Once Again, China Is About To Use The US's Obsession With 'Intellectual Property' Against Us

from the and-we-walk-right-into-it-every-fucking-time dept

You've heard the narrative of course: China is supposedly terrible on intellectual property, always copying the US and swiping our secrets. This has been the popular narrative over the last few decades, with politicians and other folks continuously insisting in strong terms about how we need to get China to "respect our intellectual property." Early on we warned folks that this wouldn't end well, and so far we've been exactly right. Unlike many supporters of our patent and copyright systems, China actually recognizes that those systems are mercantilist forms of monopoly protectionism, and if there's a country out there that knows how to leverage such protectionism, it's China. And here's the ridiculous gift that the US has handed China: in demanding that it better "respect" patents and copyright, it gifted China the key to being protectionist in a manner that the US can't really complain about. It's a tremendous self-own by US policymakers, but it keeps happening.

We warned about this a decade ago when we pointed out that China was rapidly patenting stuff, and using all those patents to make a giant public display about how it was now "respecting patents." But, in practice, it was using those patents to block American competitors and to even block US companies in other countries. To China, its patent strategy is not about greater innovation, it's about using the monopoly-powers that (inexplicably) Americans are demanding China "respect" as an economic weapon against non-Chinese companies.

That's why it's astoundingly short-sighted that the USTR continues to target China in its silly Special 301 report. We've talked about this report for years. It's the report that the USTR comes out with every year, based solely on anecdotes and industry associations whining about this or that country -- and putting them on a "list" that has no practical impact other than that US diplomats are supposed to whine to the governments of those countries. While the list is sometimes used to browbeat smaller countries into changing their local copyright or patent laws, larger companies literally laugh it off. Canada, for years, has publicly explained that it completely rejects the USTR's methodology in the Special 301 report, and thus doesn't consider its findings to be legitimate. And Canada is less of an economic powerhouse than China.

All that is prelude to China now going on the attack against the US (one of many attacks, thanks to our President kicking off what he promised would be an "easy" trade war), claiming that the USTR's naming of China on the Special 301 Report is a political attack on China:

Chinese state media on Monday criticized the United States for its complaints about intellectual property theft, calling them a “political tool” intended to suppress China’s economic development.

Yeah, because in China, intellectual property totally is a "political tool," so why wouldn't they expect the same to be true in the US?

An op-ed article in the People’s Daily targeted the Section 301 report Washington issued in March 2018, saying the authors fabricated the claim that China stole hundreds of billions of dollars worth of intellectual property from the U.S.

“If the report is based on imagined or selective data, it’s a kind of science fiction novel,” it said.

“Intellectual property rights should be a bridge for innovation and cooperation among countries. In the hands of the U.S. it has become a political tool, a weapon to contain other countries, and a veil for bullying the world.”

First off, the "science fiction novel" line is pretty good (and possibly a nod towards the growing success of science fiction in China with Liu Cixin's books and movies based on his books becoming a cultural phenomenon there).

But, more importantly, all that the US has done over the past few decades is to teach China how to use patent and copyright law for political purposes, and now that Trump is so focused on this ridiculous trade war, watch out for China to leverage our own demands about intellectual property against the US.

Filed Under: china, copyright, intellectual property, patents, special 301 report, trade war, ustr

Canada Says It Won't Attend Special 301 Hearing Because USTR Prefers Industry Allegations To Facts And Data

from the lobbyists-all-the-way-down dept

The US Trade Representative's annual Special 301 Report repeatedly points out how other countries are "failing" US IP industries by not doing enough to prevent piracy. The "name and shame" approach hasn't done much to curb piracy, although it has generated a few pressure points to leverage during trade negotiations.

Countries appear to be tiring of the annual shaming. Michael Geist reports the Canadian government has issued a rebuttal ahead of this year's Special 301 hearing.

I recently obtained documents under the Access to Information Act that confirm the Canadian government’s rejection of the Special 301 process. Canada will not bother appearing today largely because it rejects the entire process.

The two-page memorandum goes directly to the heart of the issue: despite Canada now having some of the world's toughest anti-piracy laws, the USTR continues to make the annual claim that the country could be doing so much more. The memo [PDF] puts it bluntly: the USTR represents no one but industry leaders.

Canada is on the "Watch List" of the United States Trade Representative (USTR) annual Special 301 Report, issued on April 21, This report discusses the adequacy and effectiveness of United States (US) trading partners' protection and enforcement of intellectual property

The Government of Canada does not recognize the validity of the process as the findings tend to rely predominantly on allegations from US. industry stakeholders rather than on objective analysis.

The particular point of complaint is Canada's continued inclusion in the report, despite its many anti-piracy efforts. The press release accompanying it goes even further in expressing its displeasure with the USTR's industry-favoring Special Report.

Canada considers the Special 301 process and the Report to be invalid and analytically flawed because the process relies primarily on US. industry allegations rather than empirical evidence and objective analysis. Canada has a strong regime for the protection and enforcement of lP rights that is fully consistent with its international obligations, including under the North American Free Trade Agreement (NAFTA) and the World Trade Organization's Trade-Related Aspects of intellectual Property Rights (TRIPS) Agreement.

Canada remains on the Watch List in 2016 despite recent significant achievements domestically in relation to reform namely, the passage and coming into force of the Copyright Modernization Act and the Combating Counterfeit Products Act. in previous years, the absence of such reforms was a central concern of the US. in relation to Canada's regime.

The Canadian Government also passed amendments to the Trademarks Act, the Patent Act and the industrial Design Act to make Canada's intellectual property regime consistent with key treaties (the Madrid Protocol, the Singapore Agreement, the Nice Agreement, the Patent Law Treaty and the Hague Agreement). in 2015, Canada also completed its ratification of the 1991 Act of the international Union for the Protection of New Varieties of Plants Convention (UPOV 91).

It appears the Canadian government believes the 2017 Special 301 Report (due at the end of April) will continue to ignore Canada's IP protection capitulations advancements. And if the USTR is going to continue to name and shame without evidence or consultation of all affected stakeholders, there's really no reason for any foreign country to appear in its annual puppet show, much less continue to try to placate an entity that's never going to be satisfied.

Filed Under: 301 report, canada, copyright, special 301, special 301 report, ustr

USTR: Foreign Governments Engaging In Censorship And Rights Abuses Should Add IP Enforcement To Their 'To Do' Lists

from the let-the-USTR-set-your-priorities-for-you dept

If it's mid-spring, it means it's time for the US Trade Representative's "Special 301 Report," the annual "event" that names and shames countries who don't live up to US industries' intellectual property protection ideals. The same countries that have made the list for years still make the list, although a few have moved up a notch from the "Priority Watch" list to just the normal "Watch" list.

There are lots of familiar names on the lists, including such perennial favorites as China, India, Russia and… Canada. The report offers congratulations to countries like Italy, which has managed to steer clear of the watchlists by instituting censorious IP enforcement procedures like site-blocking. And it pats other countries on the head for ceding to the USTR's IP imperialism in exchange for upgraded 301 listings.

USTR has noted the willingness of two Watch List countries, Turkmenistan and Tajikistan, to work with the United States on improving their IPR protection and enforcement regimes and will conduct an OCR for each country to evaluate whether specific steps taken merit their removal from the Watch List.

The USTR has no interest in determining whether the US's IP laws are actually a good fit for other nations, especially those with a host of more pressing problems. All it cares about it whether they live up to the American ideal, as stated by the loudest "more-is-better" IP enforcement proponents. All in all, it's a completely ridiculous bit of paper rattling, served up annually for maximum theatricality.

Sadly, many of those who have landed on the USTR's Naughty 301 list take this process far too seriously. Even at its gravest, the USTR's only real threat is that if things don't change, it will be forced to print out Country X's name under a different bold sub-header in next year's report.

USTR extends the current OCR of Paraguay, which is currently on the Watch List, to provide additional time for conclusion of a bilateral IPR Memorandum of Understanding (MOU). USTR encourages Paraguay to conclude the MOU by June 30, 2015, and notes that if Paraguay does not do so, USTR will evaluate possible implications accordingly, including with respect to Paraguay’s status under Special 301.

Meanwhile, the USTR wants governments with histories of human rights abuses to institute stricter IP-related policies -- one that should better aid them in achieving their censorious ends. Thailand, which has already put mass internet surveillance in place to make sure its king remains unbesmirched, is encouraged to put its police force to use to round up infringers. Pakistan, itself engaged in censorship and mass surveillance of its citizens, is told it should hand over ex officio power to law enforcement to move against infringers without having to wait around for rights holder complaints. Ecuador, which already knows a thing or two about abusing the DMCA process, is elevated to the "Priority" list for not treating other nations' IP as worthy of the same sort of censorious actions. The USTR wants Mexico to divert law enforcement resources to combating counterfeiting and piracy, as if dealing with the consequences of four decades of US drug warring wasn't enough to keep it busy. And the USTR issues demands to Venezuela, as if that dumpster fire of a government has any interest in listening to what a US representative has to say -- especially one acting on behalf of a handful of US industries.

Like every year, the report is a joke. And it's not even a report -- not in the normal definition of the word. There's no independent action by the USTR to investigate IP laws and violations elsewhere in the world. Instead, it relies on submissions from entities like the MPAA and BSA and writes their accusations up as a "report" on the state of IP protections elsewhere in the world. Unfortunately, there aren't enough countries in on the joke. Canada, for one, at least issues nothing more than an eye roll in response to being listed as one of the world's top offenders, despite having IP laws at least as stringent as the United States'. And there's something both surreal and ugly about a process that includes the executive vice president of the American Apparel and Footwear Association -- whose members depend heavily on cheap foreign labor -- complaining that other countries aren't doing enough to prevent citizens from purchasing affordable knockoffs of the same clothes they're making for US companies, but can't actually afford to buy.

Filed Under: canada, censorship, copyright, ecuador, intellectual property, mexico, pakistan, special 301, special 301 report, ustr

USTR Releases Its Annual Special 301 'Naughty' List Of Countries; EFF Responds With 'Special 404' List

from the who's-naughty,-who's-nice dept

We've written plenty about the ridiculousness of the USTR's Special 301 list that comes out every year at this time, naming what countries are "naughty" on intellectual property issues. The list is based on no objective measurements, but rather on submissions from lobbyists for the big legacy players with an interest in expanding copyright, patent and trademark laws. The USTR then basically takes those submissions, moves around some words, and puts out this "official" list of naughty countries. US diplomats in the various countries then go around threatening those countries if they don't "do something" (which generally means passing more draconian laws that will help these giant US companies, often at the expense of the public). A few countries -- Canada in particular -- has made it publicly known that it does not accept the whole Special 301 list as legitimate, and rejects its findings. Other countries, however, which have less ability to stand up to the US, like Spain, will often scramble to try to pass new laws to "stay on the good side" of the US. Still, pretty much everyone recognizes that the entire process is a joke. As I've pointed out many times, at a conference, I once saw the US Register of Copyrights openly mock the Special 301 list. Unfortunately, this is a joke that is no longer funny. That's because so many countries are legitimately scared about being on the list, and pass laws to get themselves off the list, with little or no concern for the actual impact on the public, free speech or innovation.

Anyway, it's that time of the year again, and the USTR has released the latest list. It is more of the same in almost every way. It tries to shame the same "big guys" as always: China, Russia and India. And it celebrates "progress" from countries that have promoted out and out censorship. For example, it praises Italy:

On December 12, 2013, the Communications Regulatory Authority (AGCOM) in Italy adopted regulations to combat copyright piracy over the Internet. The regulations, which entered into force on March 31, 2014, provide notice-and-takedown procedures that incorporate due process safeguards and establish a mechanism for addressing large-scale piracy. Italy’s subsequent implementation of the regulations has been positive, resulting in successful enforcement actions against several websites that offered infringing content. These websites have ceased operations in Italy, removed infringing content, or initiated cooperation with copyright holders. The adoption and effective ongoing enforcement of these regulations is a significant achievement, which the United States continues to welcome.

This is misleading at best and insulting at worst. We wrote about those Italian "regulations," which actually gave power to regulators to flat out censor websites with no due process at all. It's not clear how the USTR considers those appropriate "due process safeguards" when the same rules in the US would clearly be prior restraint violations of the First Amendment. In fact, in operation, we've seen Italy order tons of websites blocked on the say so of a single individual, and websites blocked entirely, even after they had removed any infringing material, and with no clear due process in place at all.

Is the US really trying to argue that copyright enforcement is more important than Freedom of Expression? Because that's the message that's being sent. Meanwhile, as we wrote about a few months ago, consumer groups are challenging the legality of this system. Will the US condemn Italy for actually recognizing how dangerous this rule is?

Along those lines, the EFF has jumped in to offer a counter list, the amusingly named Special 404 list of stories that were missing from the Special 301 list of the USTR. As the EFF notes:

On the Web, the error code 404 shows browsers that something is missing. EFF believes that in the Internet era, the Special 301 Report is missing real stories from the countries that the Special 301 condemns. Our intention for this report is to show what’s missing from Special 301 and give some balance to the USTR’s biased review of global intellectual property laws by highlighting the arguments for balanced copyright, patent, and trademark law worldwide.

EFF’s Special 404 Report includes a selection of case studies from across the globe showing how overly broad intellectual property laws stifle access to cultural artifacts, artistry, and innovation. Our report also showcases examples in which flexible fair use interpretations have benefited the community, culture, and economy of a country. This report is not an exhaustive analysis of each country listed in the Special 301 Report. Rather, our report is designed to provide insightful case studies that will inform a larger conversation about how the USTR’s report is fundamentally defective.

While the Special 404 list does not include Italy, it does provide examples from other countries. For example, it highlights a story we covered last year of a Colombian student facing four years in prison for uploading an academic article to Scribd. And the reason he's facing such jail time was a terrible copyright law rushed through to appease an angry US government.

Gomez is a Masters student who has been researching biodiversity and working on the conservation of reptiles and amphibians for several years in the South American region. Throughout his career, the biggest obstacle he has faced has been accessing academic resources on global research databases. One day a couple of years ago, he came across a paper that was especially useful to his fieldwork. He later shared the research online on the website Scribd. The author of the paper then pressed charges against Gomez for the “violation of [his] economic and related rights.” Now the Colombian government is criminally prosecuting Gomez, and he could be sentenced to prison for up to eight years and face crippling monetary fines. Gomez is currently awaiting trial.

Analysis

There are two primary causes of these egregious penalties. The demands of the copyright industries in the Colombia-U.S. free trade agreement led to extreme enforcement language in the deal, which then led Colombia to enact new, harsher criminal sanctions over "unauthorized" sharing and uses of copyrighted works. Additionally, Colombia does not have a flexible fair use system like the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and is narrowly tailored to some specific situations that are not at all applicable to the digital age. While the Special 301 Report pressures Colombia to toughen its copyright regime, the current system is already inflexible and has a detrimental effect on researchers like Gomez.

And yet, amazingly, the USTR's Special 301 report says nothing about this abuse of copyright law in a manner that clearly impacts human rights and civil liberties (not to mention the chilling effects on education and research). A couple of years ago, we noted that CCIA had asked the USTR to put Germany on the Special 301 list for attacking fair use. After all, if the point of the list is to highlight those who are abusing US intellectual property laws, shouldn't it work for those who abuse them against free expression and innovation as well? The USTR basically ignored this request, once again cementing the fact that it doesn't seem to care one bit about issues like civil liberties or human rights, focusing solely on intellectual property maximalism.

The Special 301 list remains a joke -- but unfortunately, it's a joke that many countries feel they need to take seriously. Hopefully, the EFF's responsive Special 404 list will provide some more perspective, and help some countries push back on the idea that just because some lobbyists put their name on a list, it doesn't really mean they should have to change their laws.

Filed Under: copyright, intellectual property, patents, special 301, special 301 list, special 301 report, special 404, ustr
Companies: eff

US's 'Naughty List' Of Countries Whose Intellectual Property Rules We Don't Like Is A Joke That's No Longer Funny

from the what's-so-'special'-about-the-special-301-report dept

Mocking the ridiculous "Special 301 report" from the US Trade Representative has become something of an annual sport around these parts. As we've explained, the whole concept of the report is something of a joke: copyright, patent and trademark maximalists send in reports to the USTR, claiming which countries don't do enough to respect US intellectual property, and the USTR -- via no systematic or objective process -- rewrites those complaints into a report that declares certain countries "naughty" for their practices. The whole thing is such a joke that even those in the government will openly mock it. As I've said in the past, I once saw the head of the US Copyright Office openly joke about the purely arbitrary nature of the 301 report at a conference. Countries like Canada -- which are regularly named to the report, despite having copyright laws that are, in many areas, more stringent than the US's -- have openly declared that they do not find the Special 301 process to be legitimate, and thus do not pay any attention to it. A couple of years ago, Chile also made it clear that it felt the 301 process was illegitimate.

However, other countries which rely on good relationships with the US often aren't so lucky. Spain and Sweden, for example, have been openly bullied by US diplomats because of their placement on the list, leading both countries to pass draconian and anti-innovation updates to their copyright laws. The diplomats in various countries often assume, incorrectly, that the Special 301 report has some sort of real analysis behind it -- and they feel the need to put pressure on countries to change their laws in a way that makes the US happy.

The clearest example of what a joke the 301 process is came two years ago, when CCIA tried to use the "process" behind the list to get Germany put on the list for attacking fair use. That actually seemed like a perfectly good use of the list, as Germany was trying to force search engines (mainly Google) to pay up for posting snippets of news and linking to them (a plan that it has continued to push). Here was a clear case of abusing copyright law to harm an American company. And the USTR totally ignored it. Because the Special 301 process is not about saner intellectual property laws. It's about making intellectual property maximalists happy. That's why some of those maximalists have even used the process to get countries declared naughty for merely using open source software.

The EFF has released its own filing to the USTR for this year's Special 301 report, and the filing does a really nice job explaining what a joke the whole report is and how the whole process is broken, with clear examples of just how arbitrary and capricious the USTR's report can be:

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.

The filing also describes where the USTR goes wrong with its efforts (basically everywhere):

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.

Of course, many of us have been pointing out things like this for years, and the USTR keeps pushing forward, with the same broken process year after year after year. And why not? If it didn't do that, how would all those former USTR employees find jobs as lobbyists after they're done working for the government?

Filed Under: 301, special 301, special 301 report, ustr
Companies: eff

PhRMA Wants EU Put On US's 'Priority Watch List' For Plans To Disclose Basic Safety Info About Drugs

from the yeah,-that's-reasonable dept

We've written many times about how the USTR uses its Special 301 Report to bully smaller countries into toeing the US line. One of the most influential organizations providing input into who should sit on this year's naughty step is PhRMA, the Pharmaceutical Research and Manufacturers of America. James Love points out that its submission this year is notable for the following demand:

PhRMA requests that the EU be placed on the Priority Watch List for the 2014 Special 301 Report, and that the U.S. Government continue to seek assurances that the problems described herein are quickly and effectively resolved.

The European Union is accused of three basic sins, including ineffective patent enforcement -- rather implausible given Europe's extremely strong patent regime in this area -- and daring to take into account the cost of relevant generics when setting medicine prices. But the most interesting complaint is the following:

EMA data disclosure policy: PhRMA and its member companies are very concerned that current practices of the European Medicines Agency (EMA) and proposals being advanced through the EMA and the European parliament to provide virtually unrestricted access to and publication of biopharmaceutical companies' clinical trial regulatory submissions and data will substantially harm patient privacy, the integrity of the regulatory system, and incentives for pharmaceutical research and development. Failing to protect confidential commercial information contained in regulatory submissions is inconsistent with the EU's treaty obligations contained in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and primarily benefits competitors who wish to free-ride off of the investments of innovators. We are especially concerned that proposals to disclose regulatory clinical study reports (CSRs) in their entirety -- a class of document that the EMA has traditionally considered to be commercially confidential information -- will allow competitors to submit innovators' documents to gain regulatory approval in non-European countries.

Techdirt wrote about the EMA's plans to make clinical trials data for drugs available (including the key clinical study reports) back in November. As that post explained, this is basic safety data -- not "confidential commercial information" as PhRMA claims in its Special 301 submission. These are simply the scientific facts about a drug that establish what side effects it has, and whether it offers sufficient benefits to be approved for sale.

Drug companies that are confident their products are safe should welcome the opportunity to prove that in a completely transparent manner, and to benefit themselves in multiple ways from this general opening-up. PhRMA's desperate attempt to get the USTR to interfere with the European Union's plans would suggest that some of its members may have something to hide -- a view that recent scandals involving big pharma tend to support.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: european union, patents, pharmaceuticals, special 301 report, ustr
Companies: phrma

US Copyright Lobbyists Equate Fair Dealing To Piracy And Copyright Infringement

from the also:-our-jacked-up-rates-no-longer-as-lucrative-as-they-used-to-be dept

Access Copyright, the Canadian collection society that licenses publications for use in Canadian educational institutions, increased its per student rates 1,300% back in 2010. Anyone with a passing familiarity with the term "pricing yourself out of the market" could have predicted the inevitable outcome. Faced with suddenly exorbitant fees (that even covered stuff nominally outside of AC's purview -- like hyperlinks), Canadian universities dropped Access Copyright and began working to license educational materials without AC's assistance.

Access Copyright thought being the "only game in town" would prevent a mass exodus, but it soon became clear universities would be more than happy to deal with the complexities of direct licensing rather than take the easy route and be gouged by AC. (Fun fact: rates jumped 1,300% but less than 10% of these fees make their way back to the actual authors.) 14 of Canada's top 25 universities had dropped Access Copyright by the middle of 2011.

US publishers aren't happy with the outcome of Access Copyright's rate hike, which has resulted in a considerable revenue drop. Of course, they don't blame Access Copyright. In its submission for the 2014 Special 301 report (the report that serves as the copyright industries' naughty/nice list), IIPA (the uber trade group representing all of the other copyright maximalist trade groups) blames everyone and everything but Access Copyright.

As the Canadian education community continues to shift away from the Access Copyright licence, relying instead on a combination of site licenses for materials, open access, fair dealing, and individual transactional licences, U.S. publishers are now urging the U.S. government to pressure the Canadian government to take action.

Yep, the problem here is fair dealing (the Canadian version of fair use), open access and the universities' willingness to swim in the convoluted waters of individual licensing rather than be extorted by Access Copyright. A few long paragraphs from the submission detail US publishers' unhappiness with the current situation and their expectation that the US government will "do something" to restore its access to exorbitant licensing fees.

U.S. publishers serving the educational market with textbooks, journals and other materials are currently facing a comprehensive collapse of an important element of their Canadian market: licensing revenue for permission to copy works for educational uses. Well-established collective licensing mechanisms for administering such permissions are reeling under the combined impact of adverse judicial decisions and drastic legislative changes.

Interrupted here to note that US publishers do not consider a steep rate hike to be the problem. Instead they call out "judicial decisions" and "drastic legislative changes," ignoring the economic reality that if you suddenly jack up prices, customers tend to flee.

The Copyright Modernization Act added “education” to the list of purposes (such as research and private study) that qualify for the fair dealing exception. Because “education” is not defined, the amendment creates an obvious risk of unpredictable impacts extending far beyond teaching in bona fide educational institutions (and far beyond materials created specifically for use by such institutions).

Entities heavily vested in copyright protection hate exceptions…

Even before the fair dealing amendment came into force, some of the decisions in the “pentalogy” of copyright decisions issued by Canada’s Supreme Court in July 2012 posed a direct threat to the educational licensing market. These decisions underscored, among other things, that Canadian courts are to treat fair dealing, not as an exception, but as a “user’s right,” subject to a “large and liberal interpretation”; that the purposes of the putative user, not those of a commercial or non-commercial intermediary that actually makes the copy and supplies it to the user, are of primary relevance in determining whether a dealing is fair; and, that factors such as the availability of a license to make the use, and even the overall impact of widespread unlicensed use on the actual or potential markets for the work, carry much less weight in Canadian law than they do in U.S. fair use jurisprudence.

Canada has gone considerably farther than the US, viewing fair dealing both as a right and something subject to "liberal interpretation." The complaint here boils down to that last sentence: Canada's law isn't as restrictive as the US's and, therefore, must be forced into compliance by the US government.

Although the Alberta Education v. Access Copyright case in the Supreme Court’s pentalogy directly affected only a marginal aspect of the educational copying collective licenses — reprographic copying of a few pages per student per year of short excerpts of already purchased supplemental texts by K-12 teachers for use in class instruction — its ultimate impact has been much more destructive.

Only in the fevered mind of a maximalist is expanding fair use exceptions considered "destructive." Keep in mind that this is an industry that is actively begging its respective governments to help it make it more expensive to educate students.

Lawyers for primary and secondary school systems across Canada, giving both the precedents and the new fair dealing amendment the “large and liberal” reading that the pentalogy decisions encouraged, concluded that fair dealing now eliminates the need for them to obtain any license from a collecting society such as Access Copyright, including for uses such as copying of primary textbooks or of newspaper articles, course packs, digital copying (including digital storage and distribution through learning management systems), and copying for uses outside the classroom. Consequently, as soon as the new Act came into force, virtually all K-12 school boards across Canada cancelled their licenses with Access Copyright.

The publishers once again fail to consider the possibility that lower rates might have helped it retain more licensees. This isn't just because of legislation and court decisions. This is also the bleeding that normally results from an enormous, self-inflicted wound.

Anticipated 2013 annual licensing revenue of at least C$12 million to right holders and authors — much of it destined for U.S. publishers, which enjoy a large market share in the educational sector – evaporated. Similar legal advice was provided to post-secondary institutions, and many of them have declined to renew their Access Copyright licenses as they expire. Access Copyright negotiations with two of Canada’s largest universities — the University of Toronto and Western University – collapsed in recent weeks over this issue. The licensing revenue stream from higher education – historically larger than the K-12 revenue – is thus in immediate jeopardy...

Just in case anyone reading the submission might be unsure of whose interests are being protected, the publishers spell it out in black and white.

After stating its case against fair dealing, the publishers move on to their demands for government intervention.

Publishers are already re-assessing their planned investments in new materials for this core market. We urge the U.S. government to engage with Canadian authorities to ameliorate this threat to the entire educational publishing market in Canada, which is already having deleterious impacts on publishing revenue, investments and jobs on both sides of the border.

In other words, punish the Canadian government for Access Copyright's sins.

But all of this above isn't even the best/worst aspect of this submission. This long complaint about the whirlwind Access Copyright reaped after its 1,300% fee increase makes up the bulk of a subsection in the IIPA's submission. Guess what subheading the US publishers chose to place their attack on fair dealing under.

The Piracy and Infringement Situation in Canada – Offline

That's right. US publishers feel fair dealing exceptions are inseparable from piracy and infringement. Legal exceptions also known as the rights of users, backed by Canadian legislation and judicial decisions, are discussed (well, complained about) in a subsection supposedly dealing with infringing activity. By the time the US publishers have finished griping about fair dealing, there's hardly any room left to discuss actual infringement or piracy. But if you have any doubts about the mindset of US publishers when it comes to fair use exceptions, check this out. This is the last sentence of the last paragraph dealing with Access Copyright and fair dealing.

Even if some expanded uses are permitted, the appropriate balance must still be struck so that educational publishers are duly compensated for their works, thus ensuring a viable domestic \ marketplace for commercially-published educational materials.

This is the first sentence of the immediately following paragraph.

Serious piracy problems persist in Canada’s offline marketplace as well.

The annual Special 301 reports have always been a joke -- albeit an in-joke created by lobbyists and subservient government officials. If there was ever any doubt US copyright industries are lobbying hard for the US government to remake the world's IP laws in its own image, this long complaint about the "unfairness" of another country's fair dealing laws completely erases it.

Filed Under: canada, education, fair dealing, fair use, licensing, publishers, special 301 report, ustr
Companies: access copyright, iipa

New Special 301 Report Shows Spain's Kowtowing Paid Off

from the pat-on-the-head dept

Today, the USTR released its 2013 Special 301 Report (pdf and embedded below), the notorious "watchlist" of foreign countries where intellectual property is supposedly in danger (which is in fact just a self-serving diplomatic pressure tool). Ukraine has been dubbed enemy number one, with Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Russia, Thailand and Venezuela on the priority watchlist, so expect the diplomatic push for American-style IP laws to intensify in those countries.

One thing to note is the fact that Spain succeeded in staying off the list. As we recently noted, the Spanish government has essentially admitted that its recent copyright reform efforts were designed entirely to keep the country out of the 301 Report. Well, it looks like they got their wish, and all they had to do was sell out their country to US interests. Nobody will be able to say that they sit on a list of dirty thieves alongside backwards pirate nations like Canada and Finland, which brazenly ignore the kind US diplomats who surely have our best interests at heart. Congratulations, Spain!

Filed Under: spain, special 301 report, ustr

CCIA Argues Germany Should Be On The 'Naughty' Special 301 List For Attacking Fair Use

from the special-301-judo dept

For years we've talked about the infamous Special 301 Report, in which copyright maximalists complain to the USTR about countries they feel aren't cracking down enough on "infringement." The USTR then comes out with an official report that lists what countries have been "naughty" (with two levels of naughtiness). There is no objective measure -- basically the USTR just lists out the countries that the biggest maximalists dislike the most. And then the State Department uses that bogus list to apply pressure to foreign governments to get them to ratchet up their draconian copyright laws. While the "comment" period is open to anyone, it tends to be dominated by maximalists. We tried filing our own comment a few years back, but have since realized that the deck is completely stacked. In fact, even the official questions they ask you to answer are heavily biased so that you can only complain about other countries that are "denying adequate and effective protection for intellectual property rights."

So while we figured it wasn't worth filing anything, our friends over at CCIA, who have backed some of the research that we've done, put in their own comment, which called out Germany for its attack on fair use. As you may recall, Germany has been pushing forward with this plan to force search engines to pay up for posting snippets and links to news sites. This is a pretty clear attack on basic fair use concepts that allow the internet to function. If you believe, as we do, that fair use is a right, then Germany's actions are, technically, a "denial of adequate and effective protection for intellectual property rights," and thus the country belongs on the Special 301 list. As CCIA writes:

These comments address a troubling new legislative proposal in Germany that would violate long-established rights of Internet services to make use of information online. The legislation would create a new Leistungsschutzrecht for press publishers, such as newspapers and magazines. Contrary to Article 10(1) of the Berne Convention, this proposed legislation would prohibit Internet platforms from displaying snippets of news stories without obtaining the publisher’s permission and paying a license fee for these quotations. While it is as of yet unclear, we expect that the new right will be administered by a collecting society, with newspapers that wish to exercise the new right being required to join. If this comes to pass, no search engine or affected social media platform will be able to directly negotiate with any publisher; they would instead be forced to enter into a blanket, compulsory license, or be penalized as an infringer of IP rights. Thus, the proposed legislation is simply a government mandated compulsory license, transferring money from one industry to another. As such, it would constitute a costly new market access barrier. Some commentators have even speculated that the legislation might force news search services and affected social media out of the German market, by not returning results for German IP addresses. At the same time, this proposal would have obvious debilitating effects on German-based Internet platforms.

There's a lot to be said for this argument, and for recognizing that user rights are an important part of copyright, not just the rights of the copyright holders. In fact, it's quite reasonable to argue that the public's rights should greatly outweigh the privileges granted under copyright. And, now, we will see if the USTR actually pays attention to such things, or if they will ignore it and only focus on maximalist privileges, rather than the public's rights. At the very least, this provides an excellent suggestion for filings in the future: there are lots of countries that don't have nearly enough respect for fair use or for other rights of the public when it comes to copyright.

Filed Under: copyright, fair use, germany, special 301 report, ustr
Companies: ccia

IIPA Wants Canada And Spain On The 'Naughty' Special 301 List Even Though They Brought In Tough New Copyright Laws

from the base-ingratitude dept

Here on Techdirt, one of the things we look forward to each year is the comedy production known as the 301 Report, where the US makes the world line up in a row, and then names and shames all the naughty countries whose intellectual monopoly laws aren't outrageous enough. In advance of the official naughty list, there are helpful suggestions from the fans of monopoly maximalism, including the International Intellectual Property Alliance (IIPA), which has just released its 2013 demands. Mostly it's the usual suspects -- China, India, Russia etc. But there's an interesting change from the previous year's list: Canada has moved from the really naughty "Priority Watch List" to the only slightly naughty "Watch List".

As Michael Geist points out, far from being good news, that's outrageous:

Those that thought passing Bill C-11 -- the Canadian copyright reform bill that contained some of the most restrictive digital lock rules in the world -- would satisfy U.S. groups will be disappointed. The IIPA wants Canada back on the piracy watch list, one notch below the Special Watch List (where the US placed Canada last year).

Despite the praise for Bill C-11 last year, the groups are right back in criticism mode and demanding reforms. The IIPA is now unsure if the enabler provision will help stop sites that facilitate infringement (despite the fact that its members have yet to use the provision) and concerned with the prospect of new exceptions to the digital lock rules. In fact, its criticisms of the rules for Internet providers (it wants a notice-and-takedown system, tougher rules on search engines that link to infringing content, and new rules to target repeat infringers) are so strong that the organization implausibly claims possible non-compliance with the WIPO Internet treaties.

Nor is Canada the only country that might be surprised to find itself on the naughty step again. As Mike explained last year, Spain was removed from the official Special 301 list for being an obedient little vassal state and bringing in the punitive Ley Sinde, as instructed, despite huge public and business opposition. And now, guess what? The IIPA already wants Spain back on the list for not doing enough in this area (pdf):

Contrary to the expectations surrounding the implementation of ley Sinde that led to Spain's removal from the Special 301 Watch List last year, Spain saw no positive developments in 2012.

Let's hope Canada and Spain -- and everyone else -- draw the obvious conclusion from the IIPA's latest calls: that no matter what countries do, no matter what legislation they bring in, and no matter what disproportionately harsh punishments they inflict on their own people, it will never, ever be enough, and there will always be further demands, and further threats to put them back on the naughty lists. The only solution is to stand up to this blackmail once and for all, and to treat the Special 301 list with the contempt it deserves.

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Filed Under: 301, canada, copyright, new laws, spain, special 301 report
Companies: iipa