The United States Trade Representative (USTR) is asking for public comment in its Special 301 inquiry for 2012. Special 301 is an annual report that the USTR compiles listing countries that allegedly fail to provide adequate and effective protection for intellectual property rights of US persons. As we have said before, this report has turned into an exercise that arm-twists countries into instituting laws and policies that serve the interests of big content even where these policies hurt the free expression and due process rights of citizens.
The dangers of such overreach in the name of protecting intellectual property were amply demonstrated by the recent SOPA/PIPA debates. However, the phenomenon of policymakers favoring big content and disregarding the rights of the public is not new. In the US this attitude has brought us laws like the Digital Millennium Copyright Act (DMCA) that prevent breaking DRM even for legitimate reasons. In the international arena, it has resulted in agreements like the Anti-Counterfeiting Trade Agreement (ACTA).
And Special 301 is the vehicle used to propagate this same approach and force countries to do the bidding of big content. Here is how it works: A country is named in a Special 301 Report on the “Watch List” or “Priority Watch List.” This is a signal to the country that the USTR is going to focus its effort on pressuring the country to modify its copyright and other intellectual property (IP) laws and policies or changes its enforcement practices. The modification in these laws and policies may be brought about by requiring the country to adopt and implement provisions of agreements, such as ACTA or institute other legal reforms the USTR suggests. Furthermore, countries would not have a great deal of discretion in how they institute these reforms. Instead, the USTR would examine these laws, from the rights holder’s perspective and decide whether to place the country on the Priority Watch List or Watch List the next year depending on its performance. This has been the modus operandi when the USTR has asked countries to implement a previous agreement favored by the USTR- the WIPO Copyright Treaty (WCT) adopted in 1996.
So, for instance, the USTR has cited Canada in Special 301 Reports of 2011(page 27), 2010(page 25), 2009 (page 17), and 2008 for failure to implement the DRM provisions of the WCT. These are the same provisions that lead to the DMCA in the US. Among other things, the DMCA prevents you from ripping your DVD to play the movie or TV show you purchased on another computer or devices that do not have a DVD drive (ex: iPad).
Why should this matter to you? When the USTR forces other countries to enact bad copyright laws and practices, an international groundwork is laid for what is the international standard for copyright protection and enforcement. Through a mesh of national laws and international agreements, the US and other countries will be bound to maintain ever increasing levels copyright protections that impinge on your free speech and due process rights. Efforts at reforming these laws in Congress and at the international level will become exceedingly hard.
If the erosion of free speech and due process in the name of copyright protection concerns you, you can make your voice heard. Sign PK’s petition urging the USTR not to force countries to sideline free expression and due process concerns in the name of copyright protection. You can also file comments your own comments here.