USTR Special 301 Report Credibility Continues to Hit Rock Bottom

We’ve noted several times in the past just how bad the credibility of the USTR Special 301 report has been over the years. This year’s report is not only no exception, but could very well outdo the previous years of proving that it lacks credibility.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

In previous years, there was substantial evidence that says that the credibility of the USTR Special 301 Report is highly questionable. With little evidence to back up the wild claims and accusations cluttered throughout the report and the arbitrary nature of how countries end up on the watch list and priority watch list to name two examples, the only amazing thing about the report is the fact that there are those out there that actually treat this report seriously.

The report is available on the USTR website (PDF). We looked throughout the report for any evidence used for the making of this report. The only thing we were able to find was notes on which countries joined the WPPT and WTC in recent times. Beyond that, there was no evidence to be found at all. No citations, no real references, nadda, zilch, nothing. So, really, there is no credibility to be had in this report period. Nevertheless, we continue on.

What tends to speak volumes about the report is, curiously, the section devoted to “positive developments”. One item that stuck out for us was the development in Spain:

Spain — In recognition of Spain’s recent efforts with respect to IPR protection and enforcement, the United States has removed Spain from the Watch List. The United States applauds Spain’s adoption of regulations implementing the “Ley Sinde,” a law to combat copyright piracy over the Internet. The United States will monitor the implementation of these measures and their overall effectiveness in addressing online piracy. The United States continues to have serious concerns with respect to criminal IPR enforcement, particularly the 2006 Prosecutor General Circular that appears to decriminalize peer-to-peer file sharing of infringing materials, and urges Spain to take steps to remedy this significant problem. The United States will work with Spain to address these and other issues.

The Spanish Sinde law, if you recall, was a hugely controversial piece of copyright legislation that would, among other things, taken to the Spanish court system on the grounds of the law being unconstitutional. While it is clear that shutting down websites in the Sinde Law remained intact after becoming law, it is unclear whether or not blocking foreign websites remained intact as well from the information we gathered on the matter.

Another example of what the 301 Report deemed a positive development was also the following in Russia:

Russia — Russia enacted a law to establish a specialized IPR court by February 2013 and appropriately amended its Criminal Code to revise criminal thresholds for copyright piracy. In addition, the United States recognizes progress in connection with criminal proceedings against, an infringing website in Russia, and the civil findings against vKontakte, Russia’s largest social networking site, for copyright infringement.

What stood out for me was the idea of setting up a court system specifically tailored to copyright infringement. I find the idea disturbing given that the resources that went into something like that could have easily been put in to something more productive like increasing sustainable developments in northern communities as these places deal with climate change or putting more resources into dealing with the economic reality of today’s world to name two possible examples. If the country I lived in ever got to the point where there was entire court system devoted strictly to copyright infringement, I would argue that the country has reached new heights in government waste.

Either way, if actions like this are required to, as the Canadian government once put it, make the Americans happy, then I hope that “the Americans” (or, more accurately, American corporate interests) are never happy with my country.

What was far more outrageous, though, was something Michael Geist spotted in the report. It was what the US government said about Guatemala (a country just south of Mexico for those not familiar with the country and trying to picture it’s location in the world) that really attracted some attention. The excerpt found by Michael Geist read as follows:

Guatemala remains on the Watch List in 2012. Guatemala continued to make progress in 2011 by enacting legislation to strengthen penalties for the production and distribution of counterfeit medications. In addition, Guatemala’s IPR prosecutor remained active in the past year, despite a lack of resources, and enforcement efforts resulted in a sustained level of seizures and an increase in convictions. The interagency IPR working group also remained active in working to improve coordination among IPR-related agencies, and Guatemala participated actively in training efforts. 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. The United States encourages Guatemala to continue its enforcement efforts against the manufacture of pirated and counterfeit goods, and to take steps to improve its judicial system. The United States looks forward to continuing to work with Guatemala to address these and other matters.

As Michael Geist rightfully interpreted it, this amounts to the government demanding that Guatemala stop being poor and enforce copyright laws better. Michael Geist further explains:

Note that the USTR is not criticizing Guatemala’s laws nor enforcement efforts as the government has complied with repeated U.S. demands to shift resources toward IP enforcement. 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 same tactic is employed against countries such as Costa Rica (81st per capita GDP with complaints that more resources should be allocated to enforcement) or Romania (77th per capita GDP with complaints about more resources on enforcement). Moreover, with repeated complaints against countries seeking to ensure adequate access to medicines for their citizens or access to books in schools, this year’s report hits a new low. It demonstrates the failure of the enforcement agenda and stands as an embarrassment for one of the world’s richest countries to prioritize its IP rights over human and economic rights in the developing world.

I can definitely agree on the point that this is simply outrageous. I’d personally also describe the American lobbyists who put this report together as being asinine as well.

So, as far as I’m concerned, the USTR Special 301 Report is one of the least credible reports around as it is not only very thinly veiled lobbying, but also completely lacks any hint of credibility as well. This years report is certainly no exception to this.

Drew Wilson on Twitter: @icecube85 and Google+.

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