2012 USTR Special 301 Report blind to weaknesses of IP regime

13 USTR logoThe United States Trade Representative (USTR) Special 301 Report for 2012 has just been released, one week after CI's own IP Watchlist. The difference between the two is that the 301 Report rates countries outside the US according to how strongly they protect intellectual property rights (IPRs) of US rights-holders, whereas the CI IP Watchlist rates countries according to how consistent their intellectual property (IP) laws and policies are with consumers' interests in access to knowledge.

The Special 301 Report is notoriously blinkered in its approach to IPRs, by failing to balance their benefits to monopoly rights-holders, against the costs to the public, such as the reduction of access to public domain works when copyright terms are extended, or the damage to fair use or fair dealing rights when digital lock rules are strengthened. Together with this, the report is typically full of unsourced statements such as (in the 2012 report) "trade in counterfeit and pirated products often fuels cross-border organized criminal networks and hinders the sustainable economic development of many countries".

This continues in 2012, with the report remaining significantly out of step with consumer sentiment in many ways.  For example, Spain is criticised for decriminalising non-commercial peer-to-peer file sharing, an act which few outside of the music and motion picture industries believe should have ever been a criminal offence anywhere.  And in light of ongoing protests worldwide over the Anti-Counterfeiting Trade Agreement, one can hardly imagine how the USTR can keep a straight face when saying "The ACTA is the first IPR agreement to make clear that it will be implemented in a way that preserves freedom of expression, fair process, and privacy."

One new bright light in the 2012 report is that the USTR describes as a "best practice" the "innovative mechanisms that enable government and private sector rights holders to voluntarily donate or licence IPR on mutually-agreed terms and conditions", though this does situate access to medicines firmly within an IPR paradigm, disregarding other means for incentivising the development of new medicines.  The USTR also states that it "respects its trading partners' rights to grant compulsory licences in a manner consistent with the provision of the TRIPS Agreement", and has established a new TEAM ("Trade Enhancing Access to Medicines") to ensure that this policy is upheld.

But although public health advocates have managed to wrest this concession from the USTR through sustained lobbying, there is no such flexibility demonstrated in respect of cultural, educational and scientific works protected by copyright, or those protected by software patents. It is for this reason that CI's IP Watchlist provides an essential counterpoint to the USTR document. Our position is that while rewarding creators is important, flexibility and balance in IP policy is equally important to further other important social interests such as access to knowledge, that the USTR ignores.

The 2012 IP Watchlist will be submitted as an input to next year's USTR Special 301 Report. You are also encouraged to send a copy to your own parliamentary representatives, to remind them that US-based rights-holders are only presenting half of a much more complex picture on intellectual property and the public interest.

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