The United States Trade Representative (USTR) is asking for public comment in its Special 301 inquiry for 2012. Special 301 is an annual report that the USTR compiles listing countries that allegedly fail to provide adequate and effective protection for intellectual property rights of US persons. As we have said before, this report has turned into an exercise that arm-twists countries into instituting laws and policies that serve the interests of big content even where these policies hurt the free expression and due process rights of citizens.

This week trade negotiators from 8 countries (including the United States) are meeting in LA behind closed doors to discuss the intellectual property chapter of a new international trade agreement.

The recent outpouring of opposition to SOPA/PIPA was an indication of citizens' outrage, not only at the actual bills, but also at the fact that Congress could be so blind to the public interest in order to please the content industry. While SOPA/PIPA are unprecedented incursions into the Internet architecture, the mindset that caused these bills to go as far as they did, has been at play for a very long time: ratcheting up protections for IP rights holders with little regard for preserving balance in IP laws or due process rights of citizens. 

ACTA (the Anti Counterfeiting Trade Agreement) is making a lot of news these days, with lots of people comparing it unfavorably to PIPA and SOPA. A lot of that coverage has been focused on Europe and particularly Poland, where the Polish government's signing of the agreement has sparked considerable protest.

So is this a big deal, and if so, why is domestic coverage of it so muted in comparison to SOPA and PIPA?

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. Over the years, these reports have turned into an annual exercise of naming countries whose domestic IP policies do not meet the unrealistic expectations of IP rights holders.

Public Knowledge’s Position

Typically, the Report places blind reliance on rights holder assertions; it ignores the need for balanced copyright; it cites countries based on vague criteria; and it pressures countries to sign international agreements that don’t currently bind them and that these countries possibly consider detrimental to their national interest.

Public Knowledge calls for transparency and accountability in the process, as well as a more balanced perspective on copyright in the Report. 

US copyright law is a set of relationships, a system to reward creators on their work while simultaneously allowing others to comment and criticize their work. This principle, that users like libraries, educators, artists, documentarians, and journalists, also have rights in the copyright system, is recognized in other countries as well.

Public Knowledge's Position

There is a danger in international forums for disproportionate escalation of rights because there is a often lack of transparency, the negotiations are obscure, and the debates are easily disregarded as "far away". When seeking policy changes that would otherwise be unpopular domestically, big industry players often turn to international forums. Furthermore, once harmful provisions are codified in international rules, they are harder to change domestically.

The Office of the United States Trade Representative (USTR) issued the 2011 Special 301 Report yesterday afternoon. For those unfamiliar with the Special 301 Reports, these are reports that the Trade Act requires the USTR to publish every year identifying countries that fail to provide “adequate and effective protection” to intellectual property (IP) rights of U.S. persons. Over the years, these reports have turned into an annual exercise of naming countries whose domestic IP policies do not meet the unrealistic expectations of IP rights holders. I have written before about our concerns with these reports. These concerns remain true for this year’s report as well.

The U.S. Trade Representative today issued its latest Special 301 report, setting out evaluations of the intellectual-property policies and laws of other countries.

The report is here.

The following statement is attributed to Rashmi Rangnath, Public Knowledge staff attorney and director of PK's Global Knowledge Initiative.

"We are disappointed with the latest Section 301 report.  The U.S. Trade Representative declined generally to adopt our recommendations that the policy prescriptions be more specific and that countries not be required through the Special 301 process to implement agreements and treaties with which they disagree, such as World Intellectual Property Organization (WIPO) copyright treaty and the Anti-Counterfeiting Trade Agreement (ACTA).

Yesterday, a draft of the U.S. proposal for an intellectual property (IP) chapter of the transpacific partnership agreement (TPPA) leaked on the Internet. The U.S. proposal calls for IP protections and enforcement obligations more extensive than those called for in the Anti-Counterfeiting Trade Agreement (ACTA) or the most recent U.S. Free Trade Agreement (FTA) – the Korea U.S. (KORUS) FTA.

Here are the highlights of the U.S. proposal: