Business Software Alliance Press Release.
Re: Annual Special 301 Recommendations to USTR.
Date: February 18, 2000.
Source: BSA.

Washington, DC (18 February 2000) -- Washington, D.C. (Feb. 18) – America’s creative industries today recommended that 55 countries be placed on the United States Government’s “Special 301” list, which identifies nations that do not live up to international obligations for protecting intellectual property rights.

As part of is annual filing with the International Intellectual Property Alliance, the Business Software Alliance (BSA) raised strong objections to the inadequate level of software copyright protection in nations such as the Phillipines, Israel, the Czech Republic, and the Dominican Republic. Specifically, BSA highlighted significant failures by these and other countries to live up to their obligations under the World Trade Organization’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), which became effective for these developing countries and others on January 1st of this year.

“The widespread proliferation of software piracy continues to plague the industry around the globe, resulting in lost jobs and opportunities in the global marketplace and in individual countries as well,” said Robert Holleyman, President and CEO of BSA. “Certainly, the most effective tool available to stem the growth of piracy is the TRIPs agreement.”

PHILIPPINES

BSA and other creative industries recommend that the Philippines be elevated to the Priority Watch List for serious failures to comply with its TRIPs obligations as well as recent legislation eroding the rights of copyright owners in educational settings. Philippine law does not provide procedures for copyright owners to obtain ex parte searches in civil cases, as required by TRIPS. And disturbingly, Philippine law requires that police seeking a search warrant swear to personal knowledge of the crime being committed, which is nearly impossible to obtain in software piracy cases, where the first- hand knowledge tends to come from private informants (such as an employee of the company in question). Furthermore, the Philippines has moved to seriously erode the rights of copyright owners by exempting a broad range of “educational” institutions from their responsibilities under copyright law, in violation of the country’s international commitments.

ISRAEL

BSA and IIPA members recommend that Israel be designated a Priority Foreign Country under Special 301. Israel has failed to comply with its obligations under the WTO TRIPs Agreement, even though Israel availed itself of an additional five-year transition period under WTO guidelines. Israeli law does not expressly criminalize end user piracy, in violation of the TRIPS Agreement, making software copyright enforcement almost impossible. In addition, the process for obtaining civil ex parte searches (known as “Anton Pillar” orders under Israeli law) is cumbersome and very expensive, making the pursuit of civil cases likewise extremely difficult. Criminal enforcement against retail piracy and counterfeiting has also been historically weak in Israel, despite the existence of a strong national industry.

CZECH REPUBLIC

BSA and other IIPA members recommend elevating the Czech Republic to the Priority Watch List based on serious deficiencies in the country’s legal and enforcement regime. The Czech Republic has yet to implement its TRIPs obligations, one of the most important of which is the right of copyright owners to obtain surprise “ex parte” searches in civil cases involving software piracy. These “ex parte” searches are critical to ensuring that evidence of software piracy can be obtained and preserved, yet Czech law contains obscure provisions that do not specifically permit such critical searches. The Czech Republic’s enforcement regime is likewise incompliant with TRIPs, as judicial cases languish and police fail to crack down consistently on software pirates.

DOMINICAN REPUBLIC

BSA and other IIPA members recommend that the Dominion Republic remain on the Priority Watch List, due to the virtual lack of copyright enforcement. Dominican law does not expressly protect software as a “literary work,” a key principle of international copyright law. Also absent from Dominican law are procedures for copyright owners to obtain and conduct civil ex parte searches, as required by TRIPs. The Dominican Republic, like the Czech Republic, also suffers from an extremely weak enforcement regime.

In addition, BSA and other IIPA members raised serious concerns about pending legislation in Australia that would implement the World Intellectual Property Organization’s (WIPO) Copyright Treaties in a manner inconsistent with the treaties’ intent, hence, the filing recommends that Australia remain on the Special 301 Watch List. Last year, Australia adopted a law permitting the decompilation of software in instances that go far beyond limited international norms. In addition, flawed draft legislation under consideration in Australia to ratify the WIPO Copyright Treaties could, paradoxically, create a massive loophole for the trafficking of pirated creative goods on the Internet.

“Our Special 301 recommendations document an unfortunate, yet compelling story about inadequate copyright protection for creative works existing around the world,” Holleyman explained. “Opportunities in the new economy will not expand to their fullest potential without strong copyright protections. Efforts to ensure adherence to the TRIPs agreement is the cornerstone of this year’s filing,” he said. “TRIPs compliance will ensure that WTO members enact strong copyright laws, establish effective enforcement provisions and just as important, actually apply those laws in practice.”

# # # BSA is the voice of the world's leading software developers before governments and with consumers in the international marketplace. Its members represent the fastest growing industry in the world. BSA educates computer users on software copyrights; advocates public policy that fosters innovation and expands trade opportunities; and fights software piracy. BSA members include Adobe, Apple Computer, Autodesk, Bentley Systems, Compaq, Corel Corporation, IBM, Intel, Intuit, Lotus Development, Macromedia, Microsoft, Network Associates, Novell, Sybase, Symantec and Walker Digital. BSA websites: www.bsa.org; www.nopiracy.com.