Today, Public Knowledge, along with the Electronic Frontier Foundation (EFF) filed comments in the 2010 Special 301 review process. We wrote about this issue last time calling upon you to file comments with the USTR. I want to thank everyone who responded to our call and filed comments. Here are our comments.
As we said before, the Special 301 process, which is supposed to ensure protection for US intellectual property, has morphed into an instrument used to exert pressure on foreign countries to curtail socially beneficial intellectual property limitations and exceptions, ratchet up penalties for infringement, and force countries to sign treaties that are not necessarily in their best interest. In pursuing these objectives, the Special 301 process neither respects the purposes of the Trade Act nor the purposes of intellectual property laws, which is to promote the progress of science and arts by balancing the rights of owners and users. In our comments we highlight the importance of restoring this balance in U.S. foreign policy.
Another significant shortcoming of the Special 301 process is its failure to demand higher standards of proof from rights-holders. In previous years, rights holder groups such as the International Intellectual Property Alliance (IIPA) have made assertions without citing to a single authoritative source. For example, in its 2009 comments, the IIPA made several claims about how particular market places in Israel were hubs for selling counterfeit products or how infringing books were being sold in India for under $5, all without citing to any source from which these “facts” were derived. In addition, rights-holders supply figures of claimed “losses” due to “piracy” using methodology whose validity many experts have questioned. While many of these assertions may be true, permitting such assertions to be made and worse still relying on them will inevitably lead to unfairly classifying countries as a threat to US IP interests. Yet the USTR seems to place blind faith in industry assertions.
We recommend a change to this state of affairs. The USTR should require rights holders to substantiate their assertions and subject their studies to independent evaluation before subjecting foreign countries to trade pressure. This would not only raise the credibility of the process, but also improve respect for the United States in foreign countries.
This year’s special 301 review marks a departure from the past. For the first time the USTR is allowing members of the public to testify at a public hearing. Although the road to reform is very long, we hope increased public participation will lead to a greater understanding of public interest concerns in the Special 301 process.