On Friday, April 25th, the Office of the United States Trade Representative issued its 2008 Special 301 report. Here is a link to a Press Release that contains a link to the full report. Nine countries were placed on the naughtiest of the naughty list, the Priority Watch List:
China, Russia, Argentina, Chile, India, Israel, Pakistan, Thailand, and Venezuela. Of these China gets the most extensive treatment, 14 pages.
Thirty-six countries were placed on the naughty list, the Watch List:
Algeria, Belarus, Bolivia, Brazil, Canada, Colombia, Costa Rica, Czech Republic, Dominican Republic, Ecuador, Egypt, Greece, Guatemala, Hungary, Indonesia, Italy, Jamaica, Kuwait, Lebanon, Malaysia, Mexico, Norway, Peru, Philippines, Poland, Republic of Korea, Romania, Saudi Arabia, Spain, Taiwan, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, and Vietnam.
For those who think that USTR merely rubber-stamps IIPA’s recommendations, it should be pointed out IIPA had recommended Canada, Costa Rica, Egypt, Mexico, Peru, Saudi Arabia, and Ukraine be placed on the Priority Watch List, but they were placed on the Watch List instead. Conversely, IIPA had recommended that Israel be placed on the Watch List, but USTR put it on the Priority Watch List. IIPA had recommended Sweden, Brunei, Bangladesh, Nigeria, and Kazakhstan be placed on the Watch List, but USTR did not put them on the list.
The explanation for why USTR placed Israel on the Priority Watch List when IIPA had recommended it for the Watch List is easy: IIPA is concerned with copyright, and Israel has incurred USTR’s wrath over pharmaceuticals, caused by Israel’s large generic drug maker Teva. The explanation for why Canada was placed on the Watch List, rather than the Priority Watch list as IIPA recommended, may be attributable to Canada’s passing a camcorder law, but is likely also the result of IIPA’s misguided over-the-top approach to our neighbor to the north: an approach in which Canada is seen as a U.S. colony that should be brought to heel.
Still, there is a reference in USTR’s discussion of Canada that is worth objecting to, and that is the question of adherence to the 1996 WIPO copyright and phonorecord/performers’ treaties. I have noted before that there are a large number of countries that have neither acceded to nor implemented these treatises: Austria, Bolivia, Denmark, Estonia, the European Community, Finland, France, Germany, Greece, Iceland, Ireland, Israel, Italy, Kenya, Luxembourg, Namibia, Netherlands, Nigeria, Norway, Portugal, Spain, Switzerland, United Kingdom, Uruguay, and Venezuela. Of these countries the following are not on either of USTR’s list: Austria, Denmark, Estonia, the European Community, Finland, France, Germany, Greece, Iceland, Ireland, Kenya, Luxembourg, Namibia, Netherlands, Nigeria, Norway, Portugal, Switzerland, United Kingdom, and Uruguay. (Several of these countries have, however, implemented the obligations in the WIPO treaties into domestic law). If implementation of the WIPO treaties is so critical, then why are the many non-implementing countries not at least on the Watch List? Does the answer depend, selectively, on other factors, and have, therefore, nothing to do with adequate and effective protection for copyrighted works as defined in the relevant provisions of the 1974 Trade Act, as amended?
Let’s examine what USTR’s 2008 country report says on the issue. When it comes to Canada, USTR states: “The United States notes its continuing serious concerns with Canada’s failure to acceded to and implement the WIPO Internet treaties.” Serious concerns? What makes those concerns serious? What is it about adherence to the treaties that is so effective in addressing U.S. concerns? In discussing Israel, which is on the Priority Watch List after all and not the Watch List like Canada, USTR states that it “hopes to see Israel accede to and implement the WIPO Internet Treaties in order to address the growing problem of Internet piracy in Israel.” “Hopes” is of course, a very much milder word than the “serious concerns” language used for Canada on the same issue. What is left unexplained in the Israel report is how adherence to the treaties would by itself do anything to address piracy. After all, China, the worst of the worst in USTR’s report has adhered to the WIPO treaties. Venezuela, also on the Priority Watch List has not acceded but this failure was not even mentioned; ditto for Italy and Spain, which are on the Watch List. Bolivia, which is on the Watch List and has like Canada not acceded to the WIPO treaties, is merely “encouraged” by USTR to join the treaties.
So why is Canada singled out for USTR’s “serious concerns?” Only USTR knows the answer, but that answer cannot be based on deficiencies in Canada’s laws that are materially different from those of Israel, for whom there is a “hope” of adherence, nor Bolivia, which was “encouraged” to join, nor all the other countries on the lists for whom failure to join was so unimportant it was not even mentioned. More fundamentally one should challenge the very premise that even implementing U.S. law lock, stock, and barrel will have any impact on Internet “piracy” even as USTR uses the term. Were not over 20,000 lawsuits filed against individual consumers in the U.S. by the RIAA five years after passage of the DMCA, with RIAA head Cary Sherman remarking at the time: “The public has been educated, and re-educated, and re-educated again. People now know this is illegal… . People can no longer count on just getting a warning." Mike Musgrove, Recording Industry to Hot Music Trader, Washington Post, Nation column, June 26, 2003. Is there, then, any empirical data at all to suggest that adherence to the WIPO treaties by incorporating U.S. law verbatim will make any discernible difference in achieving USTR’s goals? If not – and I know of none – then what is the basis for USTR having “serious concerns” about Canada not having adhered? And what precise provision in Canadian law is currently missing that would deprive the record industry of the opportunity, right now, to sue 20,000 Canadian consumers? I am aware of none, and even more, I am aware of no provision in the WIPO treaties that, even if implemented directly, would change that result. Adherence to the treaties has nothing to do with P2P file sharing, but everything to do with TPMs/DRMs and protecting business models. Why not just be honest about what the objective is so we can have a honest discussion about the merits of that objective?
Monday, April 28, 2008
USTR's 2008 Special Section 301 Report
Subscribe to:
Post Comments (Atom)
7 comments:
I debated these precise issues with Steve Metalitz of the IIPA at the Fordham conference a month ago. Here’s my paper:
http://www.moffatco.com/pages/publications/HPK_Fordham_paper_2008_final.pdf
Basically, I outlined 15 ways in which in Canadian copyright law is already stronger and better than US - and that the US should look in the mirror rather than at its "special 301" watch list.
I also mentioned several ways in which the US flouts international law, such as s. 110, moral rights, and state sovereign immunity.
I’ve just been “uninvited” to speak at a supposedly neutral conference in Ottawa that will be dominated by the American Ambassador and other US spokespersons. I had planned to give a similar presentation.
http://excesscopyright.blogspot.com/2008/04/uninvited-to-public-policy-forum.html
Howard
I agree that the watch list is rather arbitrary, but one should note that the EU has passed the European Copyright Directive which at least follows the spirit of the Wipo treaties and has been enacted in the member states in recent years, complete with all the troublesome provisions about DRM circumvention ...
Thanks, Janko, I noted in the post that several of the countries had implemented the treaties, and of course as you rightly point out the EU eCommerce Directive is very relevant. But I believe in most if not all of the EU countries, the terms of the directive still have to be implemented in national law, rather than being national law simply because there is a directive. My point was that there are quite a number of the countries on the Watch List that have not implemented the treaties
(or the directive) but whose lack of implementation was not apparently an issue for USTR.
Chile has ratified the two WIPO Internet treaties. I think the inclusion of Chile in the list is because we still have not implemented into national law certain provisions of Chapter 17 of the Chile-U.S. Free Trade Agreement, mainly, the DMCA provisions. Also, because the government has not made its priority to curb piracy, I guess because they have more pressing issues to attend to.
Mr. Mois, all the terms are a bit funky; so in the U.S. we would say ratify means the Senate has voted in approval of the treaty. "Signed" means the U.S. delegation agreed that the U.S. would later ratify and implement to the extent changes are necessary. In the post, I am making this distinction: Canada I believe signed the treaties but hasn't implemented them, and I think this is the same for Chile.
My maverick view is that the U.S. should create an express national security exemption to assertions of IT rights in U.S. works in foreign countries which repress free speech like China and Saudi Arabia.
Pirated videos and books and music provide an antidote to Maoist and Islamic fundamentalist doctrines, and humanize Americans, in a way that could ultimately transform those societies for the better. Effective IP enforcement in those places simply enables government instruments of repression and censorship. In places like China and Saudi Arabia, the IP pirates are the good guys with Western leaning values and the enforcement agencies are the bad guys who undermine American influence and positive social, democratic and economic change.
Moreover, the economic impact of lost IP revenues in those places is fairly modest, in part because IP enforcement regimes there are ineffective, in part because the people in many of these countries are poor, and in part because the government bans a lot of Western media (or restricts it to elites) anyway.
A focus on trade over national security in the area of IP is not in our national interest.
Such exemptions would, of course, be lifted, when and if these societies Westernize (e.g. such an exemption once did but no longer makes sense for Poland).
Yes, both treaties have been ratified by the Chilean Congress, and published as official laws of the Republic in 2003. There has not been implementing legislation. I believe Congress is now working in a project of law to implement the Chapter 17 provisions of the FTA that deal with the DMCA norms.
Post a Comment