The 2012 Special 301 Report Continues to do the Bidding of the Content Industry

The “Special 301 Report” is an annual report compiled by the Office of the United States Trade Representative (USTR), supposedly identifying countries that do not provide adequate and effective protection to the intellectual property rights of US persons.

In practice, Special 301 has turned into an arm-twisting exercise forcing countries to pass laws and adopt practices favored by large copyright and patent holders and often not in the public interest.

The office of the USTR published its 2012 Special 301 Report today. We are still analyzing the report, but here are our first impressions:

  1. Vague generalities: As in years past the Special 301 Report fails to give specific reasons for why a country is placed on a watch list. Instead, it provides general descriptions such as failure to “implement WIPO Internet Treaties” or failure to “strengthen border enforcement”. Without more, these phrases are open to wide variations in interpretation and a country could remain on the report forever without ever satisfying the USTR or the rights holders it represents.  In fact, reference to rights holder comments continues to be the way one can understand the true import of the Special 301 reports and this years report continues that trend.
  2. Forcing legislation in other countries: The Report continues to force other countries to adopt particular legislation. For example, the Report urges several countries, including Canada and Israel to adopt DRM schemes, presumably similar to the US DMCA (we cannot be sure because, as I said before, the Report is vague.) Such a scheme, would favor large, generally U.S. rights owners, and hurt the ability of the people in those countries to access information and culture.
  3. No basis in evidence: The Report seems to place a heavy reliance on assertions of copyright and patent holders. For example, the Report cites Indonesia for ineffective enforcement efforts and “rampant piracy and counterfeiting.” Similarly, it cites Thailand for significant concerns about “piracy of cable and satellite signals.” While some of these concerns may be justified, their reliability remains tainted by the fact that these are self-interested claims made by rights holders. Placing blind reliance on them is like a court making judgment after hearing only one side. And yet that is what the 2012 Special 301 Report does.

These deficiencies have been part of the Special 301 process for a long time and PK and many other public interest groups have pointed them out repeatedly. Yet our submissions seem to fall on deaf years.

For instance, our comments this year focused on Canada and explained how Canadian laws provide more than adequate and effective protection to US intellectual property rights. In fact, in many ways, Canadian laws provide greater rights to copyright owners than US laws.

The Report does not address any of our arguments. Worse still, it does not mention reasons why Canada’s copyright regime is deficient. Instead, it gets down to business right away, pointing out that the USTR is watching how Canada’s pending legislation will evolve and whether it will meet USTR’s expectations.

This year’s report throws serious doubt on the value of our participation in this process. On the one hand, it seems to give room for argument that the USTR has heard from all stakeholders. On the other, the Report ignores everything we have had to say. As James Love, from KEI pointed out at this year’s public hearing, part of the problem is that having to compile a comprehensive report, listing IP practices in countries all over the world once every year is practically, impossible, particularly for an understaffed agency like the USTR. Yet, the exercise is undertaking in a mechanical fashion every year. Worse, it is used to pressure countries to pass draconian laws. How is this process to be improved? More importantly, what effect does this process have on the accused countries and why do they even care? These are questions we will grapple with in future.

The Latest