Special 301 Report Credibility Slammed After Canada’s Inclusion

With the Special 301 report’s credibility in doubt for years, it seems that there is a double down on wild accusations.

The Special 301 report is an annual tradition brought to you by the United States Trade Representative (USTR). For years, it has been laughed off because of its wild accusations and theories.

In 2012, for instance, the reports credibility hit rock bottom when it lashed out at Guatemala. The report effectively demanded that the country stop being poor and better enforce copyright laws.

This, of course, followed up 2010 where the credibility of the report was so severely compromised, that the Canadian government refused to acknowledge the validity of the report.

Last year, during it’s so-called “notorious markets” report, the report claimed that piracy is responsible for the spread of malware. While it is a theory that, on the surface, sounds logical, it turns out, even it’s own sources either didn’t point specifically to piracy at all or the numbers could actually not even be found at all. In fact, some of the sources it cited was blaming e-mail as a major source of the spread of malware. While it is not to say malware doesn’t exist on some piracy sources, solid numbers to say it is a major contributor to the spread of malware was nowhere to be found.

So, you’d think that maybe whoever writes these reports will finally get their act together and produce something credible for a change. Unfortunately, 2018 is showing that they are doubling down on the wild speculation and theories instead of trying to produce something that can be believed.

The report elevated Canada onto the so-called “priority watchlist”. This list features countries like Russia and China. So, as such, whoever wrote the report decided that Canada is just as bad. The reason why Canada was elevated to the priority watchlist is for these reasons (PDF):

Canada remains the only G7 country identified in the Special 301 Report and the downgrade to the Priority Watch List this year reflects a failure to resolve key longstanding deficiencies in protection and enforcement of IP. Because inadequate and ineffective IP protection and enforcement constitute a barrier to U.S. exports and investment, these issues are a continuing priority in bilateral trade relations with Canada.

For those who have watched Canada’s copyright laws for the last several years, this is, at best, a head scratcher. When the Motion Picture Association (MPAA) demanded that Canada pass anti-camcording laws in 2007, many observers blasted the demands, saying that Canada doesn’t need them because the act of camcording is already illegal. Nevertheless, defying all logic and reasoning, the Canadian government did the MPAA’s bidding and passed Anti-camcording laws in an effort to criminalize what is already illegal. From there, police continued to enforce the copyright act to crack down on those who bring camera’s into the movie theatre’s like they always have been.

In 2012, Canada passed Bill C-11. This bill represented a compromise in an effort to basically pass something. The copyright lobby demanded that Canada implement anti-circumvention laws. Despite wide-spread opposition, these laws got passed anyway to appease foreign multi-national corporations.

Michael Geist in 2017 observed that Canada is also home to some of the toughest anti-piracy measures in the entire world.

So, it seems that the accusations in the priority watchlist came pretty much out of the blue and with no real bearing on reality.

Geist, for his part, also finds himself critical of the reports findings:

With respect to border and law enforcement, Canada just amended its anti-counterfeiting legislation, including border measures, in 2014, establishing unprecedented powers for borders officials. The U.S. continues to pressure for increased powers – some without court oversight – which Canada has rightly rejected. The claims about patents and pharmaceutical protections come in the same week that the Parliamentary Budget Office estimated that patent term extension in the Canada – EU Trade Agreement will add hundreds of millions to Canadian health care and pharmaceutical costs. The Canadian government is considering reforms to address some of the world’s highest costs for pharmaceuticals, which the U.S. somehow argues makes Canada a pirate nation. As for copyright, the U.S. says it is concerned with fair dealing in Canada, yet the U.S. fair use provision already provides broader usage rights (including education) than those found in Canada. The geographic indication complaints have nothing to do with piracy or weak intellectual property protections. Rather, the U.S. is upset that the European approach to protecting geographic indications is spreading to other countries.

The U.S. decision to use the piracy list as bargaining chip for NAFTA negotiations highlights how pointless it is to cave to U.S. pressure on intellectual property policy. The U.S. will always ask for more as no reforms are ever enough. In that sense, the U.S. approach mirrors U.S. rights groups for whom reforms are similarly never enough. For example, the Canadian music industry lobbied the Canadian government for years to amend the law and implement the WIPO Internet treaties.

One thing is for sure, this latest report highlights the absurdity that is the Special 301 report. One can go so far as to say it’s just some person sitting down and, with no real knowledge of international copyright law, making up wild accusations and claims about random countries. If it sounds good in the authors imagination, it’s good enough for the report. Given the seeming lack of research the report seems to showcase, the truth in that may not be all that far off.

Drew Wilson on Twitter: @icecube85 and Google+.

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