To the surprise of absolutely no one, the U.S. has again placed Canada on its Special 301 Priority Watch List
, implausibly claiming that Canada’s intellectual property laws are seriously deficient and on par with countries such as China and Russia. The U.S. “analysis” is short and to the point:
Canada remains on the Priority Watch List. The United States continues to urge Canada to implement its previous commitments to improve its legal framework for IPR protection and enforcement. Unfortunately, Canadian efforts in 2010 to enact long-awaited copyright legislation were unsuccessful. The United States encourages Canada to make the enactment of copyright legislation that addresses the challenges of piracy over the Internet, including by fully implementing the WIPO Internet Treaties, a priority for its new government. The United States encourages Canada to provide for deterrent-level sentences to be imposed for IPR violations, as well as to strengthen enforcement efforts, including at the border. Canada should provide its Customs officials with ex officio authority to effectively stop the transit of counterfeit and pirated products through its territory. U.S. stakeholders have also expressed strong concerns about Canada’s administrative process for reviewing the regulatory approval of pharmaceutical products, as well as limitations in Canada’s trademark regime. The United States appreciates the high level of cooperation between the Canadian and U.S. Governments, and looks forward to continuing engagement on these important issues.
So Canada – a country with intellectual property protections that have been ranked ahead of the U.S., has many copyright rules more restrictive than the U.S., and digital markets growing faster than the U.S. – is once again placed by the U.S. on the watch list while other countries with similar laws are not.
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The USTR released its Special 301 report
on Monday with the unsurprising inclusion of Canada on the Priority Watch List. The list is designed to bully countries around the world to cave to U.S. demands on intellectual property reform and enforcement. In fact, this year’s report indicates that the U.S. is willing to make everyone the proverbial offer they can’t refuse:
USTR is announcing that it invites any trading partner appearing on the Special 301 Priority Watch List or Watch List to work with the United States to develop a mutually agreed action plan designed to lead to that trading partner’s removal from the relevant list. Agreement on such a plan will not by itself change a trading partner’s status in the Special 301 Report.
This year’s list includes Canada along with several Western European countries (Finland, Italy, Greece, Spain, and Norway) and dozens of other countries around the world. The total population of the 40 countries on the list exceeds 4.3 billion. Many of these are poor countries with per person GDPs of a few thousand dollars per year, yet the primary complaint tends to revolve around patent protection and approval for pharmaceutical drugs.
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The USTR has launched a public request for comments on the Anti-Counterfeiting Trade Agreement. There has been no indication from Canadian officials about possible meetings or consultations.
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Last weekend, I posted
that I suspected the KIPR tag on U.S. diplomatic cables being released by Wikileaks represented cables involving intellectual property issues. Sure enough, the first batch of KIPR cables have been released in Spain, confirming U.S. pressure on that country to reform its copyright laws. The release – which come from El Pais
– has generated considerable commentary with BoingBoing proclaiming
that it reveals that the U.S. wrote Spain’s proposed copyright law. That headline led others to speculate what the remaining KIPR cables might reveal, particularly the 65 Canadian ones (there are also 84 WIPO tagged cables and nearly 2,500 KIPR tagged cables overall). There has been one release
on copyright law in France, with officials discussing U.S. industry support for its three-strikes approach.
While I am very interested in seeing the Canadian KIPR cables, I’d be surprised if the cables reveal anything new. The fact that the U.S. is actively lobbying in foreign countries on intellectual property issues (particularly copyright) is not a secret, it’s a open strategy. The cables don’t really show that the U.S. wrote Spain’s copyright law, because they didn’t need to. Years of relentless lobbying pressure at the highest levels of government make it as clear as possible what the U.S. is looking for (plus they release the annual Special 301 report just in case anyone is still confused) so that when a government decides to reform its laws it invariably takes the U.S. position into account.
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KEI reports on recent discussions with U.S. government officials which suggest that the USTR believes it can ignore the plain language of the Anti-Counterfeiting Trade Agreement by relying on Article 1.2, which provides that “Each Party shall be free to determine the appropriate method of implementing the provisions of this […]
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