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

May 1, 2012 , , ,

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

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.