'Ancillary' Copyright Laws, Threats to Intermediary Liability Cited in USTR Special 301 Filings

The Internet Association and other industry groups cited a range of “cross-cutting issues” they believe would weaken U.S. entities’ IP rights internationally, in filings Thursday to the Office of the U.S. Trade Representative. IA included EU member states’ adoption of “ancillary copyright laws” seen as a tax on use of snippets. Tech sector groups noted concerns about ancillary copyright laws during USTR's 2016 Special 301 proceeding (see 1603010060). Such laws also have factored into U.S. stakeholders' opposition to a European Commission copyright law revamp proposal (see 1608290062). USTR collected comments through midnight Thursday on its annual Special 301 review on the global status of IP rights enforcement.

Several groups echoed BSA|The Software Alliance and the International Intellectual Property Alliance, which asked USTR to keep China, India and Russia on the office's mid-tier Special 301 priority watch list for copyright and other IP rights violations, as expected (see 1702090071). China, India and Russia have long occupied USTR's priority watch list, which included eight other countries when USTR released its 2016 report (see 1604270049).

IA urged USTR to address “inadequate and unbalanced” IP systems and intermediary liability protections in foreign countries that “result in the denial of market access to U.S. platforms and small businesses.” Growing adoption of ancillary copyright laws could “negatively impact the ability of U.S. services to use or link to third-party content, including snippets from publicly available news publications, IA said. Meanwhile, liability safe harbors and fair use as codified in U.S. copyright law “are under threat abroad” as governments “are exerting a heavier hand of control on the internet and are subjecting online platforms to crippling liability for the actions of individual users,” IA said.

The Computer & Communications Industry Association criticized ancillary copyright laws, as expected. CCIA panned foreign countries’ use of copyright intermediary liability to impose “substantial penalties” on U.S.-based firms “for the conduct of third parties.” Although “some countries have adopted safe harbors from liability, others maintain outdated legal frameworks that could expose U.S. services to crippling liability, even when those services are in compliance with Section 512 of the Digital Millennium Copyright Act,” CCIA said in its filing.

Knowledge Ecology International meanwhile criticized Patent and Trademark Office recent studies on the size of IP-centric industries as a part of the U.S. economy, saying available statistics are misleading and are being used by U.S. industry groups “to justify intellectual property policies for patents, copyrights, and related rights that benefit rightsholders, particularly in the context of Special 301.” KEI echoed concerns about the proliferation of ancillary copyright laws, which it said “undermine the exceptions to copyright mandated in the Berne Convention and by the World Trade Organization for quotations.” KEI questioned whether “more patents with stronger rights” still favor U.S. economic interests given evidence that “other countries, including most importantly China, have dramatically increased the use of patents to block market entry by U.S. companies and to use patents to require royalty payments.”

The U.S. Chamber of Commerce’s Global Intellectual Property Center said its concerns include the global proliferation of “illicit” set-top boxes and other streaming devices “that allow users, through the use of piracy applications (apps), to stream, download, or otherwise access unauthorized content” online. GIPC also cited foreign governments’ “inappropriate” use of compulsory licensing “in a manner that is inconsistent with global rules and norms.” Offenders include Russia, which used compulsory licenses “as a bargaining tool in negotiations with suppliers in the United States and elsewhere,” GIPC said. The group also filed materials from its recent annual IP index report (see 1702080038).

The Intellectual Property Owners Association (IPO) said it's concerned the U.N.’s World Intellectual Property Organization was considering several proposals “aimed at weakening the global IP framework.” The proposals include “compulsory or concessional licensing; the elimination of IP rights for certain technologies; technology buyouts, or other international IP mechanisms; and non-assertion pledges for patents on technology used by developing countries,” IPO said. The National Association of Manufacturers was one several groups to cite “erosion” of IP rights via WIPO and other multilateral forums. NAM said such calls appear to be “similar to broader efforts across the [U.N.] system to position IP incorrectly as a barrier to public health, the development, dissemination and deployment of clean technologies, and access to entertainment and information products.”

The International AntiCounterfeiting Coalition told USTR China remains its members’ “country of greatest concern over the past year, and it remains the single-largest manufacturer and exporter of counterfeit goods” globally. Although China continued to make progress during 2016 in cracking down on IP infringement, “a number of long-standing concerns remain unaddressed; and the evolving landscape for IP protection and enforcement has resulted in new challenges, requiring a similarly evolving approach,” IACC said. India likewise “remains extremely challenging for rights-holders,” particularly because IACC members “continue to see very high levels of counterfeits in both physical and online markets,” the group said. “Effective border controls are lacking, and fair access to the market is diminished.”