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The U.S. Trade Representative (USTR) should use transparent and objective criteria in its findings that countries have violated intellectual-property trade laws, and should not be as quick to put countries on special watch lists that could potentially lead to a trade sanctions process, Public Knowledge (PK) and the Electronic Frontier Foundation (EFF) said today.
In comments to the trade agency on the “Special 301” process, which determines whether countries will be put on a special “watch list,” the groups criticized USTR for using “vague and non-transparent” criteria for listing countries, for accepting without evaluation statistics from industry and for unfairly putting countries on the “watch list” as not enforcing intellectual property law. The groups also said the USTR process should recognize in its international evaluations the same balance that applies to U.S. copyright laws. A copy of the filing is here.
Of particular concern to the groups is the practice by USTR of singling out countries for special treatment because those countries haven’t ratified international intellectual-property treaties. In doing so, USTR exceeded its authority and ignored local IP enforcement, the groups said.
The filing noted that U.S. trade “does not require the USTR to place on these watch lists countries that choose not to accede to and implement certain intellectual property agreements such as the 1996 WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) (collectively ’the WIPO Internet treaties’).”
Many countries have “legitimate and lawful reasons” for not signing treaties, the groups said, noting that the U.S. declined for years to ratify a notable copyright treaty. “Similarly, other countries’ governments have cast doubt on the usefulness of the WIPO Internet treaties as a means to secure copyright protection while also maintaining a vibrant system of limitations and exceptions,” PK and EFF said. They also said the USTR should not threaten countries with sanctions for enacting copyright limitations and exceptions, such as for fair use.
USTR also should take into account domestic conditions in determining whether IP laws are being enforced properly, saying, “It is inappropriate for the Special 301 Review process to be used to pressure countries to implement the particular enforcement measures and specific models of international treaty implementations sought by U.S. intellectual property rights holders,” while limiting that country’s other options for enforcement.
The groups also criticized USTR for accepting without analysis claims of intellectual-property violations from industry organizations like the International Intellectual Property Alliance (IIPA) and the pharmaceutical industry. It’s only after consulting those group’s complaints that the public can figure out on what basis USTR acted, PK and EFF said, recommending: “The USTR should arrange for independent external verification of country data and statistics submitted by the IIPA before making factual determinations based upon it.”
PK and EFF made six recommendations to USTR to remedy the problems cited in the comments.