street, NW., 

Washington, DC 20508. The public file 

will include non-confidential comments 

received by USTR from the public with 

respect to the dispute; if a dispute 

settlement panel is convened or in the 

event of an appeal from such a panel, 

the U.S. submissions; the submissions, 

or non-confidential summaries of 

submissions, received from other 

participants in the dispute; the report of 

the panel; and, if applicable, the report 

of the Appellate Body. The USTR 

Reading Room is open to the public, by 

appointment only, from 10 a.m. to noon 

and 1 p.m. to 4 p.m., Monday through 

Friday. An appointment to review the 

public file (Docket WTO/DS–362, China 

IPR Protection and Enforcement 

Dispute) may be made by calling the 

USTR Reading Room at (202) 395–6186. 

Daniel Brinza, 

Assistant United States Trade Representative 

for Monitoring and Enforcement. 

[FR Doc. 07–5000 Filed 10–9–07; 8:45 am] 

BILLING CODE 3190–W8–P 

SECURITIES AND EXCHANGE 

COMMISSION 

Proposed Collection; Comment 

Request 

Upon Written Request, Copies Available 

From: Securities and Exchange 

Commission, Office of Investor 

Education and Advocacy, 

Washington, DC 20549–0213. 

Extension: 

Rule 204–3, SEC File No. 270–42, OMB 

Control No. 3235–0047. 

Notice is hereby given that pursuant 

to the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) the Securities 

and Exchange Commission 

(‘‘Commission’’) is soliciting comments 

on the collection of information 

summarized below. The Commission 

plans to submit this existing collection 

of information to the Office of 

Management and Budget for extension 

and approval. 

The title for the collection of 

information is ‘‘Rule 204–3 (17 CFR 

275.204–3) under the Investment 

Advisers Act of 1940’’ (15 U.S.C. 80b). 

Rule 204–3, the ‘‘brochure rule,’’

requires an investment adviser to 

deliver their brochure to their new 

clients or prospective clients before or at 

the start of the advisory relationship. 

The brochure assists the client in 

determining whether to retain, or 

continue employing, the adviser. Rule 

204–3 also requires that an investment 

adviser deliver, or offer in writing to 

deliver upon written request, the 

brochure to their existing clients 

annually in order to provide them with 

current information about the adviser. 

Under rule 204–3, the investment 

adviser must furnish the required 

information to clients and prospective 

clients by providing either a copy of 

Part II of Form ADV, the investment 

adviser registration form, or a written 

document containing at least the 

information required by Part II of Form 

ADV. This collection of information is 

found at 17 CFR 275.204–3 and is 

mandatory. 

The respondents to this information 

collection are investment advisers 

registered with the Commission. Our 

latest data indicate that there were 


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