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USTR's 2008 Special Section 301 Report

By Senior Copyright Counsel, Google Inc.

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?

Full post as published by The Patry Copyright Blog on April 28, 2008 (boomark / email).