Stop Being Poor: U.S. Piracy Watch List Hits A New Low With 2012 Report

The U.S. Trade Representative released its annual Special 301 Report yesterday, unsurprisingly including Canada on the Priority Watch list. While inclusion on the list is designed to generate embarrassment in target countries, this year’s report should elicit outrage. Not only is the report lacking in objective analysis, it targets some of the world’s poorest countries with no evidence of legal inadequacies and picks fights with any country that dare adopt a contrary view on intellectual property issues.

The inclusion of Canada on the priority watch list is so lacking in objective analysis as to completely undermine the credibility of the report. The Canadian “analysis” amounts to 173 words that hits on the usual dubious complaints (and given criticism of countries such as Chile for their notice-and-notice system, Israel for their statutory damages rules, and many countries on border enforcement, the Canadian criticism will clearly not end with the enactment of Bill C-11). By comparison, China is treated as equivalent to Canada on the priority watch list, yet garners over 4,600 words.

Earlier this year, I completed a submission with Public Knowledge to the USTR Special 301 process that examined current Canadian law as well as Bill C-11. It concluded:

the USTR should be guided by U.S. law in evaluating the laws of other countries.  Viewed from a U.S. law perspective, Canadian copyright laws provide adequate and effective protection to US IP rights owners. Limitations and exceptions in current Canadian law as well as proposed limitations and exceptions do not derogate from the effectiveness of these protections. Furthermore, Canadian authorities effectively enforce copyright laws. Consequently, rates of infringement in Canada are low and the markets for creative works are expanding. Placement of Canada on the Special 301 Watch List or Priority Watch List in the face of this evidence would be unjustified. It would only lead to undermining the legitimacy of the Special 301 process.

The USTR report also confirms the Canadian government’s view that the Special 301 exercise produces little more than a lobbying document on behalf of U.S. industry. The Canadian position, as described to a House of Commons committee in 2007 (and repeated regularly in internal government documents):

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.

This year, the International Intellectual Property Alliance recommended ten countries for inclusion on the priority watch list. The USTR included all ten. 

The problems with the report extend well beyond the inclusion of Canada. The report targets countries for expressing contrary views of intellectual property. For example, last year the Swiss government completed a major study on online copyright infringement, concluding that no new legislative action was needed. That wasn’t enough to get the country on the list, but did lead to the following comments:

Regarding Switzerland in particular, the United States has serious concerns regarding the inability of rights holders to secure legal redress involving copyright piracy over the Internet. The United States strongly encourages Switzerland to combat online piracy vigorously and to ensure that rights holders can protect their rights on the Internet.

Perhaps the most shameful inclusion in this year’s report are a series of countries whose primarily fault is being poor.  For example, the list includes Guatemala, a small country the size of Tennessee with a per capita GDP of just over $5,000. It is coming out of an economic depression that had a severe impact on rural income. The IIPA did not ask for it to be included on the Special 301 Report. In response to past pressures and the conclusion of a trade agreement, Guatemala amended its copyright laws, toughened penalties, created a special IP prosecutor, and increased IP enforcement within the government. Yet the USTR included it with the following comment:

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. 

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.


  1. Crockett says:

    The USTR’s Special 301 list, backed by the avarice and shortsightedness of the media industry, is a paid for work of fiction worthy of Hollywood. Until this sector leaves behind their bully tactics and limited cognitive reasoning, there will be no workable solutions found.

  2. JustaGuy says:

    They can take their piracy watch list and shove it up their fucking asses!

  3. List? Oh.
    So the US released some kind of list? It might be news, but why is it hyped to death everywhere?

    The headlines should read “CETA: the Great 20 Year Freeze of the Canadian Public Domain”, and this kind of stuff should be on the last page of the business section.

  4. put your money where your mouth is
    Here’s an idea: if the USTR is so worried about the level of finance developing countries are applying to IP enforcement, why don’t they donate money to the cause? If they’re unwilling to do that, then they have no right to complain. These countries are already cash-strapped and in need of more important services, what were they expecting? The USTR needs to start reviewing/editing the list after they receive it from the IIPA lobbyists – it’s making them look like narcissistic a-holes.

  5. Chris Brand says:

    I say keep it up
    Just like SOPA, the more extreme the 301 report gets, the more people realise just how ridiculous the US’s IP industry is. Every time another report like this gets released, more people start to say “you know what, if this is what it takes to enforce copyright, perhaps we just scrap copyright instead”.

    I’m still wondering how many years it will be before they put the US on the list for having too broad a “fair use” regime.

  6. Adrian I. says:

    Why do we even listen to what the US has to say anymore?
    If the media coming out of their country is any reflection on the actual state of affairs there it’s: A) A country so deeply entrenched in bi-partisanship that it’s on the brink of a civil war. B) So controlled by oligarchies that all democratic process has been destroyed. C) Since 9/11 has allowed their, once precious, civil liberties to be so eroded that they now share more in common with a military dictatorship than a republic.

    Oh gee, was that over the top? I’ll be sure to add a foot note in my report to explain my exaggerated statements.

  7. Frank Leyba says:

    U.S. citizen speaking here. Copyright is not a natural right. The U.S. Constitution allows Congress to enact laws pertaining to copyright in order to “promote the Progress of Science and useful Arts….” In other words, our Constitution makes granting such rights an option of the Federal government. The Federal government can also amended or even rescinded copyright seen fit to do so. What I don’t understand, then, is by what right do we presume to scold other countries and demand that they bend over backwards to protect rights that our government has arbitrarily awarded? This reeks of bullying and cultural imperialism.

    Our government really needs to stop coddling the big corporations, who are really the biggest group profiting from the government-created monopoly of copyright, and start protecting the rights of ordinary citizens. Unfortunately, our “representative” government will always follow the moneyed interests over the people whenever given the choice.

  8. I actually lobbied the IIPA to have Canada put on the special 301 list this year.

    It’s really a matter of pride as a Canadian. I would rather be on the side of the righteous rather than the shameful.

  9. A Radical in Chicago says:

    ‘Too far’ is an understatement…
    I agree with what most of you have commented. And yes, these measures have gone far enough to where most Americans no longer care. The only ones who do are corporate enthusiasts, scared old people, and the flat-out misinformed.

    But they don’t have to convince us, they just have to convince congress, and that seems to be where they’re succeeding at. Which would indicate why our congress has a 9% approval rating. Depressing statistic? No, just an honest one.

    Here’s a depressing statistic, in spite of a 9% overall approval rating, a majority of Americans recently polled indicated they approved of THEIR OWN congressman. Think about that statistic… which calls for quite a facepalm.

    Weep for our political system.


  10. Flappy Booger says:

    Markets for creative works are expanding
    Time 2 start protecting yur personal rights to YOUR data and information. People should be able to extract a fee 4 the collection and/or use of their personal information exactly as if this data was copyrighted/patented/trademarked, perhaps 4 the life of yourself plus 25 to 50 years just as the corporations do. Anyone else notice the buying of patents/copyrights by large multinationals to support their legal battles for market dominance. Perhaps a form of class action by groups to protect and control the use of our own personal information against multinationals like Apple or Facebook for example might even be more profitable $$! No lawyer here just pointing>>>>>

  11. Crazy Canuck for Copyright Cacophany says:

    1 Year
    All copyright and should exist for 1 year only. All profits made after that year on products/ideas based directly on the original should belong only to those people/corporations willing to market and manufacture said direct offspring products ideas, exempt of the input from the original creator. You had your year! Not only will this eliminate the frivolous lawsuits plaguing our great nation, but will drive evolution of the human species as it applies to technology and bettering our planet! Down with the Union of Copyright!

  12. Windy Tunnel says:

    Dear Flappy Booger,

    Perhaps if you are concerned about those companies using your data to make a profit, you shouldn’t be handing over your data to them for free. You are under no obligation to give them all your data for free, just as they should be under no obligation to pay you for your data. Your data is only valuable in aggregate, to advertise to you alone would be unprofitable, hence why the service is free.

    Delete your facebook and free your mind.

    Just a suggestion.

  13. Yet again…..
    So why is the world even accepting this stupid crap from a corrupted government. As indicated by others above, the US is only interested in helping less then 1% of the US population.

  14. Reframe “IP theft” as “Foreign Aid” …at least sometimes
    Like it or not, each country is really working on a different time-line than all the rest; cf some of Hans Rosling’s TED talks, eg, at least one in which he compares today’s rich, modern Sweden’s time-line to some of today’s developing nations.

    It’s crazy to expect all to be at the same point, & that applies to IP legislation & what people on the ground (some, quite literally) do vis a vis protecting or using others’ IP.

    At least -some- (so-called) IP “piracy” should be considered a cheap, if subtle, form of Foreign Aid.

    Sharing what we know about how to do things can enable other nations to improve the pace of their development.

    Instead of “IP theft” some of this usage can be considered IP gifting.

  15. Its all about money
    It seems to me that Canada and the other nations on this report have not paid enough bribe money to the lobbyists that create this report to be removed from this list. I suspect that even if the lobbyists were bribed enough to get a nation off that list, they would be added back on the moment a bribe was failed to be paid.

    In this case I agree with the Canadian government in not recognizing this report as legitimate.

  16. Anarchist Philanthropist says:

    American inteligence

    U.S. citizen speaking here. Copyright is not a natural right… ”

    But toting guns to shoot signs or laptops with any message is a natural right??

    It’s time the americans politics and belief systems started looking inward before looking outward. The american govt should have no business in Canada laws AT ALL.

    And any governing body we have that thinks otherwise should be forced to step down.

  17. Snapped Dragon says:

    1 4 all
    Is it possible that the people of a country could incorporate and all be a supercitizen, each with thier own mask to prevent id theft? =)

  18. Anonymous says:

    Fred W, sir you are either a shill for the Conservative party or a shill for the military industrial complex.

  19. davegravy says:

    I took it to mean that Fred W thinks it’s an honour to be on the 301 watch list…. that it represents the list of countries who have given the US the proverbial one finger salute, and he’s proud of it.

  20. Germany…
    …just wait until the German Pirate Party is needed to create a workable coalition in the German federal parliament… what issues do you think they want to see addressed in return for their participation? Democracy at work. US and Canadian citizens alike should take an interest in their election process.