My Twitter feed has been abuzz over the past week about how the U.S. “threatened” Spain with placement on the Special 301 Priority Watch List in order to get Spain to pass an unpopular law clamping down on unauthorized file sharing (I may be a holdout on this, but I try to save the word “piracy” for actions involving actions on the high seas that carry the potential for violence and murder). Representative reporting, from Ars Technica:
As El País reported yesterday, the US ambassador sent a letter to Spanish government officials on December 12, 2011, in which Spain was blasted for not getting the job done. The US could move to put Spain on its Section 301 “priority” watch list, a more severe designation which could carry the threat of trade penalties.
Within weeks, the new Spanish government came through.
It’s certainly a narrative that plays into easy pre-existing prejudices: the bullying United States threatens a smaller country, forcing it to implement wildly inappropriate policies against its will. After all, that’s just how they are, isn’t it?
Sorry to disagree, but I don’t see this as a case of bullying. It’s actually much more interesting, and nuanced, than that.
Let’s start with the “threat.” As threats go, saying you’ll put a country on the Special 301 Priority Watch List is right up there with: “Stop thief, or I’ll say stop again!” The Special 301 lists, especially in the World Trade Organization era, are largely a PR exercise, a means of reiterating annually to foreign governments the U.S. intellectual-property position.
But the Special 301 Priority Watch List carries with it the threat of trade sanctions, right? Here, Wikipedia is your friend:
If the US investigation concludes that a country has violated a trade agreement Section 301 of the Trade Act of 1974 allows the US Government to impose unilateral trade sanctions if the country is not member of the World Trade Organisation (WTO) or any other trade agreement establishing dispute settlement provisions, such as free trade agreements, which are relevant to the alleged violation (emphasis added).
So where’s the threat? The United States can threaten to sue Spain at the WTO, but only if Spain is not in compliance with WTO rules, and on this issue I’m pretty sure they are. And a quick perusal of the current Watch Lists shows not only how many countries are on it, but also that it’s more about encouraging cooperation than hitting countries with sanctions.
I’m also not losing much sleep over the fact that the U.S. Ambassador to Spain is sending critical letters to the Spanish government. This is what countries and ambassadors do: they try to influence other countries’ policies. Of course, it’s a separate issue when politicians deny that a bill’s provisions (on DRM, say) are not the result of another government’s influence when they patently are, but that’s a separate issue. In any case, we shouldn’t mistake influence for power: there’s a difference between whispering in someone’s ear and holding a gun to their head. Special 301, particularly in the case of Spain, is no gun.
So if the threat is toothless, and the U.S. Ambassador is just doing what ambassadors do, then what happened in Spain? I think the key to understanding the outcome is to remember that domestic politics count, and that not just American media companies want stronger worldwide copyright laws. As the Ars Technica report points out, the Spanish Culture Minister, Ángeles González-Sinde Reig, was a former head of the Academia de las Artes y las Ciencias Cinematográficas de España (Spanish Academy of Cinematographic Arts & Sciences). From what I can tell, she agreed with the U.S. copyright position, so there is some support for stronger copyright within key Spanish constituencies.
It’s also not unheard of for new governments to pass unpopular legislation early in a term, with the expectation that any opposition will blow itself out within a few years. My best guess is that the new government either believes in the new law or saw it as a cheap way to gain some points in Washington – which is not the same as caving in to a bully’s threat.
All this, of course, doesn’t change the underlying assessment of the bill itself. As I’ve written before, there are very good reasons to be concerned about stronger copyright laws.
But how change happens matters. If Spain’s new law was the result of international power politics, then reversing the law, or implementing other laws the United States won’t like, invites retaliation; the potential for reform would be pretty small.
If, however, Spain’s copyright laws aren’t the result of hegemonic dominance by the United States but of the particular strengths and weaknesses of various groups (including the United States) within the Spanish political system, it suggests that domestic Spanish groups that don’t like the current law can change it without declaring war on the United States.
I think that Spain’s case fits within the second category. The Big Bad United States versus smaller countries may be a compelling narrative, but in this case it’s not terribly accurate. That’s good news for those interested in long-term copyright reform.