From the same agency that brought you the Trans-Pacific Partnership (TPP)—the United States Trade Representative (USTR)—comes a lesser-known, but also insidious global intellectual property gambit: the Special 301 Report. The Special 301 Report is a survey conducted under the auspices of the Trade Act and has been issued every year since 1989. The USTR, like a malevolent Santa Claus, assesses whether the other countries of the world have been naughty or nice in their treatment of U.S. intellectual property holders, and raps them over the knuckles if they don't come up to scruff.
This would be absolutely fair enough, if the standards by which the other countries were assessed were globally-agreed standards, and if their adherence to those standards were assessed objectively, using a consistent and predictable methodology. But they're not; rather, the USTR has free reign to castigate its trading partners for whatever reasons it can come up with. And it's never short for ideas, because the International Intellectual Property Alliance (IIPA) and the Pharmaceutical Research and Manufacturers of America (PhRMA) supply complaints galore in the phonebook-length submissions that they file every year.
Thankfully, public interest groups are also given the opportunity to make their submissions ahead of the release of each year's report. After a break of several years, EFF has done so again this year—joined, for the first time, by partners from Argentina, Chile, Paraguay, Peru, Russia, and Vietnam. We've all banded together to defend their countries against being unfairly bullied by the USTR to adopt failed U.S.-style copyright, patent, trademark, and trade secret rules. You can read our complete submission here.
One of the key points that we and our partners make in this submission is that the process for drawing up the Special 301 Report is fundamentally flawed. Indeed, it skirts very close to the line of transgressing international law, by strong-arming other countries into changing their laws, outside of the official channels provided for resolving trade disputes through the World Trade Organization (WTO). Whereas WTO trade disputes (although problematic in other ways) are resolved by a notionally neutral arbitrator, the Special 301 Report is unabashedly partial to the complainant—the USTR acts as its own judge, jury, and executioner.
As such, as our submission points out, the USTR writes its own rules. Rather than sticking to WTO standards such as the TRIPS Agreement, it commonly demands that countries go further than their international obligations require—for example, demanding that they criminalize the act of operating a camcorder in a movie theater, that they accede to the problematic WIPO Internet Treaties that outlaw the circumvention of DRM, and that they adopt a DMCA-style notice-and-takedown regime for intermediary liability.
Conversely, the Special 301 Report completely ignores the trade benefits of copyright flexibilities, such as personal copying exceptions or fair use—or worse, it treats these as a trade barrier, and demands that countries amend or repeal them. No allowance is given to developing countries (which comprise the vast majority of countries called out in the Special 301 Report), despite the fact the intellectual property laws suitable for such countries are quite different to those required by a highly industrialized country such as the United States.
The result of this haphazard process for compiling the Special 301 Report is that the end product simply doesn't make sense. To quote from our submission:
Canada has been included in every edition of the Special 301 Report since its inception, despite been rated highly—only one place behind the United States—by law firm Taylor Wessing in its survey of IP protection in 36 countries around the world. Meanwhile countries like Fiji, Kenya, and Morocco, where pirated music and movies continue to be sold openly on the street, have never been listed.
We give these examples not to suggest that the countries that have never been listed should be listed; on the contrary, it is to show how utterly meaningless is the listing of countries overall, in that their inclusion or non-inclusion is apparently influenced by foreign policy considerations that bear no relation to the state of the country’s intellectual property laws and policies.
Particular comments added to our submission by our volunteer contributors from around the world include the following:
- In Argentina, widespread copyright infringement in the education sector results directly from the lack of adequate exceptions and limitations for education that U.S. teachers and students take for granted—yet the USTR never makes any comment suggesting that more copyright flexibilities are needed; only ever calling countries out for not doing enough to protect rightsholders.
- In Chile, the adoption of that country's “notice and notice” regime of Internet service provider (ISP) liability was the well-considered outcome of a lengthy democratic process, based on the very specific provisions of Chile's constitution—yet the USTR high-handedly expects that Chile will abandon this carefully-chosen model in favor of a carbon-copy of the DMCA.
- The U.S. government's tentacles have extended into Paraguay's domestic policy making through a USAID-funded anti-piracy program of the sinister-sounding Millennium Challenge Corporation. This intervention, under the guise of offering development assistance, actually amounts to an interference in that country's sovereign right to determine its own intellectual property policies.
- Last year's Special 301 Report makes factually incorrect assertions about Peru's intellectual property system, notably new rules on government use of software, while also failing to comment on long-overdue reforms that advance the public interest through the extension of copyright limitations and exceptions.
- Our Russian contributor highlights a range of tough intellectual property enforcement measures, that the Special 301 Report has overlooked. Yet Russia is still highlighted as one of the worst IP offenders—the end result of which, if Russian lawmakers heed the report, may be even more repressive rules that restrict Russian users' rights and freedoms.
- In Vietnam, although one of the poorest countries targeted in the Report, our contributor points out that huge strides have been made to address the concerns of rightsholders in such areas as software piracy, book piracy, and music piracy. Conversely, the contributor expresses valid concerns about how an over-emphasis on enforcement can impact on access to knowledge for some of the world's most disadvantaged peoples.
In our assessment, the one-sidedness of the Special 301 Report is such that the whole process is almost broken almost beyond repair. Yet if the process is to be maintained, we offer in our submission a few key suggestions that we feel should be adopted—including limiting criticisms of countries to areas in which they are in breach of their existing international obligations, especially those involving criminal conduct, giving more attention to the trade benefits of copyright flexibilities, assessing the human rights impacts of the report, and improving the consultation process to improve its balance and accountability.
The extent to which our submission is taken into account, if at all, will be seen when the 2015 Special 301 Report is released, most likely on around April 30 this year. Between now and then, we and our partners will have more to say about this process—and if you are from one of the countries targeted in past Special 301 Reports, we want to hear from you too.