As readers may know, each year the Office of the United States Trade Representative (USTR) compiles assessments of intellectual property regimes around the world and places nations found lacking in their protection of (American) intellectual property on a ‘301’ list of varying degrees of disgrace. This process of judging nations is of questionable objectivity and has no international validity. Canada, having cemented free trade agreements with the United States decades earlier, can ignore its annual disgrace. Whereas those countries who sought trade agreements in recent years, or seek aid from the United States, have less independence with their domestic intellectual property laws. The USTR does not let niceties such as compassion enter discussion; as Michael Geist wrote last year:
… Perhaps the most shameful inclusion in this year’s report are a series of countries whose primary fault is being poor. For example, the list includes Guatemala, a small country the size of Tennessee with a per capita GDP of just over $5,000. It is coming out of an economic depression that had a severe impact on rural income. … In response to past pressures and the conclusion of a trade agreement, Guatemala amended its copyright laws, toughened penalties, created a special IP prosecutor, and increased IP enforcement within the government. Yet the USTR included it with the following comment: ‘However, pirated and counterfeit goods continue to be widely available in Guatemala, and enforcement efforts are hampered by limited resources and the need for better coordination among all enforcement agencies.’ Indeed, there is no obvious reason for inclusion on the Special 301 list other than an attempt to lobby a country that ranks 123rd worldwide in per capita GDP to spend even more money enforcing US intellectual property rights rather than on education, health care or infrastructure, the sorts of expenditures that might improve the country’s overall economy and ultimately lead to reduced rates of infringement.
The Program on Information Justice and Intellectual Property (PIJIP) at American University’s Washington College of Law submitted comments upon the 2013 301 process, reminding the USTR that by their own language in the Trans-Pacific Partnership talks: “A robust copyright framework ensures that authors and creators are respected, investments (both intellectual and financial) are promoted, that limitations and exceptions provide an appropriate balance, and that enforcement measures are effective (p.4).”
PIJIP proposes, “the 301 Process should examine limitations and exceptions just as it does other aspects of foreign law. Again, as emphasized by the TPP: “An important part of the copyright ecosystem is the limitations or exceptions placed on the exercise of exclusive rights in certain circumstances. In the United States, for example, consumers and businesses rely on a range of exceptions and limitations, such as fair use, in their businesses and daily lives.” As such, the 301 report should also identify best practices which “reflect the U.S. commitment to balance and describe the benefits of flexible limitations and exceptions similar to U.S. fair use (p.5).”
Enter Canada. Of the ten practices identified under Copyright in the Digital Age and Remedies and Enforcement (pages 6 and 7), with reference to the amendments implemented in Bill C-11, Canada serves as an example for six practices:
Copyright in the Digital Environment
- Adoption of “notice and notice” systems for limiting ISP liability that do not rely on censorship of online material without a court order, including in Chile and Canada.
- Implementing open ended, flexible exceptions that can adapt to technology and use changes, including in Korea, Israel, Philippines, and Malaysia, and are under consideration in countries including Australia.
- Offering flexible and open ended limitations and exceptions to liability [such as in Canada].
- Protecting free expression by promoting exceptions to copyright for non-commercial user-generated content, such as in Canada.
- Promoting exceptions to copyright for temporary reproductions for technological purposes (e.g. cache and RAM copies on internet), such as in Canada.
- Encouraging protections for cross border sharing of copyrighted works created under an exception for visually impaired, as proposed by the World Blind Union.
Remedies and Enforcement
- Limiting criminal remedies to infringing conduct that is both willful, for profit and on a commercial scale as is proposed for the U.S. under the Aaron Swartz Act and as exist in Canada.
- Promoting restrictions on damages to ensure proportionality to harm to rights owner, such as in Canada.
- Promoting safeguards on internet enforcement policies to avoid threats to free expression, business innovation and free trade.
- Promoting explicit human rights checks and balances on intellectual property enforcement measures, such as would be required under the U.S. due process guarantees.
PIJIP took the novel step of citing countries lacking in due attention to limitations and exceptions, and proposed that the USTR should do the same. Canada made an appearance on this list as well; fortunately, we do not have too much to fix:
The United States should be concerned that Canada’s exception for the incidental inclusion of a work in other work does not protect deliberate incidental inclusion. Canada should be applauded for its recent court decisions that have made the interpretation of their fair dealing clause much more flexible and also for its new and innovative copyright reform that has expanded users rights and protections (p.12).
PIJIPs comments are supported by a number of individuals and organizations including Electronic Frontier Foundation and Public Knowledge.