Manon Ress, Knowledge Ecology International, Comments on the IIPA oral and written submission to 2014 Special 301
March 7, 2014
Docket ID: USTR-2013-0040
In 2014, the International Intellectual Property Alliance (IIPA) submission for the Special 301 failed to propose constructive policies by the USTR regarding copyright, as regards to access to knowledge and copyright related issues, in the context of education or research.
The “IIPA Written Submission Regarding 2014 Special 301 Review: Identification of Countries Under Section 182 of the Trade Act of 1974: Request for Public Comment and Announcement of Public Hearing, 79 Fed. Reg. 420 (Jan. 3, 2014)” is signed by Steve Metalitz, Michael Schlesinger, Eric Schwartz, and Amanda Wilson Denton.
The IIPA submission is detailed and comprehensive, and I will highlight comments relating to education/campus activities such as copying for education or research.
The IIPA is a private sector coalition, formed in 1984, of trade associations that claims to represent U.S. copyright-based industries. In fact, in the context of education in particular, many of the IIPA members represent publishers that have foreign owners, such as Pearson, Random House, Reed Elsevier, etc. Members of the IIPA include Association of American Publishers, BSA | The Software Alliance, Entertainment Software Association, Independent Film & Television Alliance, Motion Picture Association of America, National Music Publishers’ Association, and Recording Industry Association of America.
On page 11 of the 16 page cover letter, in the summary, the letter states:
“The book publishing industry continues to be plagued by large scale unauthorized photocopying of academic, scientific, technical and medical books, principally on and around university campuses; sophisticated infringing offset print versions of books (essentially akin to counterfeiting); and unauthorized translations of popular books. Unauthorized commercial copying of entire textbooks by copy shops on and around university campuses is common, often undertaken on a “copy-on-demand” or “print-to-order” basis (from electronically stored digital files) to avoid stockpiling. Commercial print piracy is prevalent in many developing countries, where unauthorized operations obtain masters or copies of books and run unauthorized editions off a printing press, in English or in unauthorized translations. While many pirated copies are rife with errors or obviously of inferior quality, in some cases sophisticated scanning and printing technologies result in extremely high-quality pirate editions of books, making it difficult for users to distinguish between legitimate and pirate products.
They call for “aggressive action by law enforcement authorities. Universities and educational institutions (especially those which are state-funded or operated) should do more to promote and adopt appropriate use and copyright policies, in particular the use of legitimate books and journal publications.” And the IIPA urges the U.S. Government to ensure “that such acts of piracy are fully covered in all bilateral, regional, and multilateral engagements.”
The IIPA’s Appendix A is over 200 pages, and provides details regarding Ukraine, Argentina, Chile, China, Costa Rica, India, Indonesia, Russian Federation,Thailand, Vietnam, Belarus, Brazil, Bulgaria, Canada, Ecuador, Greece, Israel, Kazakhstan, Kuwait, Mexico, Romania, Saudi Arabia, Switzerland, Taiwan, Tajikistan, Turkey, Turkmenistan, United, Arab Emirates, Uzbekistan, Italy, Spain, Hong Kong, Malaysia, Philippines, Albania, Bosnia, Herzegovina, Estonia, Georgia, Macedonia, Malta, Moldova, and Montenegro.
Among the priority actions requested in 2014 are for example for Indonesia “Combat illegal photocopying, print piracy, and unauthorized translations, and work with rights holder groups to legitimize the use of published materials at schools and universities (p.49)”
Access to knowledge and education related problems are specifically highlighted for Indonesia, Vietnam, Canada, Mexico, Turkey, Saudi Arabia and Malaysia. None of these seven countries are new to the list. However, there is still no balanced and sustainable policy proposals but only calls for changes in some of the countries interpretation of copyright laws and more enforcement by “universities administrators… and faculty.” There is no nuanced evaluation of sensitive issues such as education and access to knowledge in general and no mentions of pricing. Some of the criticisms are even contrary to US practices in education settings — if not in US laws regarding fair use or exceptions and limitations for education.
KEI Recommendation regarding copyright and education
The IIPA has, for several years, asked the USTR to sanction countries that do not restrict access to education materials. KEI sees the education sector as distinct from other areas in copyright, and in particular, distinct from the markets for entertainment goods, or business software. Just as the USTR takes special notice of issues concerning access for health technologies, the USTR should take special notice of the need for access to information for education and research, and acknowledge the challenges facing the education, library and research sectors, particularly given the aggressive pricing found in these sectors.
KEI asks the USTR to convey a multi-stakeholder working group to discuss the practical issues regarding access to protected works in the education, library and research sectors, and try to formulate a more deliberate and defensible trade policy in this area. Also, USTR needs to identify its own information needs, in order to evaluate industry lobbying for trade sanctions. For example, are protected works that are essential for education, libraries and research institutions available and/or affordable? What types of activities are undertaken routinely in US educational settings, without the permission of copyright holders, and would the IIPA proposed sanctions set a double standard for copyright practice and/or policy? Are there strategies to expand lawful access to works that the USTR would not sanction?
KEI looks forward to discussing this issue further.
Excerpts from the IIPA submission relating to education
Book Piracy: Piracy of published materials in Indonesia, especially academic books and journals, continues to be a major concern. Publishers undertook enforcement actions against some 76 photocopy shops on and around university campuses in the Jakarta area. The enforcement campaign was relatively successful, with some 46 shops agreeing to cease their unauthorized copying and distribution activities, while 18 others voluntarily changed their business models or shut down. There remain a number of shops that refuse to cooperate, and further action will be undertaken against such shops. The Department of Education and Commission on Higher Education could do more to help right holder groups better address the problem of unauthorized photocopying. Universities should be encouraged to adopt appropriate use and copyright policies, and to better promote the use of legitimate published materials in schools and universities. Publishers note that some university professors have been encouraging students to buy only legitimate books, but this message would better serve students, professors and all university personnel, and be better received, coming from the universities’ governing bodies. (p.51-52)
Book and journal publishers continue to suffer from rampant piracy in Vietnam, in the form of illegal reprints and unauthorized photocopies. Bookshops, roadside vendors and copy shops all sell unauthorized copies of bestselling trade books, travel books and academic textbooks, and unlicensed print overruns continue to harm foreign publishers. Unauthorized translations produced by university lecturers or professors have been detected, in which the lecturers or professors append their name to the translated textbook. The English language teaching market continues to be hard hit. Much of the market (private-sector education and universities) is supplied by unauthorized reprints and adaptations. State-sector publishers (such as the Ministry of Youth and the General Publishing House of Ho Chi Minh City) also have an interest in making sure their licenses are not misused. Concerns about piracy have been raised at many levels (national, provincial and district), and local provincial authorities will conduct the occasional raid when prompted by a right holder, generally resulting in nothing more than the confiscation of goods and the imposition of a small, non-deterrent fine. Moreover, there are currently no university or government efforts to address the endemic piracy on university campuses. Universities should implement appropriate use and copyright policies that promote respect for copyright and raise awareness among personnel, faculty, and students in order to discourage infringing behavior.(p.80)
The Piracy and Infringement Situation in Canada – Offline
U.S. publishers serving the educational market with textbooks, journals and other materials are currently facing a comprehensive collapse of an important element of their Canadian market: licensing revenue for permission to copy works for educational uses. Well-established collective licensing mechanisms for administering such permissions are reeling under the combined impact of adverse judicial decisions and drastic legislative changes. The Copyright Modernization Act added “education” to the list of purposes (such as research and private study) that qualify for the fair dealing exception. Because “education” is not defined, the amendment creates an obvious risk of unpredictable impacts extending far beyond teaching in bona fide educational institutions (and far beyond materials created specifically for use by such institutions). Even before the fair dealing amendment came into force, some of the decisions in the “pentalogy” of copyright decisions issued by Canada’s Supreme Court in July 2012 posed a direct threat to the educational licensing market.7 These decisions underscored, among other things, that Canadian courts are to treat fair dealing, not as an exception, but as a “user’s right,” subject to a “large and liberal interpretation”;8 that the purposes of the putative user, not those of a commercial or non-commercial intermediary that actually makes the copy and supplies it to the user, are of primary relevance in determining whether a dealing is fair; and, that factors such as the availability of a license to make the use, and even the overall impact of widespread unlicensed use on the actual or potential markets for the work, carry much less weight in Canadian law than they do in U.S. fair use jurisprudence. Although the Alberta Education v. Access Copyright case in the Supreme Court’s pentalogy directly affected only a marginal aspect of the educational copying collective licenses — reprographic copying of a few pages per student per year of short excerpts of already purchased supplemental texts by K-12 teachers for use in class instruction — its ultimate impact has been much more destructive. (p.104)
Book piracy: For book publishers, the unauthorized photocopying of academic materials remains a concern. Universities should promote respect for copyright with the adoption of appropriate use and copyright policies, and by encouraging professors and teaching staff to promote the use of legitimate textbooks and materials to address this infringing behavior.(p.141)
Reduce illegal commercial photocopying, especially near universities, and shut down known book counterfeiters.”(p. 167)
Book Piracy Situation Remains Serious: As documented in detail in prior IIPA reports, unauthorized commercial photocopying and counterfeit books hamper the growth and further development of the legitimate market for publishers in Turkey. Local publishers report that Illegal photocopying is “out of control” on and around university campuses. Two notorious and organized pirate book counterfeiting operations conduct an estimated 90% of all piracy of foreign language books in Turkey. The Government should take actions to close them down, and to legalize use of published materials at universities. Publishers report that universities interpret Article 34 of the Copyright Law to allow free copying of textbooks, which is also harming the academic textbook market in Turkey for local and foreign publishers. Article 34 should not be interpreted in this way or should be amended so that such an interpretation is no longer viable.(p.169)
The US government must “Urge universities to adopt policies mandating the use of legitimate copies of books and other copyright materials”.(p. 194)
More Action Required to Legalize Educational Use of Published Materials: Previous IIPA reports have documented rampant unauthorized photocopying on and around university campuses causing harm to publishers in Malaysia. In 2013, MDTCC once again demonstrated good cooperation and responsiveness to publishers’ requests for raids. Unfortunately, raids have not usually resulted in prosecutions, thus minimizing any possible deterrent effect. IIPA is pleased the MCMC has been helpful in locating and identifying scanned copies of textbooks saved in electronic devices seized in raids, and has produced detailed reports to be used in court as evidence. In 2014, in addition to prosecutions to create deterrence, the Malaysian Government should mandate that universities adopt policies requiring the use of legitimate copies of books and other copyright materials by all those in the university (pp195-196)