Why did we have a Special 301 hearing?

Yesterday, the Office of the United States Trade Representative (USTR), along with several other government agencies, held a hearing on its Special 301 process. This hearing was part of the process by which the USTR compiles a list of countries that do not provide “adequate and effective protection” to the intellectual property rights of U.S. persons or deny market access to them. I testified on behalf of Public Knowledge. A copy of my testimony is available here.

In my testimony I focused on why Canada should not be cited as a country that does not adequately or effectively protect intellectual property rights. This focus on Canada was prompted by two things: First, the USTR and other agencies that make up the interagency Special 301 Committee had told us that they really cannot use comments that do not focus on specific countries. While we don’t agree with that approach, we wanted to be responsive to the suggestions of these agencies. We hope this responsiveness will encourage the agencies to pay attention to our comments at least this year. Second, it is ludicrous to cite Canada in the Special 301 reports. Canadian laws and practices are very similar to those of the U.S. and creative industries are flourishing in Canada. Yet Canada has been included in the Special 301 reports for the past several years at the behest of the content industries, probably to influence the course of legal reforms currently being debated in Canada.

Yesterday’s hearing was the third in as many years. Although the Special 301 process is a couple of decades old, the USTR has been conducting public hearings only for the past three years. And for now, that is a positive development. A public hearing is supposed to shine light on various issues the USTR considers as it compiles its list. It is also supposed to give the public a window into how those in power think of intellectual property issues and whether they are willing to consider your interests and the interests of those like you in other countries. However, this purpose did not seem to animate the USTR and the other government agencies at yesterday’s hearing.

While the public interest representatives, including PK, Knowledge Ecology International, American University's Program on Information Justice and Intellectual Property and others expressed disappointment at how the special 301 process was unfair and did not consider the human cost of stronger protections and more stringent enforcement of intellectual property rights, the officials on the hearing committee, seemed unmoved. They posed almost no substantive questions or try to engage in a conversation with us. This stoic behavior was marked by scripted lines such as “thank you for your participation” and “we will consider your testimony.” This reaction was in contrast to last year’s public hearing where there was more of a discussion between members of the US government and those who testified. Their reaction left me wondering why we had the hearing at all and whether any of our comments would receive proper consideration.

We will find out when the Special 301 Report comes out probably at the end of April. Meanwhile, thanks to everyone who signed our petition asking the USTR not to industries bidding. We will submit the petition to the record of the proceeding.

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