PK’s Special 301 Comments Reiterate Importance of Balance in Copyright Law

February 11, 2013

This past Friday, we filed comments in the Special 301
process, the Office of the United States Trade Representative’s (USTR) annual
exercise of naming countries that do not adequately protect intellectual
property interests of Americans. We believe that this process has turned into
an exercise of pressuring countries to pass copyright laws that provide maximum
benefits to rights holders, preventing many social, economic, and political
benefits that flow from sensible limits on copyright owner rights.

The negative fallout of this process affects not only
citizens in foreign countries, but also US technology companies. Foreign
citizens are hurt because Special 301 pressures their countries to avoid adopting
limits to copyrights that would permit things such as access to educational
materials, distance education, and digital libraries. US technology companies
are hurt because often they rely on copyright limitations and exceptions to
market products that use copyrighted material. For instance, MP3 players rely
on exceptions that allow users to copy music. Search engines rely on copyright
exceptions in order to copy web pages to facilitate searching and indexing.
Many countries do not have these exceptions and the Special 301 process
constrains their ability to adopt them.

Things don’t have to be this way. The law allows the USTR to
adopt an interpretation of copyright that is more balanced. Doing so would not
only be fair to other countries, it would also be consistent with the US’s
national interest. Yet the USTR has chosen to adopt an interpretation of
copyright law that favors rights holders, and has done so through a process
that raises many procedural concerns. 

First, the Special 301 reports lack a strong evidence base.
Rights holders (particularly those represented by the movie industry, recording
industry, and software industry) submit hundreds of pages of comments each year
providing their numbers on the extent of piracy in various foreign countries.
They describe how the police and courts in these countries enforce (or fail to
enforce) their rights. They also outline detailed complaints against proposed
laws in these countries and even suggest redline changes to those countries’
laws. Some of these complaints object to limits on copyright that, to most
observers, would seem completely acceptable. For example, one complaint
objected to Canada’s proposed copyright law that would permit its citizens to
make back up copies of digital files without specifying a limit to the number
of copies, even though the proposed law imposed many other detailed limits on
the act of copying.

The sheer detail of these reports is amazing and I have
always wondered how the USTR analyzes them and submits its report in a matter
two months. We fear that assertions of rights holders are not challenged.
Certainly the report’s appearance suggests excessive reliance on rights holder
claims. We have suggested before that these are self-serving claims and recommended
that they be subject to independent evaluation. In this year’s comments, we
reiterate this recommendation.

Furthermore, the USTR’s reports themselves don’t properly
reveal grounds for citing countries for failing to protect US IP interests.
Thus, you will find generalized statements like “[t]he United States encourages India to take additional steps
to improve coordination with enforcement officials of certain state governments
within India” or that the USTR will review “whether [Canada] fully implements the WIPO Internet
Treaties, and whether it fully addresses the challenges of piracy over the
Internet.” But nothing in the Report indicates how the country’s regime
does not meet these generalized requirements. For that, you would have to look
at the comments submitted by rights holders.  

We have shared these concerns with the USTR in all of our
filings in the past and reiterated it in our comments on Friday. Yet it appears
that this engagement has not resulted in any change in the way the process
works. We hope this state of affairs will change in future.