By Nate Anderson
| Published: April 27, 2008 – 11:45PM CT
Late last week, the US named and shamed its list of the worst offenders when it comes to protecting intellectual property; China, Russia, Argentina, Chile, India, Israel, Pakistan, Thailand, and Venezuela topped the "Special 301 Report" and earned the dubious distinction of being placed on a Priority Watch List (The Pirate Bay was also singled out for special mention). Together with the countries on the regular Watch List, the report called out a grand total of 46 countries, and the reaction has been fast and furious.
These Special 301 reports have been generated since the 1970s, but IP law didn't enter mainstream consciousness until the last decade or so. Now that topics like copyright and patent reform can make for front-page news, more people are complaining about the 301 process. An editorial running tomorrow morning (thanks to the miracle of time zones) in the Bangkok Post, for instance, takes on the US report, saying that the US government "has escalated its imagined dispute with Thailand far out of proportion."
The US continues to object to Thailand's practices surrounding generic copies of patented drugs, but the paper argues that "drug licensing is specifically legal in a way that open sales of songs and movies are not," and it feels like Thailand was unfairly singled out in part for trying to contain a public health crisis.
Taiwan, which was also named in the report, has "expressed regret" about being included in the list, according to the China Post. It was applauded for new law "aimed at ending illegal file-sharing over peer-to-peer (P2P) platforms," but the US wants to see a new law "regarding liability of Internet service providers for copyright infringements." It also wants a stricter crackdown on copyrighted material flowing through TANet, an ISP run by the country's Ministry of Education.
Canadian law professor Michael Geist takes his own potshots at the 301 process, which continues to place Canada on the Watch List, and he points out that Canada's own Department of Foreign Affairs doesn't think much of Special 301. "In regard to the watch list," said a Foreign Affairs official to the House of Commons last year, "Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our US counterparts. I also recognize that the US industry likes to compare anyone they have a problem with, concerning their IPR regime, to China and the other big violators, but we're not on the same scale."
And Israel, which made the top nine, was so upset about the possibility of remaining on the Priority Watch List that it filed an angry response with the US Trade Representative back in March, pointing out that calls for more DRM from US industries weren't required by any treaties that Israel had signed and that it saw significant problems with such measures. "The critiques and criticism of TPM [technological protection measures] both from business model perspectives and from copyright perspectives are almost endless," said the Israeli response, which wasn't enough to get the country off the hook.
One of the criticisms of the 301 process is that it is driven too heavily by American business interests; indeed, the 301 Report lists "affected industry groups and other private-sector representatives" as a major source of its information.
The International Intellectual Property Alliance (IIPA), which represents the BSA, ESA, MPAA, RIAA, and other major copyright business groups, has also responded to the 301 Report. Not surprisingly, it raised no significant objections and called the process "an important tool by which the US government has been able to secure improved protection and enforcement in our key markets around the world."
But not even the IIPA was fully satisfied by the 46 country list; it actually called on Canada to be upgraded to the Priority Watch List due to its failure to "facilitate the development of a healthy online marketplace for copyright materials."
Given the furious response to a proposed new copyright reform law in Canada that appeared ready to fill Big Content's Christmas stocking, the legislation that the IIPA wants to see may not be forthcoming soon… if it ever sees the light of day at all.
The IIPA, which does much to set the agenda of the 301 process, is coming in for criticism here in the US as well. William Patry, a top copyright scholar (and Google's lead copyright attorney), said last month that "the sheer arrogance and affront to the sovereignty of foreign governments by the IIPA's annual reports and effort to penalize those governments that do not toe the IIPA's line is breathtaking."
But it doesn't look like the IIPA has any plans to scale back on the rhetoric, which at the moment seems targeted especially at our neighbor to the north.