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25 February 2010, 17:43

US copyright lobby claims free software undermines respect for intellectual property

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As part of a public consultation exercise, US industry association the International Intellectual Property Alliance (IIPA), whose members include lobbying organisations such as the Business Software Alliance, the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), has submitted recommendations to the US trade representative for revising the US' blacklist of copyright sinners. The 498 page submission lists a number of countries in which, in the opinion of the IIPA, intellectual property rights are poorly enforceable or inadequately protected. The submission expressly calls for a number of countries to be placed under special observation – in part in response to their support for open source software.

The US government issues an annual 'Special 301' report which highlights countries which have either inadequate legislation, or no legislation, for protecting and enforcing copyright and patent rights. The list, which can lead to trade sanctions and is intended to exert pressure on the respective governments, is regularly headed by China and Russia. They are accused of being in part responsible for the increase in internet piracy and of taking too little action against pirated material and fake products. Last year, US trade representative Ron Kirk placed Canada on the Priority Watch List for the first time, for not yet having implemented the World Intellectual Property Organisation's (WIPO) 1996 treaties on protection of copyright on the web.

If the IIPA has its way, countries such as Brazil, India, Indonesia, the Philippines, Thailand and Vietnam would also be blacklisted in this year's 301 report. What's interesting about this is the justification given for doing so, as elucidated by Canadian civil rights organisation Digital Copyright Canada and UK law lecturer Andres Guadamuz. It is not about indications of support for IP-related piracy – rather the organisation accuses the governments of these countries of promoting the use of open source software and in some cases of prescribing its use in government agencies.

The IIPA'S assessmentPDF of the Indonesian government's simple recommendation on the use of open source software is particularly telling. It believes that this weakens the software industry and "undermines its long-term competitiveness" by creating an "artificial preference for companies" offering open source software and related services, as well as denying "many legitimate companies access to the government market." "Rather than fostering a system that will allow users to benefit from the best solution available in the market," it continues, "it encourages a mindset that does not give due consideration to the value to intellectual creations." Such an approach "fails to build respect for intellectual property rights."

In its submission to the US trade representative, the Free Software Foundation (FSF) complains that the watchlist is used to push through the WIPO's internet treaties and the clauses on legal protection of digital rights management (DRM) systems contained in these treaties. According to the FSF, laws such as the US' Digital Millennium Copyright Act (DMCA) have turned out to have the effect of impeding the development of free software and of having a negative impact on trade. It thinks that Washington needs to stand up for the free market in accord with the democratic principles of the US constitution and stop using the 301 report as a "negotiating stick".

(Stefan Krempl)


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