Special 301 Report
The Special 301 Report is prepared annually by the
The Special 301 Report is published pursuant to
By statute, the annual Special 301 Report includes a list of "Priority Foreign Countries", that are judged to have inadequate intellectual property laws; these countries may be subject to sanctions. In addition, the report contains a "Priority Watch List" and a "Watch List", containing countries whose intellectual property regimes are deemed of concern.
Preparation
Special 301 Sub-Committee
The Special 301 Sub-Committee of the
Complaints by U.S. companies
U.S. companies and
Most countries included in the Priority Watch List and Watch List between 1996 and 2000 were requested by Pharmaceutical Research and Manufacturers of America (PhRMA) or the International Intellectual Property Alliance (IIPA).[7] According to Andres Guadamuz of the University of Edinburgh, the IIPA, which represents the U.S. media industry, urged the U.S. government to consider countries like Indonesia, Brazil, and India for inclusion in the Special 301 Watchlist in early 2010 because they either mandated or suggested the use of open-source software.[8]
NGO submissions
In 2010, NGOs such as
Designations
Priority Foreign Country
A Priority Foreign Country is the worst classification given to "foreign countries that deny "adequate and effective" protection of
On 13 March 2001, the
citing the massive amounts of unlicensed CDs sold in Europe that originate in the Ukraine. In 2011 and 2012, no countries were classified as a Priority Foreign Country; however, Paraguay was made subject to Section 306 Monitoring. In 2013, Ukraine was redesignated as a Priority Foreign Country. In 2014, the US was in talks with the WTO to designate India as a "Priority Foreign Country" especially for the pharmaceutical sector.Under the amended Section 301 of the Trade Act of 1974 the USTR must by April 30 of each year:
"identify (1) those foreign countries that (A) deny adequate and effective protection of intellectual property rights, or (B) deny fair and equitable markets access to United States persons that rely upon intellectual property protection, and (2) those foreign countries identified under paragraph (1) that are determined by the Trade Representative to be priority foreign countries".[2][10][11]
The Act defines "priority foreign countries" as:
"those foreign countries - (A) that have the most onerous or egregious acts, policies, or practices that (i) deny adequate and effective intellectual property rights, or (ii) deny fair and equitable market access to United States persons that rely upon intellectual property protection, (B) whose acts, policies, or practices described in subparagraph (A) have the greatest adverse impact (actual or potential) on the relevant United States products, and (C) that are not (i) entering into good faith negotiations, or (ii) making significant progress in bilateral or multilateral negotiations to provide adequate and effective protection of intellectual property rights".[2][11]
The
The USTR acts on the information available at the time and can identify new "priority foreign countries" on an annual basis. The Special 301 Sub-Committee conducts additional reviews throughout the year for countries that "merit additional monitoring". The Trade Act of 1974 requires that the USTR to start investigations within 30 days of a country being identified as "priority foreign country", unless the USTR concludes that such an investigation "would be detrimental to United States economic interests". Unless the "priority foreign country" is regarded as being in breach of a trade agreement, including the
Priority Watch List and Watch List Countries
Two non-statutory categories have been created in addition to the statutory category of "priority foreign country", which once identified as such needs to be investigated and if found in breach with a trade agreement is subject to possible "retaliation actions" under Section 301 of the Trade Act of 1974. "Priority Watch List" and "Watch List" countries are identified by the annual Special 301 Report. "Priority Watchlist countries" are judged by the USTR as having "serious intellectual property rights deficiencies" that require increased USTR attention. "Watch List" countries have been identified by the USTR as having "serious intellectual property rights deficiencies" but are not yet placed on the "Priority Watchlist". The USTR can move countries from one list to the other, or remove them from the lists, throughout the year.[4]
Historical designations
The International Intellectual Property Alliance keeps these statistics since 1989.
- PFC: Priority Foreign Country
- PWL: Priority Watch List
- WL: Watch list
- Monitoring: Section 306 Monitoring
- Pending: Status Pending
- *: Indicates a change in categorisation
Country | 2005[12] | 2006[13] | 2007[14] | 2008[15] | 2009[16] | 2010[17] | 2011[18] | 2012[19] | 2013[20] | 2014[21] | 2015[22] | 2016[23] | 2017[24] | 2018[25] |
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Algeria | *WL | *PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | |||
Argentina | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL |
Azerbaijan | WL | * | ||||||||||||
Bahamas
|
WL | WL | * | |||||||||||
Barbados | *WL | WL | WL | WL | WL | WL | ||||||||
Belarus | WL | WL | WL | WL | WL | WL | WL | WL | WL | * | *WL | * | ||
Belize | WL | *PWL | *WL | * | ||||||||||
Bolivia | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Brazil | PWL | PWL | *WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Brunei | *WL | WL | WL | WL | * | |||||||||
Bulgaria | WL | WL | * | *WL | WL | WL | WL | WL | ||||||
Canada | WL | WL | WL | WL | *PWL | PWL | PWL | PWL | *WL | WL | WL | WL | WL | PWL |
Chile | WL | WL | *PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL |
China | *PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | |
Colombia | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | PWL |
Costa Rica | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Croatia | WL | WL | * | |||||||||||
Czech Republic | *WL | WL | * | |||||||||||
Dominican Republic | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Ecuador | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | *PWL | *WL | WL | WL |
Egypt | PWL | PWL | PWL | *WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
European Union | WL | WL | * | |||||||||||
Finland | *WL | WL | WL | WL | WL | WL | * | |||||||
Greece | *WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | |||
Guatemala | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Hungary | WL | WL | WL | WL | WL | * | ||||||||
India | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL |
Indonesia | PWL | PWL | *WL | WL | *PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL |
Israel | PWL | PWL | PWL | PWL | PWL | *Pending | *PWL | PWL | *WL | * | ||||
Italy | WL | WL | WL | WL | WL | WL | WL | WL | WL | * | ||||
Jamaica | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Kuwait | PWL | *WL | WL | WL | WL | WL | WL | WL | WL | WL | *PWL | PWL | PWL | PWL |
Kazakhstan | WL | * | ||||||||||||
Latvia | WL | WL | * | |||||||||||
Lebanon | PWL | PWL | PWL | *WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Lithuania | WL | WL | WL | * | ||||||||||
Malaysia | WL | WL | WL | WL | WL | WL | WL | * | ||||||
Mexico | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Norway | WL | WL | WL | WL | WL | * | ||||||||
Pakistan | PWL | *WL | WL | *PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | *WL | WL | WL |
Paraguay | Monitoring | Monitoring | Monitoring | Monitoring | Monitoring | Monitoring | Monitoring | Monitoring | *WL | WL | WL | * | ||
Peru | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Philippines | PWL | *WL | WL | WL | WL | WL | WL | WL | WL | * | ||||
Poland | WL | WL | WL | WL | WL | * | ||||||||
Romania | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Russia | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL |
Saudi Arabia | WL | WL | WL | WL | WL | * | WL | |||||||
Slovakia | WL | * | ||||||||||||
South Korea | WL | WL | WL | WL | * | |||||||||
Spain | *WL | WL | WL | WL | * | |||||||||
Switzerland | *WL | WL | WL | |||||||||||
Taiwan | WL | WL | WL | WL | * | |||||||||
Tajikistan | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | * | WL | |
Thailand | WL | WL | *PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | WL |
Trinidad and Tobago | *WL | WL | WL | * | ||||||||||
Turkey | PWL | PWL | PWL | *WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Turkmenistan | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Ukraine | PFC | *PWL | PWL | *WL | WL | WL | WL | *PWL | *PFC | PFC | *PWL | PWL | PWL | PWL |
United Arab Emirates | WL | |||||||||||||
Uruguay | WL | * | ||||||||||||
Uzbekistan | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Venezuela | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL | PWL |
Vietnam | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL | WL |
Consequences
In response to countries being included on the Special 301 Report Watchlists the U.S. government may initiate dispute settlement proceedings at the
If an USTR investigation concludes that a country has violated a trade agreement
According to the
WTO dispute settlement proceedings
The USTR has used the Special 301 Reports to initiate formal dispute settlement proceedings at the
Criticism
Lobbying power
"Jamaica had no intellectual property law, but they wrote one (with our help). Similarly the Dominican Republic. I sat down with their lawyer and together we wrote their copyright law."[28]
On the other hand, according to the Electronic Frontier Foundation (EFF), concerns about foreign IP policies that are overly restrictive, such as a lack of fair use in some countries, are not included in Special 301 reports.[29]
Trade warring
Most countries included in the Priority Watch List and Watch List between 1996 and 2000 were requested by
See also
- Anti-Counterfeiting Trade Agreement (ACTA)
- Doha Development Round
- Generalized System of Preferences
- International Trade Administration
- Notorious markets
- United States International Trade Commission
- United States Commercial Service
- China–United States trade war
- South Korea–United States relations
Bibliography
- Masterson, John T. (2004). International trademarks and copyright: enforcement and management. American Bar Association. ISBN 978-1-59031-359-6.
References
- ISBN 978-1-60456-562-1.
- ^ a b c "19 U.S.C. 2242 - Identification of countries that deny adequate protection, or market access, for intellectual property rights". gpo.gov.
- ^ "1989 Special 301 Report" (PDF). USTR. May 25, 1989. Retrieved April 8, 2013.
- ^ a b c d e f g Masterson (2004), p. 20
- ^ a b c Masterson (2004), p. 21
- ^ Masterson (2004), p. 22
- ^ Sell, Susan K. (2003), Private Power, Public Law, Cambridge University Press, pp. 126–129
- ^ When using open source makes you an enemy of the state, Bobbie Johnson, guardian.co.uk, 23 February 2010.
- ^ "The US Special 301 Reports, 1989-2010". USTR. Knowledge Ecology International. Retrieved April 8, 2013.
- ^ a b Masterson (2004), p. 18
- ^ a b c d e Masterson (2004), p. 19
- ^ "2005 SPECIAL 301 REPORT" (PDF). Retrieved April 29, 2005.
- ^ "2006 SPECIAL 301 REPORT" (PDF). Retrieved December 13, 2014.
- ^ "2007 SPECIAL 301 REPORT" (PDF). Retrieved December 13, 2014.
- ^ "2008 SPECIAL 301 REPORT" (PDF). Retrieved December 13, 2014.
- ^ "2009 Special 301 Report" (PDF). Retrieved December 13, 2014.
- ^ "2010 Special 301 Report". Retrieved December 13, 2014.
- ^ "2011 Special 301 Report". Office of the United States Trade Representative. April 2011. p. 2. Archived from the original on October 17, 2011. Retrieved August 29, 2011.
- ^ "2012 Special 301 Report" (PDF). USTR. April 2013. Retrieved April 8, 2013.
- ^ "2013 Special 301 Report" (PDF). USTR. May 2013. Retrieved May 25, 2013.
- ^ "2014 Special 301 Report" (PDF). Retrieved December 13, 2014.
- ^ "2015 Special 301 Report" (PDF). Retrieved April 13, 2015.
- ^ "2016 Special 301 Report" (PDF). Retrieved April 12, 2016.
- ^ "2017 Special 301 Report" (PDF). Retrieved April 1, 2017.
- ^ "2018 Special 301 Report" (PDF).
- ^ "Copyright Industries Urge Greater Global Protection of American Jobs and Exports Threatened by Piracy" (PDF). IIPA. February 18, 2010. Retrieved April 8, 2013.
- ^ Peter Drahos, Information Feudalism, The New Press, 2002, p89
- ^ Peter Drahos, Information Feudalism, The New Press, 2002, p87
- ^ Malcolm, Jeremy (May 1, 2018). "U.S. IP Policy Spins Out of Control in the 2018 Special 301 Report". Electronic Frontier Foundation.
- ^ Sell, Susan K. (2003), Private Power, Public Law, Cambridge University Press, pp. 126–129
- ^ "Hätähuuto: Suomi luisuu takapajulaksi" (in Finnish). Kauppalehti. June 15, 2010. Retrieved April 8, 2013.
External links
- The Office of the United States Trade Representative Official website
- Special 301 Report, 2016 published on April 30, 2016
- Flynn, Sean (May 1, 2013). "What is Special 301? A Historical Primer". infojustice.org. American University Washington College of Law.
- "The US Special 301 Reports, 1989-2010". USTR. Knowledge Ecology International. (alongside supporting documents)
- Section 301 of the Trade Act