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I'm still learning about Special 301. Last week, I had the opportunity to sit in on the 2011 Special 301 Committee Public Hearing for Interested Parties, during which Rashmi Rangnath, PK staff attorney and director of our Global Knowledge Initiative, testified. Today, she will submit her post-hearing comments. Here are my impressions:
Every year, the US Trade Representative (USTR) prepares a Special 301 Report that cites specific countries for insufficient enforcement of intellectual property and inadequate IP laws. Typically, countries are put on a watch list or priority watch list as a result of industry reports of rampant piracy. The hearing on March 2, 2011, featured witness testimony from Thailand, the Czech Republic, Mexico, and Italy (did you know that in Italy, large-scale piracy is treated the same as terrorism and Mafia involvement?) as well as testimony from industry and civil society. I was impressed by the range of government agencies represented in the committee—the Departments of Commerce, Justice, Treasury, Labor, Homeland Security, Agriculture, and many more were seated at a long table at the front of the room.
I have three main take-aways from the hearing:
1. My main observation: the “burden of proof,” if you will, was on the civil society groups.
2. The common theme of criticism: there is a lack of clarity and explanations in the report.
3. My favorite moment: Criticism of the report and comments about staying within their statutory mandate were not met well.
The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.
Testimony from groups like Global Health Organization, the Forum on Democracy and Trade, Oxfam, Public Knowledge, and others were met with aggressive push back and questioning on how criticism on the Special 301 process was at all relevant to the committee’s ability to render judgments on individual countries.
But that’s exactly the problem. The report is written so vaguely, and industry complaints taken at such face value, that specific criticism of the report is near impossible. I was surprised to learn that the report doesn’t include a list of criteria used to evaluate countries or even clear explanations on why specific countries are placed on the watch list, nor does it say which industry-submitted comments were the basis for citation.
The best moment of the hearing, to me, was during Sean Flynn’s testimony on behalf of the Forum on Democracy and Trade. Flynn argued (for the second year in a row, I might add) that citing countries like Finland, France, Italy, and Japan for “unfair [pharmaceutical] reimbursement policies” was incredibly vague, hypocritical (because the US has similar reimbursement policies), and—most importantly—outside the statutory mandate of the Special 301 process. McCoy retorted that no such citation was in the 2010 report [pdf].
Flynn’s response? “It’s right here on page 14…”
Rashmi’s post-hearing comments remind the USTR of the relevance of public interest groups’ perspective in framing the submissions by industry, providing examples of countries that are presumably cited because of limitations and exceptions in their laws. So what have I learned? Just because industry doesn’t like something shouldn’t be sufficient cause to land a country on the priority watch list, but it is.