The U.S. Trade Representative released its Special 301 report today, in which it casts judgement on the intellectual property laws of dozens of countries around the world. To the surprise of no one, Canada finds itself playing the role of Bill Murray in Groundhog Day as it once again is target. In fact, this year the U.S. aims to increase the pressure by elevating Canada to the Priority Watch List (a more sinister designation than the previous Watch List), implausibly claiming that Canada sits alongside countries like Russia and China with its intellectual property laws.
The move is not unexpected, given recent comments from Vice President Joe Biden and U.S. Congressional panels as well as the demands from U.S. lobby groups. Those same groups will now dust off their press releases that lament the "embarrassment" of being included on the list (never mind that countries that represent more than 70 percent of the world's population are on the list) and the failure to introduce U.S.-style reforms (never mind that Canada enacted anti-camcording laws in 2007, introduced C-61 last year, is an original negotiating partner in the ACTA negotiations, joined the U.S. as a third party in the WTO copyright complaint against China, etc.).
Hopefully, the Canadian officials will similarly dust off their advice to the Minister, which for the past few years has stated (as obtained under Access to Information):
The Government is disappointed with the United States' decision to include Canada in its [year here] Special 301 "Watch List." Canada does not recognize the Special 301 process due to its lacking of reliable and objective analysis, and we have raised this issue regularly with the U.S. in our bilateral discussions."
Those same sentiments were expressed by an official at the Department of Foreign Affairs to a House of Commons committee in 2007:
In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.
While this demonstrates that Canadian officials recognize the Special 301 process for what it is (and isn't), it may well be time to take a more aggressive approach. This year, twenty countries responded to the USTR process, challenging the claims of lobby groups like the IIPA and their possible inclusion on the list. Some focused on their IP reform efforts, while others challenged the legality of reaching a conclusion of non-compliance. The strongest came from Israel, which in discussing the view that the absence of anti-circumvention legislation could be the basis for inclusion on the list, stated:
given the industry objections to TPM, it 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 U.S. persons who rely on intellectual property protection.
I think Israel is on the right track here (though it too was elevated to the Priority Watch List). It is not enough to say that the Special 301 process is unreliable and lacks objectivity. Canadian officials must counter claims that Canada – which is compliant with its international obligations and has been a major partner for the U.S. on international IP matters – should be included at all.