Progress Seen in Combating IPR-Related Trade Barriers
The Office of the U.S. Trade Representative’s annual Special 301 report on the adequacy and effectiveness of U.S. trading partners’ intellectual property rights protection and enforcement lists 36 trading partners as meriting particular concern. USTR states that this report is “a critical component of the administration’s aggressive efforts to defend Americans from harmful IP-related trade barriers.”
Priority Watch List
Trading partners on the PWL present the most significant concerns regarding insufficient IPR protection or enforcement or actions that otherwise limit market access for persons relying on IPR protection. Algeria, Argentina, Chile, China, India, Indonesia, Kuwait, Russia, Saudi Arabia, Ukraine, and Venezuela have been placed on the PWL and will be the subject of intense bilateral engagement during the coming year. USTR states that for those countries that have been on the PWL for multiple years and fail to address U.S. concerns it will take “appropriate actions, such as enforcement actions under Section 301 of the Trade Act or pursuant to World Trade Organization or other trade agreement dispute settlement procedures.”
Saudi Arabia has been moved up from the Watch List this year in response to a deterioration in IP protection for innovative pharmaceutical products as well as longstanding concerns regarding enforcement against counterfeit and pirated goods. All other listed countries were on the PWL in 2018 as well.
The following trading partners are on the WL and merit bilateral attention to address underlying IPR problems: Barbados, Bolivia, Brazil, Canada, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Greece, Guatemala, Jamaica, Lebanon, Mexico, Pakistan, Paraguay, Peru, Romania, Switzerland, Tajikistan, Thailand, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan, and Vietnam.
Colombia was moved from the PWL to the WL after taking steps to update its copyright law and improve copyright protection through legislative amendments. Canada was also upgraded from the PWL in light of its agreement to the IP provisions in the U.S.-Mexico-Canada Trade Agreement, meaningful penalties against circumvention devices and services, and progress in reforming proceedings before the Copyright Board related to tariff-setting procedures for the use of copyrighted works.
Paraguay was added to the WL for failing to meet key commitments under a 2015 agreement with the U.S., including adopting and enforcing penalties sufficient to deter future acts of infringement and establishing an interagency coordination center to provide a unified government response to IPR violations. It also remains a major transshipment point for counterfeit and pirated goods.
Tajikistan was removed from the WL in light of the concrete steps it took to improve its IP regime, including mandating ex officio authority for customs officials and issuing a presidential-level decree to facilitate the use of licensed software in government agencies.
OCRs focus on identified challenges in specific markets. Successful resolution of these issues can lead to a positive change in a trading partner’s Special 301 status outside of the typical timeframe for the annual review, while failure to address these concerns or further deterioration within the specified timeframe can lead to an adverse change in status.
In 2018 USTR conducted OCRs of Colombia, which found progress resulting in that country being moved from the PWL to the WL; and Kuwait, which determined that Kuwait made some progress in its new draft copyright law but has not yet resolved other issues. USTR also conducted an OCR of Malaysia that will be extended into 2019.
No new OCRs have been announced but USTR says such reviews may be conducted as circumstances warrant or if requested by a trading partner.
For more information on pursuing or mitigating IPR-related import restrictions, please contact trade attorney Emi Ortiz at (305) 894-1005.