USTR identifies IP-infringing nations
April 27, 2023
By Colin Mann
The Office of the United States Trade Representative (USTR) has released its 2023 Special 301 Report on the adequacy and effectiveness of US trading partners’ protection and enforcement of intellectual property (IP) rights.
“Innovation and creativity are at the heart of American competitiveness. That is why the Biden-Harris Administration’s new story on trade includes lifting up the 60 million jobs and workers in our IP-intensive industries through robust IP protection and enforcement in foreign countries,” said Ambassador Tai. “Our Administration will continue to engage with the trading partners identified in this year’s Report to empower our inventors, creators, and brands, and to demonstrate that trade can deliver tangible results across the American economy.”
This annual report details USTR’s findings of more than 100 trading partners after significant research and enhanced engagement with stakeholders. Key elements of the 2023 Special 301 Report include:
- USTR added Belarus to the Watch List, in response to Belarus passing a law that legalised unlicensed use of certain copyrighted works if the right holder is from a foreign state “committing unfriendly actions”, including sanctioning Belarus for their role in Russia’s unprovoked invasion of Ukraine. Furthermore, Belarus can keep royalties from this unlicensed usage and shift them to Belarus’s general budget, meaning that the Lukashenka regime would directly financially benefit from this unauthorised usage.
- USTR added Bulgaria to the Watch List because it did not sufficiently address deficiencies in its investigation and prosecution of online piracy cases, such as by allowing criminal investigations, expert examinations, and prosecutions to proceed with just a subset of seized infringing works. USTR will again conduct an Out-of-Cycle Review of Bulgaria in 2023 to assess whether Bulgaria makes material progress in this area.
- There remain many serious concerns regarding IP protection and enforcement in China. In 2022, China continued implementation of amendments to the Patent Law, Copyright Law, and Criminal Law, as well as previous issued measures, but the pace of reforms aimed at addressing IP issues slowed. While right holders have welcomed some positive developments, they raise concerns about the adequacy and effective implementation of these measures, as well as about long-standing issues such as technology transfer, trade secrets, bad faith trademarks, counterfeiting, online piracy, and geographical indications. Also, statements by Chinese officials that tie IP rights to Chinese market dominance still raise strong concerns. The United States continues to monitor closely China’s progress in implementing its commitments under the United States-China Economic and Trade Agreement (Phase One Agreement).
- Several trading partners continued to advance IP protection and enforcement by enacting major legal reforms. For example, Thailand’s amendments to the Copyright Act entered into force in August 2022. Vietnam’s amendments to the IP Code entered into force in January 2023. Nigeria adopted the Copyright Act, 2022 in March 2023.
- Some trading partners also joined major international IP treaties. Examples include Thailand and Tunisia acceding to the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT). Tunisia also acceded to the WIPO Performances and Phonograms Treaty (WPPT), and Chile acceded to the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (the Madrid Protocol).
- The Report continues to highlight ongoing concerns related to online piracy and broadcast piracy. Examples include concerns related to stream-ripping, illicit streaming devices and related piracy apps, cable providers distributing pirated content, and illicit Internet Protocol television (IPTV) services. Stakeholders from both unions and companies in the creative sectors have underscored the importance of copyright protection and enforcement to their livelihoods and businesses.
- USTR also continues to press trading partners to address concerns on IP protection and enforcement, including through bilateral engagement under Trade and Investment Frameworks (TIFAs) and through other mechanisms. Examples in 2022 and early 2023 include engagements with Algeria, Argentina, Bangladesh, Central Asia, Chile, China, Egypt, the European Union, Kenya, India, Indonesia, Mexico, Pakistan, the Philippines, Paraguay, Saudi Arabia, Taiwan, Thailand, and Trinidad and Tobago.
- USTR is expanding and enhancing engagement with diverse and inclusive groups of stakeholders to consider their perspectives on IP issues. For example, the United States organised workshops with stakeholders on the margins of the Asia-Pacific Economic Cooperation (APEC) meetings in 2023. A roundtable of independent creators, producers, and union workers provided diverse perspectives on the importance of copyright protection and enforcement for promoting inclusive growth in the creative industries. At a workshop on geographical indications, producers that are small or medium-sized enterprises and other stakeholders spoke about the economic benefits of preserving the use of common names and the problems they encounter when common names are not preserved.
In this year’s Report, trading partners on the Priority Watch List present the most significant concerns this year regarding insufficient IP protection or enforcement or actions that otherwise limited market access for persons relying on intellectual property protection. Seven countries are on the Priority Watch List: Argentina, Chile, China, India, Indonesia, Russia, and Venezuela. These countries will be the subject of particularly intense bilateral engagement during the coming year.
Twenty-two trading partners are on the Watch List, and merit bilateral attention to address underlying IP problems: Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Mexico, Pakistan, Paraguay, Peru, Thailand, Trinidad & Tobago, Turkey, Turkmenistan, Uzbekistan, and Vietnam.
In addition, Out-of-Cycle Reviews provide an opportunity to address and remedy such issues through heightened engagement and cooperation with trading partners and other stakeholders. USTR announced an Out-of-Cycle Review of Bulgaria.