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The U.S Trade Representative will announce the 2021 Special 301 Review tomorrow. This is the annual review required by the Trade Act which identifies countries that “deny adequate and effective protection of intellectual property (IP) rights or deny fair and equitable market access to U.S. persons who rely on IP protection.” The review is based partially on comments received from “interested parties” to the interagency Special 301 Subcommittee of the Trade Policy Staff Committee. Industry groups and firms usually submit the majority of comments, in which they ask to have specific countries included in the report for alleged inadequacies of IPR protection or enforcement. Civil society groups regularly comment as well, and the comment process is open to anyone.

Instructions for submitting comments, including deadlines, are available here: https://public-inspection.federalregister.gov/2020-27515.pdf

Every year since 2010, USTR has hosted an open hearing as part of the review, but due to Covid-19, this year there will be no hearing. Instead, the Subcommittee “will submit written questions to commenters as part of the review process and will allow commenters to provide written responses.”

Role of Special 301 in Advancing TRIPS-Plus IPR Provisions

The Special 301 Report has become a tool used to coerce countries to strengthen IP rights beyond the level required by the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Earlier this year, I wrote a paper for the Texas A&M School of Law working paper series that documents how the USTR routinely includes countries that either use or have considered using TRIPS flexibilities. Moreover, countries are pushed to strengthen enforcement of existing laws beyond what the TRIPS Agreement requires.