The Tale of Endless Numbered Days and Some Thoughts : 2016 Special 301 Report

With a month since the public hearing to the 2016 Special 301 took place at the USTR, there is no sight of its recording and transcript. Hence, epitomizing a tale of endless numbered days for people keenly following developments at that front.

The Federal Register states, ” USTR also will post the transcript and recording of the hearing on the USTR website as soon after the hearing as possible.”  What is holding back USTR to upload an already recorded public hearing is incomprehensible to me. Jotting down the transcript also does not seem like an arduous task.


Nevertheless, I’m increasingly losing my patience and now only eyeing the final release of the 2016 Special 301 Report ( which by the way is due for release in the next 28 days or so).

Enough of ranting at this front! In an attempt to gain some leads on where the 2016 Special 301 was headed, I stumbled upon this blogpost written by Hugh Stephens, former Senior Vice President  (Public Policy for Asia – Pacific region) at Time Warner’s Hong Kong office.

In this erudite post, he argues how some of the organizations were trying to subvert the mandate of the Special 301 Process. Ignorant of this fact until couple of days back, according to Stephens, the Congress’s original intent for devising the Special 301 was to address copyright infringement even though it covered all the primary areas of IP . (Considering U.S.’s constant rhetoric on pharmaceutical patents, I’ve always been under the impression that between patents and copyright, U.S’s primary area of concern was the former. Next on my bucket list is to research on the legislative history of the Special 301.)

This was based on his analysis of the comments submitted to the USTR ahead of the 2016 Special 301. According to him, many of these comments had barely anything to do with IP protection.  He specifically points out to the comments submitted by the Computer and Communications Industry Association (CCIA) and the Internet Association (IA).

Having extensively researched on the comments submitted to the USTR for the 2016 Special 301, this is something that had even crossed my mind. Apart from CCIA and IA, comments submitted by the Computing Technology Industry Association(CompTIA) and the Alibababa Group are also not remotely related to IP protection.

CompTIA and CCIA disapproving the policy of “ancillary copyright” – which though branded as an extension of existing IP law, was inconsistent with international IP norms . As per these organizations, this served as a market access barrier being violative of international commitment to quotation. ( Ancillary copyright is better addressed as “quotation levies” or a “snippet tax“. Read page number 2 of CCIA’s Submission)

IA stressing upon the role of copyright limitations and exceptions for U.S. internet companies to access foreign markets.  Alibaba Group reported and provided supplemental information to its submissions  on ” 2015 Notorious Markets” for the 2015 Special 301 Out-of-Cycle Review of Notorious Markets .

 Following statement by Professor Sean Flynn adds weight to Stephens argument that the Congress intended the Special 301 to strengthen IPR protection and “not as a means to roll back protection by broadening exceptions and limitations.”

The Special 301 program takes its name from, and builds upon the administrative structure of, Section 301 of the Trade Act of 1974. That Act was passed at a time of large and growing trade deficits, increasing flight of manufacturing activities abroad, the rise of Japan as an industrial giant, skyrocketing foreign debt and economic crises caused by dependency on foreign oil imports, all of which fueled a mood in U.S. policy circles that was “decidedly protectionist”.

 Stephen’s argument that this supposedly  “hijacking” of the Special 301 should be a cause for alarm would perhaps resonate well with the International Intellectual Property Alliance and other D.C. based organizations who strongly propagate for stringent copyright protection. However, not being overtly protectionist, I’m of the view that the entire Special 301 process is dominated by the “rights holders“, with no voice for ” copyright – liberals“. Whether the USTR through the aegis of the Special 301 process is an appropriate forum is an altogether different question?

Time only will tell whether the USTR would deviate from its original mandate and transgress into the field of ” loosening of copyright norms“.

Source: Public Hearing (Update) : 2016 Special 301 Report

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