The big issue: 301 hypocrites

Thailand got on the United States list of the "dirty dozen" worst pirates in the explored galaxy for the ninth consecutive year. By doing that, it stayed off the list of worst hypocrites.

The US Trade Representative released the annual Special 301 Report it shamelessly claims to assemble after careful consideration of evidence and field reports that all go into a professional, high-standard, 69-page snapshot of the state of intellectual property protection. It is somewhat chaotic, with individual country write-ups arranged by continent.

"Special 301" is bureaucratese. It refers to the US Trade Act of 1974, which, in the 301st section (it's a thick law) ordered the government to report every year how the world is doing on catching up to US civilisation on the matters of copyright, trademark and patent law.

There was a time the 301 report was somewhat objective and a useful guide to judging the evolution of intellectual property protection. Thailand in the 1980s and 1990s was predictably in the second tier, never dropping to the rank of worst-of-the-worst. In those innocent days, US governments assembled methodologically dependable reports from embassies around the world, and fairly compared piracy centres with upgraded IP laws.

At some point, control of the reports slipped from those striving for accuracy. At an undefinable point after the turn of the century, political operatives got the reins. Influential figures intervened. The annual report went from written by experts to dictated by special interests.

Thailand is an example of one country's treatment under Section 301. It could equally be Egypt or Venezuela, Iran or Canada — yes Canada, that hotbed of piracy by US standards — Singapore or the Philippines. The once-useful Section 301 Report now is generally mocked. This column cannot find a single useful book or paper in the past decade that cites the Special 301 Report to make a point about digital piracy, trademarked knock-offs or counterfeit pharmaceuticals.

In 2007, the Thai (military) government legally and publicly declared pharmaceutical emergencies and applied a well-known mechanism called compulsory licensing. Repeat, this is not just allowed but specifically detailed in World Trade Organisation (WHO) regulations and practices. Big Pharma (translation: US pharmaceutical firms) hate compulsory licensing and here's why.

Thailand wanted patients with heart disease and a common form of HIV to have access to medicine. The pills were available but had to be taken daily, and cost tens of thousands of baht per month. By invoking compulsory licensing, the government Pharmaceutical Organisation could make generic drugs and sell them cheaply. Reminder: This is legal by all international laws and treaties. Big Pharma went nuts.

This occurred as the Special 301 Report was in transition from credible to risible. In April, 2008, Thailand was demoted to the Dirty Dozen list for the first time. It has stayed there ever since.

The Special 301 Report never mentions which country supports the greatest number of counterfeit drug users, who supplies the overwhelming majority of quality movies to internet pirate sites. The home of the biggest communities of internet spammers is redacted from the report.

Unlike, say, the more respected Trafficking in Persons and terrorism lists, the US does not judge itself or look in the cross-border mirror of piracy.

It is an ugly hypocrisy of 21st century diplomacy that the US has never confessed it demoted Thailand on the orders of its pharmaceutical companies. Ask them. They'll tell you it's all about the pirated disks and illegal Mickey Mouse T-shirts and that Indian-made Viagra in the tourist kiosks. Of course it is.

The truth is that in March, the USTR glad-handed the pharmacy makers while they read a four-page statement into the record summarising the perfidious, stubborn, blind, weak, discriminatory, compulsory licensing of Thai authorities nine years ago and concluding the industry "recommends that Thailand be included on the 2016 Priority Watch List", the polite term for the Dirty Dozen.

Then the Motion Picture Association of America: "Legislation enacted in Thailand in 2014 is considered inadequate." Plus all that cam-cording that is going on.

The International Intellectual Property Alliance: "[T]he nature and scope of piracy in Thailand has not improved and may have even worsened..."

The USTR itself, in its report last week: Notorious markets exist in Bangkok, offering counterfeit and pirated goods and services, and a relative lack of enforcement.

All of the above, of course, is factual, even true.

It is not, however, how Thailand made it onto the Dirty Dozen list, and why it has remained there for nine consecutive reports. It may have been three lousy medicine brands, but the men and women with the power to set US trade agendas and write treaties like the Trans-Pacific Partnership are not the forgetting or the forgiving kind.

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About the author

Writer: Alan Dawson
Position: Online Reporter / Sub-Editor