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Working in the International Arena: The Special 301 Process

The following is a guest post by Emily Lanza, Counsel for Policy & International Affairs.

Staff attorneys in the Office of Policy and International Affairs (PIA) here at the U.S. Copyright Office often work with our colleagues in other agencies, providing expert advice on domestic and international copyright issues. Since the Copyright Office was created in 1897, our advice has been valuable to the executive and judicial branches, so much so that Congress codified this function into federal law.

Trade is one area where copyright concerns overlap with the interests and work of other agencies. For example, each year the administration prepares the Special 301 Report to Congress on intellectual property protection abroad. Under a trade law passed in 1988, the United States Trade Representative (USTR) is required to monitor U.S. trading partners by identifying to Congress “those foreign countries that deny adequate and effective protection of intellectual property rights, or deny fair and equitable market access to United States persons that rely upon intellectual property protection.”

2017 Special 301 Report

2017 Special 301 Report

This year was my first participating in the Special 301 process. While every member of my office has the responsibility to review their assigned countries, I, along with another PIA attorney, represented the Copyright Office on the Special 301 interagency subcommittee, which comprises more than a dozen agencies and is chaired by USTR. In preparing the report this year, the subcommittee reviewed input of more than 100 trading partners from varied stakeholders as well as our embassies abroad. This input included public comments from interested parties and witness testimony from trading partners and stakeholders during the public hearing.

USTR published the 2017 Special 301 Report on April 28, 2017. Eleven trading partners were placed on the Priority Watch List and twenty on the Watch List. The 2017 report noted improvements in several countries, including Honduras, Kuwait, and Malaysia, and highlighted ongoing concerns in China, India, and Mexico, among others. Each listed country has its own specific write-up within the report. Some countries have challenges across the intellectual property spectrum (for example copyright, patent, trademark, and trade secrets), while other countries may have more specific problems affecting only one or two industry sectors.

Two watch lists from the 2017 Special 301 Report

Two watch lists from the 2017 Special 301 Report

The work of the subcommittee and its constituent agencies, however, does not end with the April release of the 2017 report. Throughout the year, we in PIA continue to work with our interagency colleagues to engage with countries discussed in the report in finding ways to improve intellectual property protection worldwide. Indeed, there are several current proceedings open under the Special 301 rubric: (1) the annual out-of-cycle review of “notorious markets,” which results in a list identifying select online and physical marketplaces that reportedly engage in or facilitate substantial copyright piracy and trademark counterfeiting (initial comments due October 2 and rebuttal comments due October 16); (2) an out-of-cycle review of the IPR practices in Thailand (public comments due October 20); and an out-of-cycle review of the IPR practices in Colombia (public comments also due October 20).

With so many different players and factors involved in the Special 301 process, I learned first-hand of the challenges in reviewing competing interests and the importance of working together to find solutions. While the prep work seemed daunting at times, I appreciated having an extensive record of information to support our work. I look forward to working with my Copyright Office and interagency colleagues on additional collaborative projects addressing domestic and international copyright issues.

3 Comments

  1. John Q.
    October 2, 2017 at 1:54 pm

    So many “players” sounds about right. One participant consistently and completely missing from this process is the public and its interest. Rather, the USTR and Congress are told that the most draconian, extreme measures demanded by the manipulative, wealthy megacorps of the entertainment industry (and pharmaceutical, oil & gas, etc.) just naturally trickle down into the public’s interest, so everyone should just go along with all their proposals without question.

    Countries who dare to challenge the U.S. IP lobby’s bullying in the smallest ways—such as by only giving the entertainment industry 99% of what it demands, by protecting free speech, by acknowledging fair use, by providing for the disabled, libraries and personal use—get added to the List to be threatened with trade restrictions for “not doing enough” about piracy. Some of our closest friends are on there. Shameful!

    If the USTR wants credibility, it needs to start backing off of the notion that the public, and countries who maintain some semblance of balance between corporate and public interests, are the enemy.

  2. AC
    October 6, 2017 at 3:28 pm

    Wow. You seem very angry. Perhaps you should see someone about that.

    As for the substance of your comment, it is YOU who set up copyright issues as “us versus them.” The very foundation of copyright is that the public benefits from the creation and distribution of creative works that copyright supports.

    Anyone may submit comments as part of the Special 301 process, and if you look at the actual reports you will see that they hew carefully to the commitments made by other nations in treaties and other agreements. If some of our “friends” are on that list, the shame is theirs.

    I’m not sure why you think railing at “wealthy mega corps” (the oil and gas industry??? – what has that got to do with copyright???), but if you’re looking for a sector with really rich companies that change the law to protect their own interests at the expense of the public, you left one out…

  3. Leticia Suarez Gandulla
    October 12, 2017 at 10:20 am

    Certainly I am very grateful for this article, and commerce is certainly an area where copyright concerns conflict with both group and institutional interests and personal interests, where they are not always coincident and sometimes delimit them. The adequate and effective protection of intellectual property rights, unrestricted access to the information inherent in this subject, as well as fair and equitable access to intellectual property, is a constant concern for both governments and world personalities and trade experts. the markets. It is clear that natural persons and institutions with recognized legal personality will always require a certain degree of protection over intellectual property.
    Who wrote this post is a Cuban interested in these topics, I am an expert in social studies of science and technology, my blog http://cubaantemisojos.wordpress.com addresses social issues of interest. I declare myself interested in these topics and a faithful follower of the most updated information on these topics.

    Agradezco enormemente este atículo, ciertamente el comercio es un terreno en el que las preocupaciones por el derecho de autor entran en conflicto con los intereses tanto grupales e institucionales como personales, donde los mismos no siempre son coincidentes y resulta en ocasiones deslindarlos. Constituye una preocupación constante, tanto para los estados y gobiernos como para personalidades mundiales y expertos del comercio la protección adecuada y efectiva de los derechos de propiedad intelectual, el acceso irrestricto a la información inherente a este tema, así como el acceso justo y equitativo a los mercados. Resulta evidente que las personas naturales e instituciones con personalidad jurídica reconocida requerirán siempre de un determinado grado de protección sobre la propiedad intelectual.
    Quien escribe este post es un cubano interesado en estos temas, soy experto en estudios sociales de la ciencia y la tecnología, mi blog http://cubaantemisojos.wordpress.com aborda temas sociales de interés. Me declaro interesado en estas temáticas y un fiel seguidor de la más actualizaa información sobre estos temas.

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