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?

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

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    29 Comments
    creator says:

    Re: lie

    It’s intellectual property, and you know that. It’s not any more immaginary than tangible property, and the incentives/disincentives for the economy are the same regardless. The harder it is to make a profit from what you produce, you’re less likely you’re to produce it, if that’s worth doing at all to make a living.

    But anti-intellecutualism isn’t unexpected among communists and the like, so a reduction in intellectual production is perhaps something actively sought.

    It’s probably perhaps envisioned as the first step to full-blown communism, anyways.

    Anonymous Coward says:

    Re: Re: lie

    Intellectual property is fine … right up until the point when it starts being enforced by the government. If you think competition comes from government guns being stuck in competitors’ faces on the behalf of you, the “creator” (monopolist), I don’t respect your concept of competition.

    If you can’t bring an idea to market, it isn’t the government’s job to prevent others from doing it so you can twiddle your thumbs.

    Also, the economic returns realized by a monopolist — someone who holds a legal privilege like IP — are called rent, not profits.

    Anonymous Coward says:

    “Spain and Sweden, for example, have been openly bullied”

    Russia got bullied probably even more, as the US made it clear that Russia had to obey US dictates or forget about the possibility of being accepted into the WTO (which was finalized 3 years ago).

    It would be great if Russia abolished all the new copyright laws and enforcement that were forced on the country, and returned to being the piracy haven it was in the 1990s. Because the whole reason for bending over backward to those copyright-enforcement demands –free trade– no longer exists any more due to the US-led trade embargo.

    Anonymous Coward says:

    dont they even think that this is the natural cause of events, and that what their doing is not in fact helping progress but are in fact actively FIGHTING against it……do they put anything else above greed and profit the actual thing that drives this stupidity……nahhh

    I wouldnt mind some copies of this report being sent to me, im running low on toilet paper

    Anonymous Coward says:

    Re: Re:

    Even though I up voted you, we as Americans have to protect our economy. And don’t get me wrong about protecting bubba’s or Gate’s income, we need to weed the weird and deceitful egos out of politics. Californian Senator Lee is the poster child for what needs to done. He went and fought for anti-firearm laws while making a deal to import ‘Real’ AK47s into California for a SF Chinese crime lord. Now we have these politicians trying to ban e-liquid devices because they are very effective smoking cessation devices. These devices are made by 1000s of little companies of less than $5 million yearly income. Banning these devices or over regulating them past ‘Good Manufacturing Practices’ regulations will kill jobs and keep people smoking.

    Cliffa says:

    US bullying

    I wish the US would stop waving it’s d**k around like some aging schoolyard bully looking to relive the ‘glory years’. The fact that the rest of the world now sees North America as a ‘problem’ that needs solving is directly related to the US’s dictatorial foreign policy. And as usual, Canada will be lumped in with them when the s**t goes down.

    Anonymous Coward says:

    Make a Fake

    Some people on this site may be very talented, in fact talented enough to make a fake report that looks like the real thing. The fake report should, just like the real report, purport to be a comprehensive list compiled by the US Gov’t of those countries and companies that have raised the ire of Libertarian minded people and organizations such as Mikey, the EFF et al.

    All we need do is get some hackers to quietly replace the real with the bogus report and with luck it will be months before anyone catches on.

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