Watching the Watchlists
Watching the Watchlists
Watching the Watchlists

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    On Thursday, the US Trade Representative issued this year's Special 301 Report, which is meant to highlight countries that are seen as not doing enough to protect copyrights, patents, and trademarks. Countries are placed on a “Watch List” or a “Priority Watch List.” Countries on the Priority Watch List face the possibility of trade sanctions.

    Placement on the lists is based upon comments and consultations from interested parties—and the parties who keep showing the most interest in this process are the industry groups that profit from IP. The list has been used as a means for the content industries to add the weight of the US government to their gripes about the state of other countries' IP laws. While some complaints may be justified (a number of countries are known as centers for commercial infringement), other complaints stem less from harms done to creators or copyright holders and more from a desire to push foreign legislation and policy in a direction favorable to the entertainment industry—regardless of whether or not those desired goals are consistent with the values of our own copyright laws.

    For instance, Professor Michael Geist notes in two different posts the absurdityof Canada being placed on the Priority Watch List, sharing the 12-country list with the likes of China and Russia.

    Israel is also placed on the Priority Watch List, for two stated reasons—apparently its patent laws and laws governing research exclusivity aren't sufficiently stringent for the pharmaceutical industry. For instance, the USTR notes that Israeli laws don't make it easy to get a patent term extension for products whose releases are delayed due to regulatory approval.

    It's odd that this process would apply the same label to two countries—once apparently because of commercial counterfeiting, commercial copyright infringement, and another apparently because its laws simply differ in some technicalities from our own. Perhaps there's more behind the issue—take a look at what the International IP Alliance was complaining about in its submission. Page 6 is particularly interesting—IIPA basically questions whether Israel has a mature enough judiciary to handle the doctrine of fair use (This is not a new complaint.).

    The Special 301 process thus acts as a megaphone, lending particular copyright industries the weight of US trade policy in lobbying foreign governments to tailor their IP laws to suit industry's desires. IIPA's above-mentioned comments on Israeli law go so far as to helpfully provide the Knesset with a redlined version (see page 7) of the law on transient and temporary digital copies that guts the exception.

    Meanwhile, Consumers International (CI) released its own IP Watch List, the first of a planned series which surveys the IP regimes of different countries and ranks them according to their benefits to consumers.

    This year, the CI watch list focuses on copyright, evaluating 16 countries and highlighting the five best and worst national copyright law systems. Countries were evaluated based upon criteria grouped into three broader categories: freedom to access and use by content creators, freedom to share and transfer, and administration and enforcement.

    The best countries to live in, for copyright consumers?

    1. India
    2. South Korea
    3. China (PRC)
    4. United States
    5. Indonesia

    When it comes to IP, this is a list of very strange bedfellows. The US frequently criticizes these countries for their IP practices, and yet is listed among them in having the best copyright laws for consumers. How is that?

    The report attributes this to a somewhat schizophrenic nature of US copyright policy—while US law is quite flexible (few countries have as robust a system of fair use) in allowing consumers to use and consume copyrighted media, it is very quick to single out for criticism other regimes because of flexibilities they may have.

    This inconsistency might well be attributed to the fact that our laws, their implementation, and our attitudes towards foreign laws are all coming from different sources. Our laws, though influenced by numerous industry and advocacy voices, are being made through the open deliberative process in Congress, where the full range of interests must be considered. Government implementation of those enforcement laws falls to law enforcement agencies, who also exercise discretion (sometimes more, sometimes less) in allocating their resources. The Special 301 process, however, is structured to pay most attention to the desires of IP holders—instead of reviewing what is best for trade, for foreign policy, or for US and global culture, the process is designed to review what's best for “market access for persons that rely on intellectual property protection.” By contrast, the CI watch list was reviewing what is best for consumers. Shouldn't our governmental policy reflect a balance of both?