Since 1974, the “Special 301 Report” (the Report) provides an annual review of the state of intellectual property protection and enforcement among U.S. trading partners around the world. Amended in 1988 by Congress, the Trade Act is “to provide for the development of an overall strategy to ensure adequate and effective protection of intellectual property rights and fair and equitable market access for United States persons that rely on protection of intellectual property rights (Omnibus Trade and Competitiveness Act of 1988, § 1303(a)(2), 102 Stat. 1179).
It is mostly about calling out foreign countries and exposing the laws, policies, and practices that in the eyes of industries fail to provide adequate and effective IP protection and enforcement for their Intellectual property rights.
The 2016 Report provided during the Obama Administration was 77 pages long. The term “enforcement” appeared 276 times, “patent” 170, “trademark” 89 and “copyright” 110 times. 11 countries were placed in the “priority list” and 23 in the “watch list”.
The 2020 Report is 94 pages long. The term “enforcement” appears 313 times, “patent” 168, “trademark” 128 and “copyright” 102 times. For 2020, the USTR has placed 10 countries on a “priority watch list” and 23 on a “watch list”. There are also mentions of other countries such as South Africa in the midst of reforming some of its legislation or the EU members and the ongoing implementation of the European directives.
If we are to focus on copyright and related rights, the Report highlights some usual concerns as well as some usual targeted countries.
Here is a list of these concerns and the targeted countries.:
General problems with copyright policies that “fail to incentivize creation and commercialization of content”.
Lack of enforcement actions against operators that broadcast unauthorized cable and satellite channels (unlicensed satellite channels offering pirated broadcasts)
Trinidad & Tobago (p.6) Egypt (p. 70) Turkey (p. 78) Barbados (p.79)
Online and broadcast piracy and weak enforcement
Argentina, Bulgaria, Canada, Chile, China, Colombia, Dominican, Republic, Greece, Guatemala, India, Mexico, the Netherlands, Romania, Russia, Saudi Arabia, Switzerland, Thailand, Ukraine, Vietnam, and elsewhere. (p.6)
Brazil, India, Russia, and Ukraine (p.6), Guatemala (83)
Government use of unlicensed software
Argentina, Brazil, China, Egypt, Indonesia, Kenya, Mexico, Nigeria, the Philippines, Romania, Russia, Thailand, Ukraine, and Vietnam (p.6) Turkmenistan (p.68) Uzbekistan (p.69) Turkey (p.78)
Concerns regarding protections granted to copyright holders
Concerns re online protections
Optical disc piracy lack of enforcement
China, India, Indonesia, Mexico, Peru, Ukraine, and Vietnam (p.22)
Online piracy and lack of enforcement
Argentina, Bulgaria, Canada, Chile, China, Colombia, the Dominican Republic, Greece, India, Mexico, the Netherlands, Romania, Russia, Switzerland, Thailand, Ukraine, and Vietnam (p.22) Saudi Arabia (p.54) Russia (p.56)
Lack of adequate and effective IP protection and and enforcement
Algeria (p.53) Mexico (p.84) Peru (p.86)
Music piracy with stream-ripping
Canada, Mexico, the Netherlands, Sweden, and Switzerland. (p22)
Overly broad technological protection measure exceptions
Concerns with provisions of the law about limitations and exceptions.
Kuwait (p.71) Ecuador (p.82)
Concerns re education-related exceptions
Concerns regarding Copyright Administration and Payment of Royalties (p.28) India, UAE (p.78), Ukraine
Additional “concerns” not pointing to a priority list or a watch list:
Concerns re limitations on the freedom to contract
In 2 pending bills in South Africa limit certain assignments of rights to a maximum of 25 years and provide for the government to set standard and compulsory contractual terms for contracts governing the use of works, performances, and phonograms. (p.28)
Concerns (expressed by stakeholders) regarding the European Commission implementation issues. The USTR urges “EU Member States [to] ensure full transparency in the implementation process with meaningful opportunities for stakeholders to provide input. (p.30)
Concerns regarding scope of statutory licensing
India Department for Promotion of Industry and Internal Trade (DPIIT) proposed in 2019 a draft Copyright Amendment Rules that would broaden the scope of statutory licensing to encompass not only radio and television broadcasting but also online broadcasting (p.51)
Concerns (expressed by industry) re India lack of protection and enforcement with unauthorized file sharing of video games, signal theft by cable operators, commercial-scale photocopying and unauthorized reprints of academic books, and circumvention of technological protection measures. (p.51)
Concerns regarding low penalties for copyright crimes
Romania (p.74) Turkey (p. 78)
In conclusion, regarding copyright, while it seems as there are fewer normative issues since most countries have now the laws required by the USTR on behalf of some copyright and related industries, lack of enforcement is still an ongoing concern expressed again and again in the 2019 Report.
The question whether it is truly in the US interest to target countries on behalf of foreign industries such as the publishing industries (which in certain sectors, such as education materials, are mostly European) and therefore prevent necessary access to knowledge that would promote real development remains to be answered.