The Office of the United States Trade Representative (USTR) has long treated the content industry and major pharmaceutical companies as its principal constituents, using its bully pulpit to export overbroad intellectual property (IP) enforcement practices around the world. This is evidenced in the negotiations over trade agreements like ACTA and TPP, but we can also see it in the process of developing the yearly Special 301 reports—a set of tiered “watch lists” of countries that have been singled out for having “bad” IP policies.

Since 1989, the USTR has used these reports to hint at the threat of trade repercussions for those countries who do not choose to adopt copyright, trademark, and patent laws that mirror, or in some cases exceed, US law. Although a listing in the 301 report doesn’t lead directly to the imposition of trade sanctions, several countries—such as Spain—have unfortunately felt compelled to enact dangerous IP laws to pacify the USTR. The USTR has never published its exact criteria for determining who will be included in the Special 301 reports, but we do know that the reports are far from objective and almost always follow the recommendations of big pharma companies and the International Intellectual Property Alliance.

For the past couple years, the USTR has opened permitted interested parties to submit comments. But to little purpose, other than allowing the USTR to pretend it has “consulted” with all stakeholders. While EFF, along with other civil society groups, have submitted comments in the past [pdf], the USTR’s reports have never acknowledged any of our serious concerns with this process. As has been the case with other trade-related venues, civil society continues to be shut out and ignored.

The framing of this year’s request for public comments makes it all too clear that the USTR isn’t interested in alternative views. As Mike Masnick of Techdirt points out, the USTR call for comments pre-supposes a myopic concern for IP rightsholders. The Federal Register Notice reads:

USTR requests that interested persons identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection.

As reflected here and in all prior Special 301 Reports, there is little room to raise questions about how such policies adversely affect the public. Unchecked, over-expansive IP policies have led to countless unintended consequences in the US and around the world.  Those consequences should be integral to the USTR’s consideration of any country’s IP policy.

US foreign policy on IP should be fair and transparent, be based on empirical evidence, and pay close attention to the needs of users as well as large IP groups.  As a government body that has come to have such influence over international IP policy, the USTR should seek to maximize creativity and innovation for the whole of society, not merely to protect the commercial interests of a few powerful industries.


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