2010 Special 301 Report still missing the mark
The United States Trade Representative has just released its 2010 Special 301 Report, which is an annual report card for how strongly other countries enforce the intellectual property rights of United States rights holders - rather like the converse of our IP Watchlist, which was released last week and focuses on how well a country's copyright laws advance the interests of consumers.
This year's Special 301 Report claims to be a "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors" - but in fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.
The only obvious improvement in the methodology of the report is that the USTR has now explicitly acknowledged that the the Doha Declaration on TRIPS and Public Health grants developing countries the right to issue compulsory licences for pharmaceuticals for public health reasons, and that they should not, as in previous Special 301 Reports, be criticised for taking advantage of that flexibility.
However, amongst the criticisms levied against countries in the Special 301 Report are China's efforts to promote "indigenous innovation" and its provision of electronic access to journals through public libraries, Canada's refusal to implement the controversial WIPO Internet Treaties which include legal protection for digital locks (DRM) on knowledge goods, India for "the perception that IPR offenses are low priority crimes", Malaysia for failing to criminalise the use of camcorders in movie theatres, Spain for allowing peer-to-peer file sharing in exchange for a private copying levy paid by consumers, and numerous countries for failing to grant extra rights to holders of pharmaceutical patents to protect the results of their health tests.
Consumers International would like to see a Special 301 Report that doesn't simply criticise other countries for failing to meet the US government's high standards, but also praises them for their adoption of more balance into their IP laws and enforcement regimes, including limitations and exceptions such as fair use. Until then, the Special 301 Report, advancing only the interests of US-based rights holders, will remain of little use to domestic policy-makers.
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