Page last updated at 09:38 GMT, Tuesday, 5 May 2009 10:38 UK

Could piracy blacklist backfire?

Internet law professor Michael Geist on how the US has angered allies with its list of the world's worst piracy offenders

Fake DVDs
US is determined to crack down on international pirates

Each April, the US releases the Special 301 Report, which examines the intellectual property laws of its main trading partners.

The release generated international headlines last week as countries such as Canada and Israel found themselves on the "Priority Watch List" of countries that the US claims are the world's worst piracy offenders.

In all, the US targeted 46 countries. In addition to the usual suspects such as China and Russia, Europe came in for heavy criticism with Finland, Norway, Spain, Italy, Greece, the Czech Republic, Hungary, and Poland all on the Watch list.

Unrecognised

The Report yielded predictable lobbyist support from groups such as the International Intellectual Property Alliance and the Motion Picture Association of America, who used the opportunity to chastise the countries on the list for failing to address their concerns.

Yet the lobby group victory may ultimately prove illusory. By wildly overstating its claims on many countries, the US has undermined its credibility and confirmed criticisms that the report lacks reliability or objective analysis.

Rather than increasing the pressure for reforms, it seems more likely to be characterised as little more than a lobbyist document that is best ignored.

For example, in previous years, Canadian officials have done little more than express disappointment with the US findings. According to government documents obtained under the Access to Information Act, the Canadian Minister of Foreign Affairs has been repeatedly advised that "Canada does not recognise the Special 301 process due to its lacking of reliable and objective analysis, and we have raised this issue regularly with the US in our bilateral discussions."

Frustration

Prof Michael Geist (Michael Geist)
The Special 301 Report does more than just anger US allies. It also calls into question their ongoing support for US international intellectual property policies
Michael Geist

Canada may move beyond behind-the-scenes discussions now that it finds itself on the Priority Watch List alongside China, Russia, and Indonesia. If so, it would likely remind the US that it is compliant with its international copyright obligations. In recent years, it responded to US pressure by becoming one of the few countries to enact anti-camcording legislation. Law enforcement has prioritised intellectual property cases and the law contains tough statutory damages provisions that are regularly used by rights holders to obtain significant judgments.

Moreover, grouping Canada together with high-piracy nations does not stand up to even mild scrutiny. The Business Software Alliance's 2008 statistics show that among the 11 other countries on this year's Priority Watch List for which data is available, the lowest rate of software piracy is 66%. By comparison, Canada stands at 32%, not remotely close to any other country on the list. In fact, Canada's software piracy rate is lower than all 46 countries named in the Special 301 report.

Similarly, 2008 data from the US Customs and Border Protection Agency on intellectual property seizures reports that Taiwan and South Korea rank fourth and fifth as sources of seized goods (China is number one), yet both were dropped this year from the Watch List. By comparison, Canada does not even appear in the rankings.

Frustration with the list is not limited to Canada. Israel was one of twenty countries to submit briefs to the US defending their laws and policies. The Israeli brief anticipated the criticism over the absence of anti-circumvention legislation, rules that provide legal protection for technological protection measures (TPMs).

It argued that "given the industry objections to TPM, lack of uniform implementation worldwide and its nascent obsolescence, non implementation of TPM can not be the basis for determining that a country, as in the words of the Trade Act of 1974 (19 USC 2242) 'denies adequate and effective protection of intellectual property rights or deny fair and equitable market access to US persons who rely on intellectual property protection.'"

Questionable findings

The US ignored the argument (and its own law) and placed Israel on the Priority Watch list.

US officials similarly dismissed Finland's and Italy's brief.

Given the US relies heavily on the IIPA report in compiling its list, the lobby group's claims were also heavily criticised by many countries including Poland, Spain, and South Korea. For example, Spain stated that the "arbitrary conclusions are drawn in this report which on numerous occasions offends Spanish Government action."

The Special 301 Report does more than just anger US allies. It also calls into question their ongoing support for US international intellectual property policies such as the negotiation of the Anti-Counterfeiting Trade Agreement and the proceedings at the World Trade Organisation against China over its copyright rules.

In targeting so many countries with questionable findings, the US has now sent a message that this support is not good enough. Copyright law may be in need of reform in many countries, but new laws should come on their terms and in their national interest, not as a result of misleading and inaccurate bully tactics.



Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.



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