In 2023, the Office of the US Trade Representative (USTR) has elected to continue conducting its Special 301 Review process virtually, with no in-person hearing, as in the years prior to 2020. In this virtual process, after stakeholders have submitted written comments to the docket (docket USTR-2022-0016), the USTR posts questions for further information or clarification for each submitter. KEI’s initial written comments to the 2023 Special 301 Review are available here.
On March 6, 2023, KEI submitted a response to those questions, KEI was asked to discuss the three step test in the Berne Convention, as it relates to fair use, and to clarity our concerns regarding proposals to impose fees on services that link to news stories on the originator’s website, as this related to the Berne Convention mandatory exception for news of the day and the permissive exception on other public affairs reporting. KEI was also asked to provide recommendations on how the USTR could reevaluate its approach to the Special 301 Report as it relates to access to medicines, in particular compulsory licensing issues.
KEI’s full 14-page response to the USTR’s questions is available here: KEI-response-USTR-questions-Special301-6March2023.
On the first two questions, of particular interest in the KEI reply is the discussion of the exceptions in the Berne Convention and in other agreements that are not subject to a three step test, and the historical evolution of the news of the day and public affairs exceptions in the Berne Convention.
The access to medicines response asked for a clear policy statement from USTR that TRIPS compliant compulsory license with adequate remuneration or compensation would be considered adequate and fair protection of intellectual property, for purposes of the Special 301 process. USTR was also asked to address the problems that occur when the exclusive rights to registration test data frustrate efforts to address abuses of intellectual property rights or other concerns about excessive pricing and access.