Industry and Public Interest Groups Concerned About Special 301’s Impact on Copyright Law

Lydia Grunstra
March 29, 2010

At the first ever public hearing on the Special 301 Review on March 3, representatives from industry and public interest groups voiced concern about the USTR’s use of the Special 301 mechanism to promote stricter copyright enforcement abroad. The comments below, excerpted from oral testimony and written statements submitted by Public Knowledge and the Computer & Communications Industry Association (CCIA), highlight the importance of balancing rights protection with fair use, the danger of sanctioning countries for adopting open source licensing models or failing to implement notice & takedown policies, and the drawbacks of placing Berne-compliant nations on the Watch List alongside more serious offenders.

 

Public Knowledge

Balancing Enforcement and Fair Use

  • U.S. copyright law maintains a delicate balance between the rights of copyright owners and users. This balance has been responsible for fostering learning, creativity and innovation within the U.S., and many U.S. industries have relied on the copyright system’s limitations and exceptions to bring their products into a system market.
  •  For example, copyright’s fair use doctrine has facilitated the proliferation of devices like VCRs, TiVO and Sling Box. The presence of a similarly balanced system of limitations and exceptions is vital to provide this industry's great ability to export their products and services to foreign markets.
  •  Therefore, we urge the USTR to promote this balanced system and not to be swayed by rights holder assertions that limitations and exceptions in foreign law amount to a denial of protection for IP.
  •  During the 2009 Special 301 Review Process, rights holder representatives such as the IIPA even objected to limitations and exceptions similar to our own, for example, Israel's fair use exception or India’s personal non-commercial use exception, claiming that such exceptions, which are similar or narrower than U.S. exceptions, would violate the Berne convention and TRIPS.
  •  Such assertions are not consistent with U.S. law, and the Trade Act certainly does not mandate a reading of IP protection that is inconsistent with principals of U.S. law. If exceptions such as fair use for personal copying are permitted by the U.S., they cannot constitute a denial of protection in other countries.
  •  The corollary of the system of balance is a country's decision not to ratify or exceed to certain treaties. Many countries have legitimate and lawful concerns that provisions of treaties would not promote a balanced IP system in their country. Therefore, the USTR should not place countries on watch lists for failure to exceed to a treaty. In particular, the process should not be used to pressure countries to exceed to a possible ACTA in the future.

 

Computer & Communications Industry Association

Balancing Enforcement and Fair Use

  • Securing adequate and effective protection of intellectual property rights as set forth in 19 U.S.C. § 2242(1)(A) is an important component of protecting creativity and investment in cultural industries. In addition to their statutory definition…, the terms “adequate and effective” must be construed in the context of the Constitutional purpose of promoting the progress of science. The grant of exclusive rights, as the Supreme Court has repeatedly held, is “[n]ot primarily for the benefit of the author, but primarily for the benefit of the public.”
  •  A determination of whether a country’s laws are adequate and effective, therefore, must be holistic: ‘stronger’ is not necessarily better or more effective. An adequate and effective law is a balanced law, one that encourages the production of works of authorship that would not have been created but for the grant of rights, but which does not deter others from creating new works, even if based on or copying from prior works, and which does not deter access to information.
U.S. Industries Rely on Limitations to Copyright Law
  • [J]ust as adequate protection of rights is important to certain creative industries, clear and enforceable substantive limitations on rights are necessary to information and technology companies that depend on those limitations to the copyright laws to export information, goods, and services and create jobs here at home.
  •  A study commissioned by CCIA in 2007 following a WIPO methodology found that industries which rely in one form or another on limitations to copyright contribute $2.2 trillion in value-added to the U.S. economy [and] employ 17 million Americans.
  • [U]sing Special 301 to move the substantive boundaries around our intellectual property rights will not necessarily have the same economic benefits as using Special 301 to improve enforcement overseas. To adjust the boundaries, we may simply be shifting around benefits between U.S. companies, picking winners and losers, and find that, while we might have improved the economic benefits for rights-holding constituencies overseas, we have impaired U.S. companies that are depending on limitations and exceptions when operating overseas and are in fact increasingly being subject to liability in foreign markets for doing things that are permitted under U.S. law.
  • [C]ommitting ourselves to focusing on the enforcement of existing Berne-like norms is an activity that will likely have far greater positive impact on the U.S. economy.
Watchlisting IP-Respecting Nations Delegitimizes the Special 301 Process
  • The use of Special 301 by various interests to pursue specific policy goals unrelated to the adequate and effective protection of relevant rights delegitimizes the Special 301 process. Not all issues relating to exclusive rights necessarily pertain to adequate and effective protection of rights. The gap evident between U.S. enforcement norms and those of China, for example, should not be conflated with disagreements over whether the WIPO Internet treaties were prudent policy. If a nation were to conclude that these treaties were long on industry influence and short on evidence-based policymaking, this would not be indicative of “onerous or egregious acts, policies, or practices” relating to intellectual property rights enforcement. Unlike some other nations, U.S. copyright law has long rejected the notion of moral rights, with the exception of a few narrow circumstances. If mere policy disagreements such as this provided an adequate basis for watch-listing nations, the United States itself would be worthy of such treatment for (quite reasonably) failing to accord independent protection to an author’s rights of attribution and integrity as required by article 6bis of the Berne Convention…. Therefore, if the Special 301 process is to maintain credibility, it must focus on impediments to effectively exercising rights related to intellectual property.
  • Moreover, placing IP-respecting nations with whom we differ on policy among IP scofflaws undermines the deterrent effect of such treatment for those nations which genuinely perpetuate the “most onerous or egregious acts, policies, or practices” with respect to rights related to intellectual property. Thus, watch-listing responsible nations not only undermines the weight of the process, but also serves U.S. interests poorly.
Technological protection measures (TPMs)
  • The implementation or non-implementation of legal protection for technological measures (also, ‘technological protection measures’ or TPMs) cannot reasonably be construed to affect the assessment of whether a country provides “adequate and effective protection.” At the time Special 301 was enacted, the United States did not provide the protection for technological measures now found in Chapter 12 of Title 17. In any event, Chapter 12 is not a copyright provision; it is a sui generis provision. While TPMs that prevent copying of copyrighted works relate to copyright, the same cannot be said of access TPMs, which have been invoked by original equipment manufacturers of products such as garage door openers and printer toner cartridges to eliminate competition, and by copyright owners to control the design of consumer electronics products. There is no access right in Section 106 of the Copyright Act, and TPMs used to control access cannot be said to be an intellectual property right within the meaning of Section 2242(d)(1) or (d)(2). Whether a country provides legal protection to an access TPM cannot form the basis for an alleged lack of adequate and effective copyright rights.
  • Furthermore, the lack of a right against circumventing TPMs used to prevent copying of copyrighted works cannot form the basis for a failure to provide adequate and effective rights: TPMs are a means to an end, and it is the end that matters, not the means. If a country, such as Canada, has adequate and effective laws against copying works of authorship – as it surely does – Section 2242 must be satisfied, unless the United States itself was, prior to 1998, applying a standard to foreign nations that it did not itself uphold. Neither Canada nor any other country is required to implement any particular means of preventing copying, and most assuredly not a right once removed from copying: circumventing a technological lock. It is not the lock that is the subject matter of our copyright laws, but the work of authorship and copying that work.
  • This issue is not merely abstract: one could circumvent a technological lock not for the purpose of violating a copyright right, but rather for the purpose of engaging in permitted behavior, such as fair use, fair dealing, or for educational purposes. The USTR should not entertain the desires of certain rightsholder constituencies which seek to ban activities that are permitted under the copyright laws through the backdoor of a digital technological lock. Neither Canada nor any other country has to agree to such a wrong-headed policy; it is an improper use of the Special 301 Review to place countries on a watch list for refusing to cripple their own industries’ innovation and damage the welfare of their own consumers.
Notice and takedown
  • [A] country’s disinclination to adopt the notice and takedown regime is also not in our view a Special 301 issue. Our notice and takedown has been in many situations subject to abuse. Surveys suggested that more than a third of takedown claims are not based on valid copyright claims and more than half were actually submitted by companies targeting their competitors.
Open source licensing
  • IIPA’s submission says that various governments’ endorsement of greater open source deployment “encourages a mind set that does not give due consideration to the value of intellectual creations.” This is utterly false. The importance of copyright to open source licensing models is just as important to the importance for closed source licensing models and whether you support an open or closed source policy preference in your procurement doesn’t have anything to do with Special 301. And in fact, open source licensing models were largely pioneered by U.S. software developers. And so suggesting that something that U.S. software developers are doing as a licensing preference, which increases U.S. exports and creates U.S. jobs, somehow undermines IP norms is not only wrong, it’s probably irresponsible.

 

For a full transcript of the Special 301 Public Hearing, visit:

http://www.ustr.gov/webfm_send/1726

 

Written submissions from EFF/Public Knowledge and CCIA are available at:

http://www.eff.org/files/filenode/acta/Special%20301%20PK-EFF%20filing.pdf

http://www.ccianet.org/CCIA/files/ccLibraryFiles/Filename/000000000321/CCIA-2010-Spec301-cmts.pdf

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