[At-Large] [APAC-Discuss] Draft Trans Pacific Partnership Agreement on IP

Salanieta T. Tamanikaiwaimaro salanieta.tamanikaiwaimaro at gmail.com
Sun Sep 9 10:54:24 UTC 2012

This is why China will never be invited to the TPP Party:

Economic, Energy, Agricultural and Trade Issues: Fostering a Rules-Based
System in the U.S.-China Economic
08/29/2012 03:23 PM EDT

Fostering a Rules-Based System in the U.S.-China Economic Relationship

Jose W. Fernandez
Assistant Secretary, Bureau of Economic and Business Affairs
American Chamber of Commerce
Hong Kong
August 3, 2012


*I. Introduction and Roadmap*

Thank you very much. It’s great to be here today.

A long time ago, I wrote a travel article about Hong Kong in a travel
magazine that you will be happy to hear is now defunct. Two things stood
out to me then, the juxtaposition of Western and Asian cultures in Hong
Kong, and the energy that makes my hometown of New York City feel like a
country town. While a lot has changed dramatically here since my first
visit, these two things have remained constant throughout the decades. Hong
Kong is truly Asia’s World City and sits as a symbol of prosperity in a
region rich in trade, innovation, and ideas.

As Secretary of State Hillary Clinton said here in Hong Kong almost exactly
a year ago, “increasingly, economic progress depends on strong diplomatic
ties and diplomatic progress depends on strong economic ties.” This is why
Hong Kong is so vital. *Its history and geography make it inevitably a
bridge between East and West, and its diplomatic and economic importance to
the United States cannot be overstated.* It is inspiring how companies here
from all around the globe compete in a transparent system, subject to good
governance, rule of law, freedom of the press, an independent judiciary,
and a vibrant civil society.

This open, competitive system has served the U.S.-Hong Kong economic
relationship well. There are more than 1,300 U.S.-affiliated companies in
Hong Kong, and AmCham Hong Kong is one of the most active chambers in Asia.
We are grateful for all the energetic work of the AmCham members here. We
very much value your leadership, expertise, and contributions to global
economic growth, as well as the role you play in bringing American
businesses to Hong Kong and Asia. In no small part because of your efforts,
today Hong Kong is the United States’ 10th largest export market for goods.
It is also our 7th largest market for agricultural products. In fact, in
the past two years, U.S. exports to Hong Kong grew the fastest—at 73
percent—among all of our top 20 export markets.

*II. U.S.-Hong Kong Economic Relationship and the Pivot to Asia*

Secretary Clinton’s visit here last year and my visit now are part of a
broader and deeper economic relationship between the United States and the
countries of the Asia-Pacific; a relationship that is key as we in the
United States are pursuing our own economic recovery and growth. And as we
look to promote recovery and growth at home in the United States, we also
realize that we depend on our economic relations abroad.

In this part of the world, our involvement is nothing new. The United
States has
long been deeply engaged in developments in the Asia-Pacific region. Our
contributions to regional security have played a role in creating the
conditions that brought more people out of poverty faster than anywhere
else in history. That engagement continues today. We know that the futures
of the United States and the Asia-Pacific are inextricably linked. And as
Secretary Clinton highlighted, we are not just a diplomatic or military
power here. We are also an economic force. In 2010 alone, our exports to
the Pacific Rim were $320 billion, supporting 850,000 American jobs.

*III. U.S.-China Economic Relationship*

Now we cannot talk about U.S. economic relations with Asia without
discussing our economic relationship with China.China’s economic
achievement in recent years is remarkable and is justifiably a source of
pride as it has lifted hundreds of millions of people out of poverty,
urbanized, and modernized. China is returning to the world stage in a big
way, with millennia of experience as a global leader behind it.

The economic relationship between the United States and China provides
significant benefits to both our nations, just as it does to Hong Kong.
China has benefitted greatly from its integration into the global,
rules-based trading system that the United States championed following the
end of World War II. As the world’s second largest and fastest-growing
major economy, China also offers huge opportunities for U.S. businesses,
workers, farmers, and ranchers.

But as we work toward a system that both of our countries can compete in
and prosper from, as our futures are ever-more linked, we need to address
challenges to our common goals of prosperity and economic growth. We need
to agree on the basic rules that apply to all countries in the
international commercial arena. For our part, we are committed to expanding
opportunities for U.S. companies to export to and do business in China. And
this means that our policies pursue four basic objectives that I’d like to
talk to you about today. These are (1) a strong commitment to protection
and enforcement of intellectual property rights, (2) adherence to the full
array of norms that govern international trade and finance, (3) the
creation of a level playing field in which all companies can compete under
the same rules, and (4) expanding mutual investment. I would like to touch
on each of these four tenets individually before closing with the tools we
have at our disposal to encourage progress.

(1) Intellectual Property Rights

Improving the protection and enforcement of intellectual property rights—or
IPR—in China remains a top priority for the United States. In fact, I’d say
no issue is more fundamental to maintaining a mutually beneficial trade
relationship between both our countries, not just the U.S. China’s own
innovators and creative industries seek, and would benefit greatly from,
stronger IPR protection and enforcement. In addition, a strong intellectual
property regime is critical to ensuring that safe products reach both U.S.
and Chinese citizens. And of course, strong IPR protection standards and
enforcement mechanisms, similar to those we have adopted under the World
Trade Organization, are vital to bilateral trade and investment.

But leaving aside its importance to international trade generally, IPR
observance is also critical to the U.S. economy and our recovery. And
that’s why we are so adamant that this is an issue that needs to be
addressed. According to a 2010 report on trade, Chinese intellectual
property rights infringement and indigenous innovation policies largely
block U.S. companies from China’s enormous government procurement
opportunities, which I will discuss shortly. In 2009, these policies cost
the U.S. economy nearly $50 billion in sales, royalties, or license fees.
The report also found that if Chinaraised its intellectual property rights
standards to those of the United States, it could translate into well over
900,000 new jobs in U.S. intellectual property intensive firms. As you can
see, the stakes for the United States in maintaining a rule-based system
for IPR are extremely high.

But instead we face an issue that colors our economic relationship and that
we need to overcome. Corporate spying or trade secret theft has led to a
huge number of losses for U.S. companies operating in China in recent
years. Companies doing business in biotechnology, telecommunications, and
nanotechnology have had billions of dollars worth of technology stolen from
servers and funneled to Chinese companies that use that technology without
legal rights. One U.S. company was the victim of Chinese hackers who stole
technology that cost $1 billion and 20 years to develop. Another company
lost 40 percent of its value in a single day and 84 percent within five
months, after theft of its technology came to light. This pattern does not
just harm the individual companies; it discourages other companies from
doing business in China. Ultimately, it hinders China’s ability to attract
valuable technological investment.

A related concern for us is the high rates of online piracy, business
software theft, and market access barriers that hinder consumers’ purchases
of legitimate goods. For example, a recent report from the Business
Software Alliance showed that the software piracy rate in China was 77%, at
a cost to producers of nearly $9 billion, while in Hong Kong the rate was
43%, which was only slightly above the global average of 42%. We are also
very concerned with the continued trend of policies indicating China’s
willingness to encourage domestic or “indigenous” innovation at the expense
of foreign innovation and technologies. Let’s be clear: piracy is a
euphemism for theft, plain and simple.

Nevertheless, we also welcome positive steps China has taken in recent
years. At last year’s Strategic and Economic Dialogue, for example,
China agreed
to strengthen its efforts to protect IPR in several areas. One of these was
by intensifying efforts to ensure that Chinese government agencies at all
levels use legitimate software. We are also very pleased to join China and
45 other countries in the signing of the World Intellectual Property
Organization’s Audiovisual Performers Treaty, also known as the Beijing
Treaty. This treaty will expand protections to both U.S. and Chinese

(2) Norms and Government Procurement

A second basic objective of our policy is to insist that China adhere to
the full array of norms and standards that govern international trade and
finance. This includes fulfilling its commitment to join the WTO Government
Procurement Agreement, or GPA. Government procurement represents one of the
most rapidly expanding areas of opportunity for traders of goods and
services. All around the world, governments are announcing programs to
spend tens or even hundreds of billions of dollars on new infrastructure
investments. In fact, in many countries the government typically is the
biggest single buyer of goods and services, with the value of these
government purchases worth, on average, 10 to 15 percent of a country's
GDP. So government tenders are big business throughout the world, including
the United States.

China committed to join the GPA during its accession to the WTO in 2001. It
formally initiated negotiations in 2007 and submitted its most recent
market access offer in November 2011. In this May’s U.S.-China Strategic
and Economic Dialogue, China committed to submit a new and comprehensive
revised offer that responds to the requests of all he GPA parties, before
the end of the year.

The United States and other GPA parties are focused on ensuring that China’s
offer is in line with coverage offered by other parties to this agreement.
Opening one of the largest and fastest growing procurement markets would
provide substantial opportunities for international suppliers, including
those from Hong Kong, which is also a GPA party. In short, 11 years after
China committed to joining the GPA, the time has come to fulfill that

(3) Insistence on Competitive Neutrality and a Level Playing Field

Third, we continue to press China’s state-owned enterprises to act more
like commercial enterprises. If China wants to have state-owned
enterprises, that is purely China’s own choice. But if those enterprises
receive benefits that give them an artificial competitive advantage, then
we have concerns, because we believe that the rules of economic engagement
should apply equally to all companies, private or state-owned. No company
should be given special benefits, such as subsidized export credit,
discounted factory inputs like cheaper energy or land, below-market loan
rates, or exemption from antitrust laws, unless all companies have access
to those benefits. These benefits and preferential treatment distort the
playing field for other companies.

And why do we care if the playing field is distorted? Because we want
companies to win based on better performance, business practices, and
innovation, not based on government support. History shows that when
companies based on external assistance and not on their own merits, they
often have unearned competitive advantages and ultimately this leads to
inefficient, bloated, and uncompetitive firms. As Secretary Clinton stated
recently, U.S. companies today have the best, most productive workers in
the world. They have the best technology, the most talented innovators. And
many of them are sitting on large cash reserves. They play in the most
competitive markets and win. Yet they are still disadvantaged relative to
certain foreign state-owned enterprises, because they have to pay taxes,
dividends, rent, get loans at market rates, and still remain competitive in
global markets.

Our strategy to meet the state capitalism challenge involves a deployment
of a robust set of policy tools that will level the playing field and open
markets for fair competition. We are working to implement free trade
agreements, bilateral investment treaties, and WTO accession commitments.
These policies will counter measures abroad that distort markets and limit
market access and competition.

(4) Investment

Finally, mutual investment in both of our countries will allow us to
balance the economic interests of what are—and will be for the foreseeable
future—the two largest economies in the world. We want U.S. companies to
expand their businesses to China and we want Chinese investment in the
United States. We made good progress during the U.S.-China Investment Forum
in Washington, DC in April, and we hope to continue that trend.

The United States consistently ranks at the top of most major indicators
for its attractive business and investment climate. The FDI flow into the
United States in 2010 was more than double the flow into any other country
at nearly $230 billion. This number was nearly 50 percent greater than FDI
flow in 2009. In order to continue this promising trend, President Obama
launched SelectUSA in January 2011. SelectUSA coordinates government
activities in order to complement the activities of our 50 states, which
are the primary drivers of economic development, to attract investment to
the United States. If you are interested in investing in the United States,
we and SelectUSA can direct your queries to the different states’ economic
development agencies, making sure you get connected to the right partners
for your investment selection process.

We see a great opportunity for more investment from China and Hong Kong,
which is why the U.S. Government designated both places as top markets for
SelectUSA outreach. For example, from 2005 to 2010, China was America’s
fastest-growing source of FDI at over 50 percent average growth per year.
Meanwhile Hong Kong’s $4.3 billion of FDI in the United States is only
slightly less than Mainland China’s $6 billion in FDI. One positive example
of Mainland Chineseinvestment was Dalian Wangda Group’s decision in May
this year to purchase America’s second-largest movie theater company – AMC
theaters – for $2.6 billion. We want to continue this trend, and in that
vein, I want to highlight the important Chinese Overseas Investment Summit
in Hong Kong on August 22nd and 23rd. In particular, on the afternoon of
August 23rd, AmCham and U.S. service providers will have dedicated sessions
to discuss the nuts and bolts of investing in the United States.

Since I have been in Hong Kong I have heard much about the final point I
would like to speak on. It is the Committee on Foreign Investment in the
United States, or CFIUS. I often hear the misconception that CFIUS is some
all-powerful organization determined to impede any foreign investment. This
is obviously not true based on the numbers I just cited. CFIUS is simply an
interagency committee of the U.S. government – of which I am a member –
authorized to review mergers, acquisitions, and takeovers from foreign
companies that could affect the national security of the United States. It
does not cover new or greenfield investments in the United States. And by
law CFIUS can only look at national security, not economic or other
policies, and it must apply the same rules and clearance standards to all
investors, regardless of country. Let me repeat, CFIUS only considers
national security and does not consider economic or other policies, and it
must apply the same rules and clearance standards to all investors,
regardless of country. CFIUS regularly clears investments from both private
and state-owned Chinese companies, often within a month. All of its rules
are public and explained in detail.

Let me give a few facts. When a potential business deal is submitted to
CFIUS the committee has 30 days to review the case, and can ask for a 45
day extension if needed. Of the thousands of foreign investments into the
United States from 2008 to 2010, only 313 deals required CFIUS review. Of
those only 16 required any form of mitigation or adjustment to be approved.
CFIUS is transparent, limited in scope, and equally applied to all foreign
investments. I wish all countries had such a focused and streamlined
foreign direct investment process.

*IV. Tools For Progress*

This is certainly not the first time I am raising these four key
issues—intellectual property rights, government procurement, a level
playing field, and mutual investment. Fortunately, we have good vehicles
for progress through steady and constructive engagement in all of these
areas. One of these is the Strategic and Economic Dialogue I alluded to
earlier. Our countries recently held the fourth Strategic and Economic
Dialogue in Beijing in early May. The U.S. remains committed to a long-term
investment in building mutual trust and understanding between China and the
United States, and we see the S&ED as an important tool to achieve results.

And we need progress because while these problems aren’t new, they can’t
continue forever. In May China made key commitments to (1) improving market
access and leveling the playing field, (2) improving intellectual property
rights enforcement and protection, (3) reducing trade secret
misappropriation, and (4) committing to treating IPR owned or developed in
the United States the same as IPR owned or developed in China. China also
agreed to intensive discussions on the implementation of its commitment
that technology transfer is to be decided by firms independently and not to
be used by the Chinese government as a pre-condition for market access. We
welcome these commitments and look forward to concrete steps in the right
direction in the near future. They will go a long way in addressing the
issue I’ve just discussed.

*V. Conclusion*

Using vehicles such as the Strategic and Economic Dialogue, we can work
through our differences to strengthen our commonalities. Neither the United
States nor China can fulfill its economic potential without the cooperation
of the other. We are global partners, and in that partnership, all of you
here in Hong Kong are indispensable players.

Thank you.

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