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


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  1. identicon
    Anonymous Coward, 20 Feb 2010 @ 9:53am

    Re: Ironic

    1. Useful to distinguish between a treaty that is self-executing and one that is not. Berne is the latter.

    2. Useful to note that US did not accede to Berne for about 100 years for a number of reasons, including, inter alia, copyright based upon fixation and not publication, wholesale elimination of formalities for establishing claims to copyright in a work, the extension of copyright terms to coincide with European norms (author keels over plus 50 years). This was no small matter given the fundamental shift in copyright law specified in Berne from traditional US copyright law dating back to the Copyright Act of 1790.

    3. The cited WTO document refers to an action initiated after the US had eliminated all formalities associated with copyright other than with respect to federal court jurisdiction and certain benefits from formal registration. The WTO document does reflect that some other countries did not think the US was being tough enough on businesses in the case of secondary transmissions. They did not warmly embrace US exceptions pertaining to liability for the playing of radios, TVs, etc. They wanted the exceptions to be reduced significantly so that royalties would be payable in even more circumstances.

    For all the constant whining and mischaracterization about the US adamantly insisting that all other countries conform their copyright regimes to those of the US, a review of history and the various international documents would be most helpful to place matters in their proper perspective.

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