Special 301 Report

Intellectual Property: Special 301 Report in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): On May 2, 2011, the Office of the U.S. Trade Representative (“USTR”) announced the issuance of the 2010 Special 301 Report (“Report”) to identify those foreign countries that deny adequate and effective protection of intellectual property rights (“IPR”) or deny fair and equitable market access to U.S. persons that rely upon intellectual property protection. USTR submits the Report annually pursuant to § 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (enacted in 1994). The 2011 Report reviewed 77 trading partners' protection and enforcement of IPR and identified 12 countries on the Priority Watch List, 29 on the Watch List, and one country under § 306 monitoring. Countries listed in these categories are found lacking with respect to IPR protection, enforcement, or market access for persons relying on intellectual property protection. see this world legal encyclopedia in relation with the year 2007 at 605–7 for additional background.

Developments

The 2011 Report included an invitation to all trading partners listed in the Report to cooperatively develop action plans to resolve IPR issues of concern. In the past, successful completion of action plans has led to trading partners' removal from the Special 301 lists. The Report identified particular problems in the listed countries, such as: Canada's failure in 2010 to enact long-awaited copyright legislation and to strengthen border enforcement; the prevalence of piracy and counterfeiting in China, and China's implementation of “indigenous innovation” and other industrial policies that discriminate against or otherwise disadvantage U.S. exports and U.S. investors; ongoing problems involving piracy over the internet, and a need for better enforcement of IPR laws in Russia. The Report also recognized positive accomplishments in a number of areas. These accomplishments included the enactment of significant IPR legislation in Mexico, the Philippines, Russia, and Spain. However, no countries were removed from the watch lists. The full text of the Report is available at (internet link) ustr.gov/webfm_send/2841. For a list of the countries identified in the 2011 Report, see USTR's press release of May 2, 2011, available at (internet link) ustr.gov/about-us/press-office/press-releases/2011/may/ustr-releases-annual-special-301-report-intellectual-p.

Separately, on February 28, 2011 USTR issued the conclusions of a Special 301 Out-of-Cycle Review of Notorious Markets, available at (internet link) ustr.gov/webfm_send/2595. The notorious market list had previously been included in the annual Special 301 Report. However, USTR concluded that it could further expose the notorious markets list by initiating a separate, dedicated request for comments, and by publishing the list separately from the Special 301 Report. The results of the review identified concerns with more than 30 Internet and physical markets that present key challenges in the struggle against piracy and counterfeiting. For further information on the Notorious Markets list, see USTR's press release of February 28, 2011 available at (internet link) ustr.gov/about-us/press-office/press-releases/2011/february/ustr-announces-results-special-301-review-notorio.

Special 301 Report in 2013

United States views on international law [1] in relation to Special 301 Report: In May 2013, the Office of the U.S. Trade Representative (“USTR”) issued the 2013 Special 301 Report (“Report”) to identify those foreign countries that deny adequate and effective protection of intellectual property rights (“IPR”) or deny fair and equitable market access to U.S. persons that rely upon intellectual property protection. USTR submits the Report annually pursuant to § 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (enacted in 1994). The 2013 Report designates Ukraine a Priority Foreign Country (“PFC”) under the Special 301 statute due to severe deterioration of enforcement in the areas of government use of pirated software and piracy over the Internet, as well as denial of fair and equitable market access through the authorization and operation of copyright collecting societies. The Report also conveys concerns about misappropriation of trade secrets in China, while recognizing incremental progress on a few of China's many other significant IPR and market access challenges. In 2013, USTR added Barbados, Bulgaria, Paraguay, and Trinidad and Tobago to the Watch List due to specific problems identified in the Report. And USTR announced that although El Salvador and Spain are not listed in the Report, USTR will conduct out-of-cycle reviews to assess progress on IPR challenges identified in this year's reviews of those countries. Canada moved off the Special 301 Priority Watch List to the Watch List in recognition of significant progress on copyright issues, while USTR continues to work with Canada to address several remaining IPR concerns. And Brunei Darussalam and Norway also were removed from the Special 301 Watch List. A total of ten countries—Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Russia, Thailand, and Venezuela—are on the Priority Watch List and 30 are on the Watch List. USTR will seek to engage intensively with these countries, as appropriate, during the coming year. See this world legal encyclopedia (in relation to issues that took place in the year 2007) at 605–7 for additional background on the watch lists.

Some Aspects of Special 301 Report

The full text of the Report is available at (link resource) ustr.gov/about-us/pressoffice/reports-and-publications/2013/2013-special-301-report. For a list of the countries identified in the 2013 Report, see USTR's press release, available at (link resource) ustr.gov/about-us/press-office/press-releases/2013/may/ustr-releases-annualspecial-301-report.

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See Also

• Trade
• Commercial Relations
• Investment
• Transportation
• Intellectual Property

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Notes

1. Special 301 Report in the Digest of United States Practice in International Law