Over the last week, the Office of the U.S. Trade Representative (USTR) and the International Intellectual Property Alliance (IIPA) released reports on the current state of intellectual property (IP) protections for U.S. businesses abroad. These reports provide updated insights on foreign countries and foreign retail markets (both physical and online) that have recently caused U.S. businesses the most IP protection difficulties.
Here is a summary of the reports:
IIPA 2014 Special 301 Report Submission
On February 8th, the IIPA submitted their 2014 Special 301 Report Submission to the USTR. As one of the largest U.S. lobbying groups for the copyright-based industries, the IIPA’s submission identifies the foreign countries the IIPA believes provides the most ineffective IP legal protections for U.S. businesses. The USTR’s final Special 301 Report (released annually April-May) provides reporting to the U.S. government and the general public on the countries that, according to the Omnibus Trade and Competitiveness Act (19 U.S.C. § 2242(a)), deny “adequate and effective protection of [IP] rights” or “fair and equitable market access to United States persons that rely upon [IP] protection.”
Although the U.S. government rarely imposes trade sanctions based on the Special 301 Report, a country’s listing in the final report often impacts the U.S.’ trade relations with that country and the degree to which the U.S. government initiates trade promotional activities with the same. From both a private sector and practical standpoint, the Report also represents a review of the markets that U.S. businesses have had the most IP protection challenges.
What countries did the IIPA recommend for inclusion in the 2014 Special 301 Report?
Priority Foreign Countries. For a second year in a row, the IIPA has identified Ukraine as being a “Priority Foreign Country.” This is the least favorable designation available under the Special 301 reporting system. Specifically, it identifies that country as one with the “most onerous or egregious acts, policies, or practices” that “have the greatest adverse impact (actual or potential) on the relevant [U.S.] products” without making efforts to ameliorate their status. 19 U.S.C. § 2242(b)(1)). Ukraine’s designation as a Priority Foreign Country was based on a number of factors, most notably the absence of effective online copyright enforcement, and unfair and non-transparent royalty society collections. Shockingly, the classification was also based on reports of widespread software pirating by Ukrainian government agencies.
Priority Watch List and Watch List Countries. The IIPA’s Special 301 Report Submission lists Argentina, Chile, China, Costa Rica, India, Indonesia, Russia, Thailand and Vietnam on the “Priority Watch List,” and Belarus, Brazil, Bulgaria, Canada, Ecuador, Greece, Israel, Kazakhstan, Kuwait, Mexico, Romania, Saudi Arabia, Switzerland, Taiwan, Tajikistan, Turkey, Turkmenistan, United Arab Emirates and Uzbekistan as “Watch List” countries. Although not as a severe rating as a Priority Foreign Country, being listed as a country on the Priority Watch List or simply Watch List means that a country has potential IP protection deficiencies that require varying levels of USTR monitoring.
Newly Non-Listed Countries. It is also important to note that the IIPA has recommended removing a number of countries from the final 2014 Special 301 Report due to their improvements in IP protection. These countries include Barbados, Bolivia, Colombia, Dominican Republic, Egypt, Finland, Guatemala, Jamaica, Lebanon, Pakistan, Paraguay, Peru, Trinidad and Tobago, and Venezuela.
Out-of-Cycle Review of Notorious Markets
Also, on Wednesday, the USTR released an Out-of-Cycle Review of Notorious Markets that identified physical and online markets reported by U.S. businesses and industry organizations as being engaged in substantial IP piracy and counterfeiting. The Review includes particular social media and file transferring sites hosted abroad, including sites hosted in Antigua and Barbuda, Bulgaria, Canada, China, Czech Republic, Finland (possibly), Netherlands, Poland, Russian Federation, Spain, Sweden, Ukraine, United Kingdom and Vietnam. Specific physical markets in Argentina, China, Colombia, Ecuador, India, Indonesia, Mexico, Paraguay, Spain, Thailand and Ukraine were also deemed notorious.
What’s The Takeaway? Every foreign market has its own IP protection challenges. U.S. businesses that are exploring expansion into new markets should consider the IIPA’s Special 301 Report Submission (as well as the USTR’s Final Special 301 Report due out later this year), and the USTR’s Out-of-Cycle Review of Notorious Markets to help evaluate the IP risks associated with such markets. Doing so can help to ensure that such businesses can better protect their IP assets as they expand.
The ongoing trade dispute between the U.S. and the Caribbean island nation of Antigua and Barbuda has produced unexpected and potentially harmful consequences for U.S. copyright owners. Antigua announced last week its plans to establish a website selling media and software protected under U.S. copyright law—and will do so without obtaining permission of its copyright owners or paying any form of royalties.
Surprisingly, Antigua has the right to establish this pirating website under international law. It won a 2007 World Trade Organization (WTO) dispute settlement against the U.S. (Dispute Settlement 25 – DS 25), where the U.S.’ blocking of Antiguan online gambling sites from U.S. customers was found to be a violation of the U.S.’ General Agreement on Tariffs and Trade (GATT) commitments. Consequently, Antigua was granted the right to suspend its WTO obligations to the U.S. under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). This has allowed Antigua to legally sell pirated U.S. copyright content in amounts not exceeding $21 million annually until the U.S. removes its blockade of Antiguan gambling websites or pays compensation. As of yet, the U.S. has done neither.
To Antigua’s credit, it has yet to enforce its entitled remedies in the six years since DS 25’s ruling. According to reports, Antigua’s main goal is not to become a copyright pirate—it simply wants the U.S. to comply with DS 25. Yet, the U.S.’ continued failure to do so has made Antigua feel that it has no other choice but to open the pirating website to pressure the U.S. into compliance.
Ultimately, U.S. copyright owners will pay the price for the U.S. government’s failure to comply with DS 25. Reports are that the U.S. government will compensate U.S. copyright owners for lost royalties who are infringed from Antigua’s pirate website. However, international copyright law gives U.S. copyright owners legal protections beyond mere royalties. Qualifying U.S. copyright owners have the right under both U.S. copyright law (17 U.S.C. § 602(a)(2)) and Antiguan copyright law (2003 Copyright Act) to restrict movements of their works across borders for commercial use, namely to prevent the unauthorized trade in protected works known as parallel importation or grey goods. As controlling the availability and flow of protected content is crucial to capitalizing on foreign markets opportunities, U.S. copyright owners whose works are infringed through the Antiguan pirate website will be harmed by their inability to control the flow or distribution of their works, with no apparent recourse or compensation under international, U.S., or Antiguan law.
As any business who has foreign IP protection concerns know, protecting IP rights abroad is hard enough even with protections under international law. The developments in the U.S.-Antiguan trade dispute are harmful beyond mere infringement as they act to undermine what minimum protections U.S. copyrighted works enjoy abroad under international law, and according to commentators, they help to establish a negative precedent that could lead to similar outcomes in larger trade disputes with potentially more severe damages for U.S. copyright owners. Time will tell whether this will come true.
What do you think of the U.S.-Antiguan trade dispute? Will you be affected by it and how?