USTR Announces What Countries Have Been Naughty When It Comes To Intellectual Property

from the look-in-the-mirror dept

Every year, the USTR puts out its "Special 301" report, which tries to name and shame countries whose intellectual property laws and enforcement don't live up to some mythical standard. The report is not objective. It's not based on data. It's basically based on the entertainment industry and the pharma industry telling the USTR which countries they don't like... and the USTR taking their words and putting them into a report. It's become something of a running joke to pretty much everyone outside of the USTR or the entertainment and pharmaceutical industries. Last year, at a conference on copyright issues, I even heard people from the US Copyright Office making fun of the USTR's Special 301 report. When even your own country's copyright office is mocking your report on copyright issues, you know you've gone too far. Hell, even ACTA supporters are mocking the Special 301 report as being "petty."

What made the Special 301 report just slightly different this year, was that the USTR was just ever so slightly more open in listening to the public, rather than just industry, concerning who should be on the list. So lots of folks, including myself sent in comments. Apparently, they had little effect.

The USTR has released the list again (pdf) and it's basically the same deal as in previous years. No methodology. No real interest in hearing concerns of consumers or about the rights of individual countries to make their own laws. About the only thing that the public consultation did was allow the USTR to say in the report that it "enhanced its public engagement activities." It notes that there were 571 comments from interested parties, which is a lot more than in the past. But there doesn't seem to be much in the actual report that reflects the concerns raised by myself and many others.

About the only point that the USTR backed down on (and even so, it was marginal), was that it's willing to admit that there are concerns in public health circles that heavy handed enforcement of pharma patents in some countries creates significant harm. However, it still says it wants to "monitor" countries that do compulsory licensing of patents. Of course, as Jamie Love points out, these days, there's a fair bit of compulsory licensing in the US as well, which the USTR fails to mention. Oops.

While the Free Software Foundation notes that the industry's request to shame countries that advocate for open source software usage in government didn't make the list, that's not really a huge surprise. That was clearly an extreme position, which did a nice job highlighting how the industry was using the 301 report to be anticompetitive, not pro-copyright.

Finally, there's the Canadian situation. The punchline of the joke that is the Special 301 report is that Canada gets included every year, despite its strong enforcement of intellectual property laws (despite what the industry claims). Once again, the USTR report appears to ignore the reality in Canada, and simply make stuff up, entirely based on things the entertainment industry falsely claims about Canada. Of course, these days, Canadian politicians have returned the favor by telling the US that it "does not recognize the 301 watch list process" because it "lacks reliable and objective analysis." Of course, as Michael Geist notes, 4.3 billion people live in countries that the USTR finds problematic. Perhaps, he points out, the problem is with the US, rather than those other countries.

Filed Under: copyright, special 301, ustr

IIPA's Section 301 Filing Shows It's Really Not At All Interested In Reducing Copyright Infringement

from the incredible dept

We've covered some of the better comments to the USTR over the Special 301 report, such as the submission from the CCIA. But, of course, there were some ridiculous submissions as well -- and at the top of the list has to be the submission from the IIPA -- the International Intellectual Property Alliance, a trade association/lobbying group of trade associations/lobbying groups (including the RIAA, MPAA, BSA, ESA and NMPA) that proudly highlights how it has filed comments for the Special 301 report since such things began in 1988. But what's stunning is what the report effectively admits. Even though it claims to want to focus on ways to cut down on copyright infringement, the details show it wants the exact opposite. That's because in reports on a variety of countries, the IIPA seems to suggest that policies encouraging or mandating the use of open source software is somehow a bad thing.

But if your goal is to actually reduce infringement, then wouldn't you want to encourage the use of legal software? And by encouraging the use of open source software, you are making it that much less likely that infringement will be a problem, since the software will be cheaper. Basically, the IIPA is flat out admitting that it's not actually interested in reduced copyright infringement. It's abusing the USTR's Special 301 process to set up protectionist policies for the companies and organizations it represents -- and trying to use that process to deny efforts to actually reduce infringement.

This is really incredible when you think about it. Even though the USTR 301 report is supposed to be about figuring out ways to reduce infringement in countries around the world, the IIPA is trying to shoehorn open source software into the mix, claiming that it's somehow worse than infringing. While many of the IIPA's complaints have to do with mandates for open source software, it even goes after Indonesia, which is just recommending gov't agencies consider open source software -- and here, the IIPA basically exposes its agenda even further:

It encourages a mindset that does not give due consideration to the value to intellectual creations. As such, it fails to build respect for intellectual property rights...

Yes, you read that right. The IIPA is claiming that telling people to consider open source technologies -- which are not at all "anti-intellectual property rights" -- "fails to build respect for intellectual property rights" and doesn't properly value intellectual creations. In other words, in the eyes of the IIPA, properly licensed software that happens to be under an open source license is worse than infringing because of its price.

Filed Under: copyright, open source, special 301, ustr
Companies: iipa

Tech Company Lobbying Group Explains The Importance Of Letting Countries Make Their Own Policy Decisions On Copyright

from the good-for-them dept

The Computer & Communications Industry Association (CCIA), which represents a variety of big tech companies, including Microsoft, Google, eBay, Oracle and others, has come on strong lately as a defender against the ridiculous and unnecessary expansion of overly aggressive copyright law. This is good news -- seeing as some of the companies it represents haven't always seemed so enlightened on the subject. I was lucky to meet with some CCIA folks about a month ago, and they definitely seemed to recognize that a more draconian copyright policy actually does much more harm than good to the companies whose interests they represent. You may recall that it was the CCIA, a few months back, that put out the marvelous report that used the same exact methodology that the big pro-copyright lobbyists have used to claim the "size" of the economic impact on copyright, to point out that the economic impact of fair use trumps that by a wide margin.

So it's great -- if not surprising -- to see that the CCIA's filing to the USTR for the Special 301 report (pdf) actually matches much of my own filing, though from a more legalistic perspective (and focuses on Canada). The key points are the same, however: the Constitutional basis for copyright has never been that "more is better," but that we should be seeking the most effective ways to "promote the progress." Second, it notes that countries should be free to make their own policy decisions on copyright law, rather than being pressured into them by the US. It further notes that the USTR Special 301 process shouldn't be focused on legislative and policy issues, but merely enforcement of the law. Unfortunately, it's gotten far away from that.

There were a ton of great filings to the USTR that I've seen already, and hopefully the USTR really does pay attention to those beyond the usual crew of entertainment industry and pharmaceutical industry lobbyists, to recognize that this issue is a lot more complex than it has, at times, been treated in the past. Still, it's great to see a group like CCIA add its important voice to the discussion, too.

Filed Under: canada, copyright, special 301, ustr
Companies: ccia

Time To Change (Or Ditch) The USTR Special 301 Process That Pressures Other Countries To Adapt US IP Laws

from the get-rid-of-it dept

A few days ago, you may remember, I posted the comments I submitted to the USTR on the Special 301 report, where I pointed out the value of allowing countries to set their own intellectual property policy, rather than forcing everyone to follow US faith-based intellectual property policy. Traditionally, the Special 301 process was a way for industry lobbyists to get the US gov't to put countries they didn't like on a special "watch list," that would lead US diplomats, who didn't even understand the lack of factual basis for the report, to start putting pressure on other countries to change their intellectual property policies to make them more draconian (funny, isn't it, that they only went in one direction?). Basically, lobbyists would submit the details of countries whose IP policies they didn't like, and the USTR would basically turn around and put out a list based on what was submitted, with little effort to actually look at the situation. This year, at least, the public was able to submit comments (such as mine, linked above), but it's unclear how much of an impact that will have.

In the meantime, EFF and Public Knowledge have teamed up to ask the USTR to change the process and, at the very least, stop taking the word of industry lobbyists as if it were gospel. They also suggested that the USTR be more flexible in allowing countries to set their own IP policy -- noting, amusingly, that the US itself famously didn't implement its "international obligations" in the Berne Treaty for decades, because the country felt differently about certain aspects of copyright law. Hell, even today we're not in full compliance with Berne. But for some reason the USTR acts as if other countries need to fall in line with US IP policy, even as we've chosen to go in a different direction when we felt it was warranted.

Of course, the best thing to do isn't to change the Special 301 process, but to ditch it entirely. It serves no reasonable purpose and has been abused by industry representatives for years. It puts a strain on US relations with other countries, and harms the ability for other countries to craft IP policy in the way that they feel will best serve culture and innovation.

Filed Under: copyright, eff, public knowledge, special 301, ustr
Companies: eff, public knowledge