Double Standard On The Special 301 Report: Industry Is Allowed Vague, Unsupported Statements; Consumer Advocates Are Not
from the funny-how-that-works dept
We’ve already pointed out the general ridiculousness associated with the USTR’s “Special 301” report, which is widely regarded as a joke. The report, which allows the administration to name which countries have been “naughty” when it comes to intellectual property enforcement, has no methodology. It has no objective measures. It has no accountability. Basically, industry groups submit their own reports on what countries are bad, and the USTR rewrites them as its own report, doing nothing to actually fact check the claims or to even quantify anything. In the past couple of years, the USTR has been more open about having consumer rights organizations — and even consumers themselves — submit their own reports, but there’s been little indication that anyone at the USTR has actually listened to any of those reports.
And, in a rather striking demonstration of how this all works, Stan McCoy, from the USTR (and apparently a top candidate to take over the Copyright Office, despite not being an expert in copyright law), presided over hearings concerning the Special 301 report recently, in which both industry groups and consumer groups appeared. Yet, as one observer noted, McCoy appeared to have a total double-standard concerning how he viewed the comments of each:
The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups? testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.
Testimony from groups like Global Health Organization, the Forum on Democracy and Trade, Oxfam, Public Knowledge, and others were met with aggressive push back and questioning on how criticism on the Special 301 process was at all relevant to the committee?s ability to render judgments on individual countries.
But that?s exactly the problem. The report is written so vaguely, and industry complaints taken at such face value, that specific criticism of the report is near impossible. I was surprised to learn that the report doesn?t include a list of criteria used to evaluate countries or even clear explanations on why specific countries are placed on the watch list, nor does it say which industry-submitted comments were the basis for citation.
So if you’re from industry, it’s absolutely fine to make vague, totally unsubstantiated statements — even if they’ve been widely debunked by actual experts and researchers. Yet, if you’re representing consumers, you need to have specific points to make or you get chided. And, of course, you can’t make any actual specific points because the USTR doesn’t have any specific criteria on which it bases the overall report. Brilliant.
Also, it appears that McCoy is somewhat uninformed about his own organization’s report (which he is closely connected with):
The best moment of the hearing, to me, was during Sean Flynn’s testimony on behalf of the Forum on Democracy and Trade. Flynn argued (for the second year in a row, I might add) that citing countries like Finland, France, Italy, and Japan for “unfair [pharmaceutical] reimbursement policies” was incredibly vague, hypocritical (because the US has similar reimbursement policies), and–most importantly–outside the statutory mandate of the Special 301 process. McCoy retorted that no such citation was in the 2010 report [pdf].
Flynn?s response? “It’s right here on page 14…”
And people wonder why foreign governments, and many of us who pay attention to these issues, consider the Special 301 process to make a mockery of the US government on intellectual property issues.