Background

Enforcement measures under U.S. law or World Trade Organization rules may be taken against countries that fail to address U.S. concerns about the adequacy and effectiveness of their intellectual property rights protection and enforcement, the Office of the U.S. Trade Representative said in its most recent annual Special 301 report. USTR said it will continue to closely monitor developments in those countries that have been on the report’s priority watch list for multiple years and that over the coming weeks it will review developments against the benchmarks in the Special 301 action plans for those countries. For those that fail to address U.S. concerns, USTR said it will take appropriate actions, which could include additional tariffs or other measures under Section 301 of the 1974 Trade Act.

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, Russia, Saudi Arabia, Ukraine, and Venezuela, all of which were on the PWL in the 2019 report, remain on the PWL in the 2020 report.

Watch List

The following trading partners are on the WL and merit bilateral attention to address underlying IPR problems: Barbados, Bolivia, Brazil, Canada, Colombia, Dominican Republic, Ecuador, Egypt, Guatemala, Kuwait, Lebanon, Mexico, Pakistan, Paraguay, Peru, Romania, Thailand, Trinidad & Tobago, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan, and Vietnam. 

Kuwait was moved from the PWL to the WL following continued steps to update its copyright law and regulations and a significant increase in in-country IPR enforcement activities. Trinidad & Tobago was added to the WL for a lack of enforcement actions against operators that broadcast unauthorized cable and satellite channels, which the country pledged when it was removed from the WL in 2016.

This year’s WL reflects the removal of Costa Rica (for addressing unlicensed software use in the central government and implementing an online recordation system to improve border enforcement), Greece (for addressing the use of unlicensed software in the public sector, progress in online enforcement, and legislation to fine those possessing counterfeit products), Jamaica (for passing a new law to replace its outdated patent and industrial designs regime), Switzerland (due to long-awaited amendments to the Swiss Copyright Act), and Tajikistan.

Out-of-Cycle Reviews

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 2020 USTR plans to conduct an OCR of Saudi Arabia, focusing on its protection against unfair commercial use, as well as the unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical products.

In 2019 USTR conducted an OCR to consider the extent to which Malaysia was providing adequate and effective IPR protection and enforcement, including with respect to patents. USTR will extend this OCR in 2020 and press Malaysia to complete actions to fully resolve these concerns in the near term.

For more information on pursuing or mitigating IPR-related import restrictions, please contact customs and trade attorney Lee Sandler at (305) 894-1000.

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