The Office of the United States Trade Representative has just released its 2022 Special 301 Report detailing the state of intellectual property protection and enforcement by trading partners around the world.
The annual report aims to spotlight laws, policies, and practices of foreign countries that fail to meet standards set by the United States. This public document seeks to inform the public and trading partners and hopes to be a “positive catalyst” for change.
The Special 301 Report places the most problematic countries on its ‘Priority Watch List’. This year Argentina, Chile, China, India, Indonesia, Russia, and Venezuela meet the criteria.
Almost two dozen others are featured in the standard ‘Watch List’ – Algeria, Barbados. Bolivia, Brazil, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Mexico, Pakistan, Paraguay, Peru, Thailand, Trinidad and Tobago, Turkey, Turkmenistan, Uzbekistan, and Vietnam.
Ukraine was destined to appear on either the Priority or standard Watch List, but its Special 301 review has been suspended due to the ongoing Russian invasion.
The 88-page report covers a broad range of intellectual property rights issues. In our summary, we’ll focus on matters related to online piracy and enforcement (or lack thereof).
USTR: Broadband Penetration is Good for Trade But Helps Pirates
There can be little doubt that increased availability of fast broadband connections is a boon for global trade. Legal content distribution platforms rely on excellent connectivity to grow their businesses, spreading everything from movies, television, and music, to electronic books and beyond. However, the US government warns that greater connectivity for legal content benefits pirates too.
“Online piracy is the most challenging copyright enforcement issue in many foreign markets. For example, during the review period, countries such as Argentina, Bulgaria, Canada, Chile, China, Colombia, the Dominican Republic, India, Mexico, the Netherlands, Romania, Russia, Switzerland, Thailand, Ukraine, and Vietnam had high levels of online piracy and lacked effective enforcement,” the report reads.
Pirate IPTV Services Are a Global Problem
First mentioned in the USTR’s 2017 ‘Notorious Markets’ report, piracy-configured set-top boxes (‘Illicit Streaming Devices’) are still considered a major threat to many US businesses including movie/TV show producers, sports leagues, and legitimate streaming, on-demand, and over-the-top media service providers. ISDs are often supplied with free infringing apps that aggregate content but can also be used alongside subscriptions to pirate IPTV services.
The USTR says that these for-profit entities are supported by complex technical infrastructures and along with ISDs, cause high levels of piracy globally. In particular, the report calls out “notable” levels of infringement in Argentina, Brazil, Canada, Chile, China, Guatemala, Hong Kong, India, Indonesia, Iraq, Mexico, Singapore, Switzerland, Taiwan, Thailand, and Vietnam.
The USTR says that the use of illicit streaming devices is excessively high in Brazil, and the number of criminal prosecutions has been insufficient to deal with the problem. Countries such as Algeria, Colombia and Guatemala are signaled as pirate IPTV problem areas but others receive more detailed criticism.
China is described as a “leading source and exporter of systems that facilitate copyright piracy”. The USTR calls for “sustained action” against ISDs, websites and online platforms containing or facilitating access to unlicensed content, and piracy apps that facilitate access to such websites.
The US welcomes new amendments to Chinese law, including protections against the circumvention of technological protection measures, but notes that criminal liability for the manufacture, distribution, and exportation of circumvention devices needs clarification.
The disruption of COVID-19 saw some movies premiering in theaters and on streaming services simultaneously. Within hours, pirate copies were available too, mostly in very high quality, having been ‘ripped’ from these platforms. This week, John Fithian, head of the National Association of Theatre Owners, declared the simultaneous release strategy “dead as a serious business model” and said piracy was to blame.
This means that the unauthorized recording of movies in cinemas is set to bounce back. The USTR is aware of the threat and names several countries that need to step up their anti-camming games.
“Stakeholders continue to report serious concerns regarding unauthorized camcords. For example, in Russia, the number of sourced camcords prior to the COVID-19 pandemic was reportedly 48 in 2018 and 45 in 2019. While COVID-19-related cinema closures suppressed this activity during the pandemic, camcords have reportedly reappeared as theaters have started to re-open,” the Special 301 Report reads.
In 2019, India proposed draft legislation to criminalize unauthorized camcording but has not passed into law. China is also cited as a source of cammed movies but several criminal convictions for unauthorized camcording in 2020, the country still lacks a specific criminal law to address the issue.
Argentina, Brazil, Ecuador, India, Peru, and Russia “do not effectively criminalize unauthorized camcording,” so should follow the examples set by Canada, Japan, the Philippines, and Ukraine, the USTR suggests.
“Countries also need to update legal frameworks to effectively deter unauthorized camcording and keep up with changing practices,” the report adds. “For example, the requirement in some countries that a law enforcement officer must observe a person camcording and then prove that the person is circulating the unlawfully recorded movie before intervening often precludes effective enforcement.”
Other Types of Piracy
The USTR says that virtually every country in its Special 301 Report has additional problems with online piracy and related infringement. The rebroadcasting of live sports and the unauthorized cloning of cloud-based entertainment software allow users to access pirated content online, while game copiers and mod chips allow users to play pirated games on physical consoles.
The report also highlights the problem of “stream-ripping software” which can be used to create infringing copies of copyrighted works by accessing licensed streaming sites.
“Stream-ripping is now a dominant method of music piracy, causing substantial economic harm to music creators and undermining legitimate online services. During the review period, stream-ripping was reportedly popular in countries such as Canada, India, Mexico, Russia, Switzerland, and Ukraine.”
In reality, stream-ripping is popular everywhere and at least in volume terms, the United States could easily qualify for inclusion in its own list, despite having access to some of the tightest laws and enforcement tools anywhere on the planet.
The 2022 Special 301 Report can be found here (pdf)