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Report of the Panel (Continued)
3.47 Article III:2, first sentence,
governs taxes applied directly or indirectly to products. Canada's
argument that the tax is actually on advertising services confuses
how the tax is measured (i.e., in terms of advertising
fees) with what the tax applies to (i.e., split-run editions).
There is ample additional evidence that the excise tax is a tax
applied to split-run magazines as a product:
Thus, during the time the excise
tax was being formulated and enacted, Canadian officials had
considered the tax to be a tax imposed on split-run magazines.
It is only in the context of this panel proceeding, and in the
light of US claims that the tax is inconsistent with Article III
of GATT 1994, that Canada has advanced the argument that the tax
is really a tax on advertising services and not a tax on split-run
magazines. Indeed, given the statements of Canadian Government
officials that the excise tax was designed to eliminate split-runs
from its market, Canada's argument that split-run magazines are
neither directly nor indirectly subject to the excise tax is not
credible. 3.48 Even if the tax is not applied directly to split-runs, it is at a minimum applied indirectly to them because it is based on one of the two key uses to which magazines are put - in this case, the placement of advertisements. Moreover, it is impossible to separate the advertising that goes into a magazine from the magazine itself. Advertising is a significant component of commercial magazines, typically accounting for half or more of total pages. A magazine's advertisements can significantly affect its appeal and usefulness to readers. In addition to virtually eliminating their use as advertising vehicles - thus drastically reducing the revenues available to market such magazines - the tax reduces the appeal of such magazines to Canadian readers by effectively eliminating advertisements of interest to them.
3.49 Canada argued that the excise tax does not apply "indirectly" to a good within the meaning of Article III:2. In discussions at the London session of the Preparatory Committee, it was suggested that the word "indirectly" covers a tax not on a product as such but on the processing of the product".57 The panel report in Japan - Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages58 gave an interpretation of the term "indirectly" that was consistent with this reading:
The concept of "indirectly"
in Article III:2 does not capture measures that are disciplined
under GATS. It is intended to capture taxes that apply to "inputs"
that contribute to the production of a good - raw materials, service
inputs, intermediate inputs, etc. The question of whether the
excise tax is covered by Article III:2 of GATT 1994 by reason
of the expression "indirectly" must be examined in light
of the relationship between GATS and GATT 1994.
3.50 Article III:2, to the extent
that it allows a challenge of measures relating to services that
"indirectly" impact on trade in goods, covers only measures
concerning inputs such as raw material or services inputs that
are directly involved in the production of a good. Taxes on such
production inputs are properly subject to Article III:2 because
they affect the costs and prices, and therefore the competitive
position of goods that are subject to Article III:2. It is important,
however, for the Panel to distinguish service inputs that are
directly involved in the production of a good and services that
are "end-products" in their own right. The publishers'
advertising services, although closely associated with the magazines,
are separate products. They are not involved in the production
process of the magazines. The advertising services of the publisher
are not, like labour in the production of a car, an input in the
production of a good.
3.51 In order for a measure
with respect to services to fall "indirectly" under
Article III:2 of the GATT 1994, it has to affect the competitive
situation of the importer on the market. In other words, the
provision of the service has to be ancillary to the provision
of the good in that market. The situation is reversed where the
good produced by the exporter is used to gain access to a service
market. In such an instance, the provision of the good becomes
ancillary to the provision of the service which has the effect
of transferring jurisdiction from GATT 1994 to GATS. Consequently,
the argument on Article III:2 (and Article III:4) does not hold.
Otherwise, such a restrictive interpretation could considerably
diminish the scope of GATS and could lead to absurd situations
such as those provided as examples by the United States. For
example, irrespective of a Member's right not to make commitments
with respect to foreign legal services, it would be impossible
to maintain measures that restrict access when provided in a printed
format. If allowed, the US interpretation of the expression "indirectly"
would force Canada to accord national treatment to foreign publishers
with respect to advertising services when it did not make any
commitments in that respect in GATS. Such an interpretation would
create an imbalance in carefully negotiated concessions on services
sectors made by WTO Members during the last round of Multilateral
Trade Negotiations. It would also void GATS of its effectiveness
as it concerns Canada's right not to make commitments on advertising
services.
3.52 If the United States is
successful in persuading the WTO to condemn Canada's measures
as inconsistent with GATT, the United States will be able to obtain
direct access to a market from which it is otherwise properly
precluded under international law. The measures in question are
designed to protect access to Canada's advertising services market
and they are effective in doing so. If the measures are struck
down under the guise of GATT inconsistency, the WTO will have
facilitated an unnegotiated concession on the part of Canada.
The consequences of such an effect are far reaching. If the
WTO is in any doubt about the nature of the dispute, it must simply
look at what the United States will gain if successful. The United
States will not gain greater access for its magazines. These magazines
in exactly the same form as they are distributed in the United
States already enter unimpeded. It will gain access to Canada's
advertising market and the revenues to be had in that market.
3.53 The periodical publication
industry is one which combines two commercial activities which
are economically linked, the production of periodicals and the
sale of advertising services. It cannot be denied that the autonomous
economic activity which is the sale of advertising services significantly
contributes to the financial viability of the publishing industry.
However, this has nothing to do with the designation of two separate
activities of an industry for the purposes of the application
of GATT 1994 and GATS. The fact that an integrated industry uses
some of its commercial activities and revenues so generated in
order to facilitate the marketing of some of its other activities
should not influence the characterization of the activities for
the purposes of determining which sections of the WTO apply to
them. The key element in the application of Article III:2, when
considering whether a tax applies indirectly to a good, is whether
this tax affects indirectly the global income generated by the
industry under consideration. Hence the distinction made by Canada
between a service as an input in the production of a good, which
is within the scope of Article III:2, and a service which is a
product of an independent activity such as the advertising services
of a publisher, which are within the scope of Article I:1 of GATS.
Canada also raised the further distinction which must be made
between the services that are within the scope of GATT 1994 and
GATS on the basis of the accessory or principal nature of the
service. A service, as an input in the production of a good,
is an accessory in the production of a good. However, the advertising
services of a publisher are the principal product for which a
periodical is the accessory.
3.54 A large number of services
result in the production of a good. The fact that the result
of the provision of the service is physically incorporated in
the production of a good is not in itself a key factor in the
characterization of the measure which relates to such a service.
It is because of the economic integration of the two activities
which form the periodical publication industry that advertising,
in its physical form, is incorporated into periodicals. It is
because a periodical is the accessory of the advertising service,
its vehicle, that advertising in its physical form is incorporated
into a periodical. It is not because advertising is physically
"necessary" to the material production of a periodical
as an editorial vehicle. Unlike printing services (the work of
the printers), the advertising services of the publisher have
nothing to do with the physical production of periodicals. Those
services only relate to the financial viability of the integrated
activities of the periodical publishing industry. This has nothing
to do with the protection found in Article III:2 of GATT 1994.
To extend the scope of Article III:2 and of the phrase "indirectly"
would result in en extension beyond natural and reasonable meaning
in the circumstances. The level of integration of an industry
cannot be a factor in the characterization of a measure which
relates to one of its activities for the purposes of determining
which WTO treaties applies thereto. The only factors applicable
are the nature of the measure and the scope of application of
each of the two treaties.
3.55 There are no contradictions
in the Canadian approach. Canada provided a general description
of the periodical publishing industry and pointed out the integration
of advertising and publishing activities. This explains the close
relationship of these activities as far as overall income for
the industry is concerned as well as the accessory nature of periodicals
for the advertising services of publishers. Canada's main position
is very clear. There is no doubt that the advertising services
of publishers are services that are not accessory services or
inputs in the production of periodicals. The fact that these
services are part of the integrated activities of a publisher
and that the income which results from them contributes to the
overall financial viability of the industry does not affect the
characterization of the activity for the purposes of the applicability
of Article III:2. The latter does not apply to measures relating
to the ability of a publisher to market its advertising services.
Part V.1 of the Excise Tax Act is beyond the scope of Article
III:2 of GATT 1994.
3.56 The United States
asserted that neither the plain meaning of the term "indirectly"
in Article III:2, nor the limited negotiating history concerning
it, supports a restrictive meaning of that term. Rather, the
negotiating history reveals that a tax with respect to the processing
of a product was one example, but not necessarily the only example,
of an "indirect" tax on a product. Advertisements are
a substantial feature or component of a magazine as a product,
accounting for half or more of the pages of a typical magazine
sold in Canada. It is not logical to say, as Canada does, that
a tax with respect to inputs - that is to say, things that
are consumed in making a product - is a tax directly or indirectly
on a product, but a tax that concerns a major feature or component
of that actual product is not. If anything, the latter is more
directly a tax applied to the product itself. Advertisements
affect a magazine's price, cost, and competitive position as much
as any input consumed in the production of a product. The carrying
of advertisements is, moreover, a major use to which magazines
are put. A tax with respect to a substantial use of a product
can be viewed as a tax, directly or indirectly, applied to the
product.
(ii) Conformity of Part
V.I with Article III of GATT 1994
3.57 Canada observed that
there is an artificial quality to any attempt to assess how Article
III applies to a tax that has never been applied to a foreign
product. It has been assumed that the tax does not apply to imported
products in view of the maintenance of Tariff Code 9958. Article
III:2 requires a comparison of an imported and a domestic product,
a comparison that has to remain purely hypothetical in this case.
Subject to this observation, Canada provides an alternative argument
to be considered in the event the Panel is of the view that Part
V.I is a taxation measure that applies to magazines as "goods"
and that an examination of the application of Article III of GATT
1994 has to be conducted.
3.58 The United States
remarked that, by Canada's own admission, the excise tax applies
to imported (as well as domestically produced) magazines. To
the extent that the tax had not actually been levied on
imported split-runs, it is because those imports had been completely
banned by Canada. It is entirely possible that even if there
were no import ban the excise tax would still not be levied because
the tax is set at such a high level that it would likely discourage
producers from marketing imported split-runs in the first place.
It is well-settled in GATT that the level of actual imports is
not the basis for assessing whether a violation of GATT Article
III exists. The 1949 Working Party on Brazilian Internal Taxes
stated that the obligations of Article III "were equally
applicable whether imports from other contracting parties were
substantial, small or non-existent".59 This is because
the purpose of Article III is not to protect expectations on trade
volumes, but rather "expectations on the competitive relationship
between imported and domestic products".60
3.59 Thus, the plain fact that
the excise tax is mandatory legislation that applies by its terms
to imported magazines brings it within the purview of Article
III. The principle that actual imports are not required is especially
appropriate in this case because Canada has banned the relevant
imports to which the tax would otherwise apply. A WTO Member
cannot use a GATT-inconsistent import prohibition to shield its
discriminatory domestic regulations from scrutiny. In the absence
of the import prohibition, the excise tax would immediately affect
imported split-run magazines. By making imported split-runs prohibitively
expensive to sell in Canada, the tax would accomplish what the
import ban now does: the absence of imported split-runs in the
Canadian market. The effect of this scheme is that dozens of
US split-runs would be sold in Canada but for barriers Canada
has erected to their sale. This case is not based on Canada's
treatment of US publishers' split-run magazines produced in
Canada. Such magazines are not imported products within the
scope of GATT Article III. (a) Article III:2, first sentence
Like product issue
3.60 The United States
argued that the Canadian excise tax created an artificial distinction
between otherwise entirely like products - split run and non-split
run magazine editions - based on the extent to which the same
or a similar version of the product was sold abroad. The excise
tax defines a split-run magazine entirely in terms of its relationship
to another magazine sold outside Canada. It is, therefore, impossible
to determine whether a magazine is a split-run based simply upon
an examination of its physical form, its editorial content, or
its advertising content. The fact that a similar edition of a
magazine is sold in a country other than Canada does not differentiate
the magazine from another magazine in terms of physical characteristics,
end-uses, content, advertising, or any other attribute. In fact,
the defining characteristic of a split-run magazine under the
excise tax - the existence of another magazine sold outside Canada
- is an extraneous factor having nothing to do with the character
of the split-run itself.
3.61 Canada argued that
periodicals with editorial content developed for the Canadian
market and split-runs substantially reproducing foreign editorial
content are not "like products" within the meaning of
Article III:2 and are distinguishable on the basis of their content,
the essential characteristic of any magazine. Magazines are distinct
from ordinary articles of trade. Magazines are intended, by their
very nature, for intellectual consumption as opposed to physical
use (like a bicycle) or physical consumption (like food). It
follows that the intellectual content of a cultural good such
as a magazine must be considered its prime characteristic. Consequently,
the "like product" analysis of whether imported split-run
magazines share the same characteristics as domestic magazines
with editorial content developed for the Canadian market must
be approached in terms of intellectual content as opposed to the
traditional approach of examining material or physical characteristics.
The periodical industry is keenly aware of the importance of
editorial content. It is editorial content and its ability to
attract readers that determine the ability of a periodical to
attract advertising revenues to securing its financial viability.
3.62 Periodicals with editorial
content developed for the Canadian market and split-run periodicals
envisaged by the legislation are distinct products on the basis
of their editorial content. The definition of "split-run
edition" reflects this distinction. Editorial material developed
for the Canadian market reflects a Canadian perspective and contains
specific information of interest to Canadians. The content is
qualitatively different from editorial material copied from foreign
publications.
3.63 What has been said of the
essential properties of magazines is equally applicable to their
end-use. The end-use of a magazine is not simply reading; it
is the transmission and acquisition of specific information.
The information in, for example, a sports magazine, cannot be
considered essentially the same as that in a philosophical journal.
Any attempt to characterize the "end-use" of products
so broadly that they all end up in the same category would deprive
this consideration of any real meaning and would run afoul of
the principle that the expression "like" in this context
is to be narrowly construed.61
3.64 The United States
argued that a distinction of the type Canada had drawn in its
excise tax should be inherently suspect under Article III because
it is founded on distinctions other than differences between the
products being sold in the importing country. In US - Standards
for Gasoline, the panel rejected an argument that the US
"Gasoline Rule" did not provide less favourable treatment
to imported products as compared to like domestic products because
it treated similarly situated parties similarly noting that
and observing that, under the
US argument in that case
3.65 The same concerns about
"highly subjective and variable treatment according to extraneous
factors" that the panel identified also apply in this case.
The "extraneous factors" on which application of Canada's
excise tax depends are the existence or non-existence of a product
sold in a country other than Canada, and the extent of that product's
similarities to, and differences from, the product sold in Canada.
The United States described examples that it considered showed
how Canada's distinction between split-runs and other magazines
produced odd and arbitrary results based on sales of products
outside Canada.
3.66 Canada argued that
the point is not whether originality could be perceived as such,
but whether there was a difference between the two products at
issue - the split-run replicating a foreign magazine, on the one
hand, and the domestic magazine with original content, on the
other. This had nothing to do with "subjective and variable
treatment according to extraneous factors" as identified
in the panel on US - Standards for Gasoline. It made no
difference in terms of product characteristics whether the gasoline
was handled by refiners, blenders, or producers. Gasoline was
gasoline, but any careful examination would show that content
differences between split-runs and original Canadian magazines
were characteristics of the products themselves. A recurring
theme of the United States argument is that the Canadian legislation
is not based upon objective product differences; that it is based
on a distinction unrelated to product characteristics. This is
said to be the result of a definition that depends entirely on
the existence of a foreign companion edition with sales outside
Canada. In the words of the United States, this is an extraneous
factor that has nothing to do with the character of the split
run itself. On the contrary, it has everything to do with the
character of the split-run itself. The legislation does not focus
on the existence of a socalled companion edition as a factor
unrelated to the characteristics of a split-run marketed in Canada.
It focuses on the fact that the split-run marketed in Canada
is to a substantial degree no more than a reproduction of a foreign
edition, with the content characteristics invariably associated
with such material. It is not the existence of a foreign companion
edition, or sales of that edition outside Canada, that counts.
It is the reproduction in the Canadian split-run of content that
originated in that foreign edition. Contrary to the United States
argument, this is a product characteristic of the split-run magazine.
The replication of foreign content is not only an attribute of
the split-run - a defining attribute, in fact - it is readily
discernible from an examination of the product itself.
3.67 Canada further considered
that the United States' approach to like products is necessarily
over-broad because it ignores the only basis on which one magazine
can be distinguished from another - the content. If magazines
are treated as ordinary articles of manufacture, defined only
by the fact that they are physically made up of printed paper
and staples, then it would obviously have to follow that all magazines
are exactly the same. The United States submission even implies
when it refers to Canada's tariff item 49.02, that newspapers,
journals and periodicals are like goods. This leads to the second
basic principle Canada referred to in this connection: that "like
product" determinations under Article III.2 are to be made
on a case-by-case basis. The reason for proceeding case-by-case
is obvious: to avoid over-generalization and a mechanical or
automatic transfer of criteria that are suitable in one context
to another context where they no longer properly apply. A case-by-case
approach is one that takes account of the particular circumstances.
It cannot be denied that cultural products are different, that
they have their own distinguishing characteristics. By treating
them as if they were ordinary items of merchandise trade, the
United States has ignored the entire rationale of the case-by-case
approach.
3.68 The chief and for all practical
purposes the only distinguishing characteristic of a magazine
is its content. Content plays a role in the case of cultural products
that is analogous to physical properties in the case of ordinary
items of trade. Content is what the reader is looking for - the
message and not the medium. The end-use of a magazine is the
transmission of specific information. A magazine has a utilitarian
function - it may be to keep up on current events; to acquire
information about specific topics like computers or investments;
in some cases, to provide entertainment - but in every case, the
function and value of the magazine to the reader is inseparably
linked to its specific content or subject matter. The United
States' emphasis on physical properties leads inevitably to a
lumping together of all magazines as indistinguishable commodities,
contrary to the principle of narrow construction and the case-by-case
approach. The approach that Canada advocates, giving content
the decisive role, does not lead to the opposite extreme. Magazines
can easily be classified by type, either broadly or narrowly,
on the basis of content. Exactly where the lines are to be drawn
can be a matter of judgment, but no more so than in the case of
any other like product determination.
3.69 The legislation uses the
concept of original material as the defining element - material
that is not, to quote the statute, "the same or materially
the same as editorial material" in editions that circulate
primarily in foreign markets. This criterion of original versus
replicated material might seem abstract at first, but in its practical
effect it refers to a dividing line that is very easily recognized.
Original material means content developed for and aimed at the
Canadian market - this means Canadian content in terms of subject
matter as opposed to authorship or production. The idea that
Canadian content is the same as foreign content is simply not
tenable. The events, topics and people covered will be Canadian.
They may not be exclusively Canadian, but the balance will be
recognizably and even dramatically different than in a replicated
foreign publication, where articles on Canada are close to non-existent.
Foreign magazines are almost devoid of content dealing with Canada,
and what little there is quite logically fails to reflect a Canadian
perspective. Even where the topics covered are the same, the
perspective will be different. Some of these qualities like "perspective"
are admittedly somewhat intangible; but where cultural products
are at issue, these assessments cannot be avoided. And they fall
well within the legitimate range of the kind of "discretionary
judgment" the Appellate Body has identified as inherent in
like products determinations for the purposes of Article III -
discretionary but not arbitrary. It is the prevailing characteristics
of each category that we should look at in determining whether
or not publications created for Canada are the same as publications
replicated from foreign editions. There may be individual articles
that might conceivably have appeared in either type of magazine.
Some issues might be more different or less different than others.
But the prevailing pattern is what counts. Canadian content
and foreign content are significantly different. Local publications
deal with local topics. People are preoccupied with their own
affairs and communities. Periodicals are the mirror image of
those communities. The content of a periodical created for one
community will necessarily differ from what is created for another
community.
3.70 Further, the only actual
magazines the United States has chosen to exhibit in this case
are Pulp & Paper,63 which is not a split-run and
has no relevance to the Excise Tax Act, Paris Match and
The Economist. Paris Match is an imported non-split-run
and The Economist is an imported split-run that is exempt
from the tax as a North American edition without advertising specifically
directed at the Canadian market. None of these magazines
is relevant to the comparison between domestic and imported products
that has to be made under Article III:2, first sentence. But
the evidence is readily available, because there are grand-fathered
split-runs in Canada that can be compared with other domestic
Canadian magazines. This evidence has been filed by Canada, although
Canada does not bear the burden of proof. The evidence consists
of Time US, Time Canada and Maclean's - what
the United States would call a foreign companion magazine, a split-run
that would be taxable without the grandfathering provision, and
an original domestic magazine. And the issue, in a nutshell,
is whether the last two - Time Canada and Maclean's - are
"like" products, having regard to the narrow construction
and the case-by-case approach mandated by the Japan - Alcoholic
Beverage Appellate ruling.
3.71 Canada's evidence in the
form of actual magazines provides typical examples of a split-run
in the form of Time Canada, the parent edition in the form
of Time US, and a domestic magazine in the form of Maclean's.
The proper basis of comparison is of course Maclean's
and Time Canada. Almost every article in Maclean's
deals with Canada. This is true of the editorial, the letters,
the business news, the entertainment coverage, the arts, crime,
people, the law, much of the news - everything in fact but the
lead international stories covering about 8 out of 88 pages.
Next, a comparative look at Time Canada shows that it has
practically no reference to Canada or Canadian subject.
There are two out of 21 letters from Canadian sources. There
is a travel advisory on Montreal, but it turns out to be about
an exhibit dedicated to an American landscape architect. The
difference between Time Canada and Maclean's is
striking. It would escape no reader and no consumer. This is
about as typical an example as one could find. These are mainstream,
mass circulation magazines. Canada suggests that there is a significant,
objective, discernible difference between a split-run and a magazine
created with original content for the Canadian market.
3.72 The United States
contested Canada's argument that imported split-runs were not
like or directly competitive or substitutable with non-split runs
because non-split-runs contain original content that is from a
Canadian perspective. An examination of the structure of the
tax showed this to be false. Moreover, even if this assertion
were true it would not form a legitimate basis for distinguishing
between otherwise like products. First, by its terms the tax
applied or did not apply, to particular magazines irrespective
of their editorial "perspective". For example, a magazine
published solely for the Canadian market, or that contained no
advertising specifically directed at Canadians, automatically
avoided the tax regardless of how "foreign" its contents
might be. However, the very same magazine became subject to the
tax if it had a somewhat different foreign companion edition.
Second, the editorial content need not be "original"
at all. Rather, a magazine could avoid the tax, but still be
identical to what is sold abroad, as long as the publisher did
not advertise to Canadians. This suggested that the real basis
for the distinction is simply whether the magazine might compete
for advertising revenues with purely domestically produced Canadian
magazines. That, indeed, is a purpose that Canada did not hide.
Finally, even if one could somehow credit Canada's argument that
it is seeking through the excise tax to ensure "original
content" in magazines sold in Canada this purpose would be
equally illegitimate. If GATT permitted governments to require
that imported goods be designed exclusively or primarily for their
markets, they could easily insulate their markets from the comparative
economic advantages of other WTO Members. Such a result would
undermine the foundations of international trade.
3.73 The recent Appellate Body
report in Japan - Alcoholic Beverages shares the focus
of the US - Standards for Gasoline panel report on objective
product differences in judging product likeness. There
the Appellate Body observed:
This approach was followed in
almost all adopted panel reports after Border Tax Adjustments".64
The Appellate Body found that
the term "like product" in Article III:2, first sentence
must be "construed narrowly" in light of the existence
of the second sentence of Article III:2 which covered "directly
competitive or substitutable" products, and that distinguishing
between "like products" and "directly competitive
or substitutable" products "is a discretionary decision
that must be made [by panels] in considering the various characteristics
of the products in individual cases".65 3.74 Thus the Appellate Body in Japan - Alcoholic Beverages, like the US - Standards for Gasoline decision, endorsed a case-by-case approach that focused on differences in products, rather than on distinctions based on extraneous factors such as the production method. The illustrative list of like-product factors cited by the Appellate Body - end-uses, the product's properties, and so forth
3.75 Canada considered
that the US arguments on the like product issue failed to present
any positive evidence that an imported split-run had enough in
common with original-content Canadian magazines to allow them
to be considered like products. The absence of such evidence
is fatal because the United States had the burden of proof. Canada
was not suggesting that a magazine had only one attribute. Nor
did it back away from the proposition that the assessment had
to take into account all the relevant circumstances. But the
circumstances had to be weighed and balanced according to their
importance, and editorial content was the most important distinguishing
feature and was the chief and for all practical purposes the only
distinguishing characteristic of a magazine. A magazine is nothing
without its content which was what defined the end-use and the
value of a magazine to its readers. Treating content as "one
attribute among many" as the United States would say, would
tend to sweep all or at least very broad classes of magazines
into the same category. This would disregard the narrow characterization
of like products required by the Appellate Body in Japan -
Alcoholic Beverages.
3.76 As the complainant, the
United States bears the burden of proving that Canada acted inconsistently
with its obligations under Article III:2, first sentence. This
is a principle of long standing in GATT jurisprudence. To date
the United States has made no effort to discharge this burden.
Instead, it has relied upon general allegations and assertions
such as the following: "there is no identifiable difference
between split-run magazines, on the one hand, and magazines without
a companion edition, on the other hand, in terms of their physical
characteristics, appearance, uses, tariff classifications, or
even editorial content". Such statements do not constitute
the empirical evidence required to both substantiate the claim
made by the United States that all magazines are the same or that
magazines based on local content are the same as magazines replicating
foreign content; and to fulfil the burden of proof borne by the
United States.
3.77 While Canada also recognized
the definition of what constitutes a "like product"
by the Working Party on Border Tax Adjustments, it considered
that the "like products" test requires a much more sophisticated
analysis than that suggested by the United States. The Working
Party had concluded that the determination of what constitutes
"like products" must be made on a case-by-case basis
in order to allow for the consideration of the specific circumstances
of each case. In that context the Working Party suggested some
criteria: "... the product's end-uses in a given market;
consumers' tastes and habits, which change from country to country;
the product's properties, nature and quality".66 This
line of thinking evolved into an established GATT practice and
was recently reaffirmed by the panel in US - Standards for
Gasoline.
3.78 The United States
considered that with Canada's argument - that the US like product
analysis is incomplete because it relies solely on the physical
characteristics of magazines, and ignores their editorial content
- Canada appears to concede that there is no other basis to consider
split-run magazines and other magazines to be "unlike"
based on the specific criteria established by the Appellate Body
in Japan - Alcoholic Beverages. By focusing solely on
"editorial content", Canada ignores the Appellate Body's
instruction that the analysis of "like product" must
take into account "the various characteristics of
products in individual cases".67 Editorial content is
only one attribute of a magazine, among many. The type, texture,
colour, thickness, and even the perfume, of the paper can be important
factors to market appeal. The dimensions of the magazine, the
manner in which its pages are bound, the typesetting, and the
appearance of the ink, can also be significant. The type, appearance,
and frequency of advertisements may be a factor in a consumer's
purchasing decision as well. Readers may purchase a magazine
in part for the information its advertisements contain about where
and how to purchase products or services locally. All of these
attributes - including editorial content - combine to form an
overall package that a consumer may or may not be attracted
to. For the Canadian and US magazine industries, editorial content
generally represents substantially less than 20 per cent of the
cost of producing a consumer magazine. 3.79 Even if one were to examine editorial content in isolation, Canada's argument that magazines can be differentiated solely according to the percentage of "original" versus "non-original" editorial content they contain is untenable. There simply is no readily identifiable difference in actual editorial content between what the excise tax deems to be "original" and "non-original" content. That is because the distinction drawn by the excise tax is not based on the specific contents of magazines distributed in Canada but simply on whether those contents are used in magazines distributed abroad. A magazine reader in Canada cannot discern whether a magazine is "original" or not based on an examination of the magazine's contents, and thus could not be expected to consider "non-original" magazines to be any different from "original" magazines. For purposes of consumer use - as well as use by advertisers
3.80 In fact, Canada's "original
content" requirement is not really meant to ensure that magazines
sold in Canada have any particular type of content. Rather, it
is meant to ensure that one type of production method - regional
or split-runs - cannot be employed for magazines sold in the Canadian
market. A distinction drawn to favour one type of production
method has obvious protectionist implications and is not one that
GATT should countenance for distinguishing between otherwise-like
products.
3.81 Further, Canada's argument
that split-runs usually differ from magazines sold only in Canada
with respect to the perspective and orientation of their editorial
content is legally irrelevant. A panel must assess the distinction
that a measure actually draws, not a distinction a measure
might have drawn but does not. In this case, to the extent the
excise tax concerns content, it differentiates between magazines
whose content is contained in a product sold in another country
and magazines whose content is sold only in Canada. Thus, the
excise tax simply does not differentiate between content based
on its Canadian focus or perspective. Application of the excise
tax does not turn merely on a magazine's "originality".
A magazine distributed both inside and outside Canada becomes
subject to the tax based solely on the inclusion of a single advertisement
that is not identical in both editions. The very same magazine
whose several editions do not differ in advertising is
not taxed. Canada has advanced no basis for distinguishing between
magazines based on the type of advertisements they contain.
3.82 For example, a science magazine
escapes from the tax even if it contains absolutely no articles
about Canadian scientists or Canadian scientific research so long
as it is not sold outside Canada. The very same magazine would
be subject to the tax if it is sold both in Canada and abroad
and contained an advertisement that differed between the version
sold in Canada and the version sold abroad. Yet the same magazine
would not be subject to the tax if it is sold both inside and
outside Canada but did not contain such an advertisement. Thus,
the excise tax does not, in fact, distinguish between magazines
based on their editorial content, let alone based on the orientation
of the content. Rather, it applies based on factors related to
whether a magazine was produced for more than one market, and
advertising content. Article III:2 does not permit governments
to distinguish between otherwise like products based on such business
and trade factors.
3.83 With regard to the Canadian
assertion that the US analysis of like product with respect to
the excise tax is unacceptably general and would necessarily lead
to the conclusion that all magazines are the same like
product, regardless of content, the Appellate Body made clear
in Japan - Alcoholic Beverages that product likeness for
purposes of Article III must be addressed on a case-by-case basis
and in the light of all relevant circumstances. Thus, no sweeping
once-and-for-all product likeness determinations are appropriate
for magazines or other products. The distinction between "original"
and "non-original" content was not based on objective
content differences, or any differences at all, based on a comparison
of products sold in Canada. Whether or not distinctions may ever
properly be drawn between magazines based on their editorial content
is not an issue that is before this Panel. The excise tax distinguishes
between products based on whether a similar product is sold abroad,
not on objective content differences between products being sold
in Canada.
3.84 Canada argues that because
magazines contain intellectual or cultural content, they should
receive unique treatment under GATT. Many products, as diverse
as works of art, designer clothing, phonograph records and cinematographic
films contain intellectual or cultural content. Like magazines,
these products were in widespread use prior to the adoption of
GATT 1947. But of these products, only cinematographic films
were accorded special treatment in GATT 1947. Had the drafters
of GATT 1947 sought to treat other intellectual or cultural products
differently from products in general, they would have done so.
3.85 Canada argued that
the United States insists that it is impossible to determine whether
a magazine is a split-run simply upon an examination of its physical
form, its editorial content, or its advertising. This simply
misses the point. A casual reader might not in fact know whether
a magazine is a split-run or simply an imported foreign magazine.
There might be practically no difference between the two. Time
US and Time Canada are very close. But that basis
of comparison is irrelevant, because the comparison is not between
imported magazines and imported magazines. The comparison is
between imported split-run with the domestic magazine -Time
Canada and MacLean's. And here the reader would have
no difficulty in seeing that the two are very different products,
offering completely different benefits to the prospective reader.
The point, in sum, is not whether a split-run can be identified
as such by the consumer. It is whether it can be identified as
a significantly different product when compared to a domestic
magazine that is not a split-run.
3.86 The United States makes
the same point when it says a magazine reader in Canada cannot
discern whether a magazine is original or not, based on an examination
of the magazine's contents, and thus could not be expected to
consider nonoriginal magazines to be any different from
original magazines. This is based on the same misperception.
The point is not whether originality can be perceived as such,
but whether there is a difference between the two products at
issue - the split-run replicating a foreign magazine, on the one
hand, and the domestic magazine with original content, on the
other. And nothing the United States has said casts any doubt
on the proposition that difference would be obvious to any reader.
This has nothing to do with subjective and variable treatment
according to extraneous factors, as identified in the panel report
on US - Standards for Gasoline. That situation obviously
had nothing to do with objective product differences. It makes
no difference in terms of product characteristics whether the
gasoline is handled by refiners, blenders, or producers, or what
data these various companies are likely to hold. Gasoline is
gasoline, but any careful examination will show that content differences
between split-runs and original Canadian magazines are characteristics
of the products themselves.
3.87 At some points the United
States refers to split-runs as a production method. In fact it
is not a production method, it is a specific type of magazine.
The United States says that a distinction drawn to favour one
production method over another has protectionist implications
that GATT should not countenance. This reflects a passage of
the United States - Measures Affecting Alcoholic and Malt Beverages
("US - Malt Beverages") decision that was specifically
overruled in Japan - Alcoholic Beverages.68 In any
event, it mischaracterizes the legislation, which distinguishes
not on the basis of production method but of product content.
The United States argument on like products is based on a highly
abstract reading of the Canadian legislation taken out of its
realworld context. It is based in fact on a refusal to
take account of the effect of the distinction between original
and reproduced content on which the legislation is based. But
it is only on the basis of the effect of the distinction that
one can determine whether in fact the legislation has the effect
of taxing imported products in excess of like domestic products.
3.88 Canada noted the United
States' contention that Canadian content or Canadian perspective
are legally irrelevant, and that a panel must assess the distinction
a measure actually draws, not a distinction it might have drawn
but does not. In fact, the point is to assess what the legislation
actually does - not simply what it says but what it does. It
is obvious that the basis of the legislation - content reproduced
from foreign sources - has concrete effects. These are effects
that any reader can see - from the stories, the people, the subjects
and - indeed - the perspective. They determine the character
and the subject matter of the publication. The suggestion that
these are not objective, visible product differences makes no
sense. When the United States says that the nature of the content
is irrelevant because that is not the distinction the legislation
actually draws, they are asking the Panel simply to close its
eyes to the actual operation and effect of the legislation in
a realworld context. The implication is that one should
look at the form, not the substance; that the assessment should
be in the abstract and that the concrete effect should be ignored.
None of this makes sense in the context of Article III:2, first
sentence, which requires a finding of excess taxation in fact.
One of the reasons why Canadian magazines do not sell well in
the US market is precisely that they have a different content,
content designed for Canadians. The American public is not attracted
to this content. If American consumers can recognize the difference
between an American and a Canadian magazine, surely Canadians
can recognize it just as easily. TO CONTINUE WITH CANADA - CERTAIN MEASURES CONCERNING PERIODICALS
54 Task Force Report at vi, 64 . 55 Commons Debates at 14790, Sept. 25, 1995 (emphasis added). 56 House of Commons Passes Bill C-103, News Release, Department of Canadian Heritage, Nov. 3, 1995 at 2 (emphasis added). 57 EPCT/A/PV/9 at 19; and EPCT/W/181 at 3. 58 Panel Report on Japan - Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages, adopted on 10 November 1987, BISD 34S/83 at 118, para. 5.8. 59 The 1949 Working Party on Brazilian Internal Taxes, adopted on 31 June 1949, BISD II/181, 185, para. 16 . 60 Panel Report on United States - Taxes on Petroleum and Certain Imported Substances, adopted on 17 June 1987, BISD 34S/136, 158, para. 5.1.9. 61 Appellate Body Report on Japan - Taxes on Alcoholic Beverages, adopted 11 July 1996, WT/DS8/R, WT/DS10/R and WT/DS11/R . 62 United States - Standards for Reformulated and Conventional Gasoline, op. cit., paras. 6.11-6.12 (emphasis added). The United States added that in United States - Taxes on Automobiles, DS31/R (29 Sept. 1994, unadopted), the panel (para. 5.55) found that "Article III:4 does not permit treatment of an imported product less favourable than that accorded to a like domestic product, based on factors not directly relating to the product as such. The Panel found therefore that, to the extent that treatment under the CAFE measure was based on factors relating to the control or ownership of producers/importers, it could not in accordance with Article III:4 be applied in a manner that also accorded less favourable treatment to products of foreign origin" (emphasis added). 63 Referred to in paragraph 3.91. 64 Appellate Body Report on Japan - Taxes on Alcoholic Beverages, op. cit.,at 20. 65 Ibid., at 21 (emphasis added). 66 Border Tax Adjustments (Report of the Working Party adopted on 2 December 1970), BISD 18S/97. 67 Appellate Body Report on Japan - Taxes on Alcoholic Beverages, op. cit., at 21 (emphasis added). 68 Panel Report on United States - Measures Affecting Alcoholic and Malt Beverages, adopted on 19 June 1992, BISD 39S/274, para. 5.25. |
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