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

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.

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