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

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.

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