Category Special 301

USTR Seeks Comments For Annual Report on Foreign Trade Barriers

The U.S. Trade Representative has called for comments for the National Trade Estimate Report on Foreign Trade Barriers (NTE). The report, published each year "sets out an inventory of the most significant foreign barriers affecting U.S. exports of goods and services, including agricultural commodities, U.S. intellectual property, U.S. foreign direct investment by U.S. persons, especially if such investment has implications for trade in goods or services, and U.S. electronic commerce."

China’s Innovative Turn and the Changing Pharmaceutical Landscape

... Since the mid-2000s, China has taken an innovative turn that has serious ramifications for the global pharmaceutical landscape and future issues lying at the intersection of intellectual property and public health. To be sure, many policymakers and commentators still focus unduly on the problems in the Chinese intellectual property system. Notable recent examples include the Trump administration's Section 301 reports and the United States' second complaint against China for violating the WTO TRIPS Agreement. Nevertheless, it is time that policymakers and commentators paid greater attention to the changing Chinese pharmaceutical landscape and its many ramifications.

Shamnad Basheer IP/Trade Fellowship with Texas A&M University School of Law

[Srividhya Ragavan] In memory of Shamnad Basheer the founder of SpicyIP and IDIA, the Association for Accessible Medicines in collaboration with the Texas A&M University School of Law invites applications for the Shamnad Basheer IP/Trade Fellowship with Texas A&M University School of Law. The fellow will work closely with Professor Srividhya Ragavan of Texas A&M University School of Law and Jonathan Kimball of the Association for Accessible Medicines to produce a white paper that examines the Special 301 submissions of the Pharmaceutical Research and Manufacturers of America to the Office of the U.S. Trade Representative (USTR). The fellow will evaluate the submissions’ role and impact on USTR policymaking and their consistency with the approach to intellectual property protection and enforcement outlined in the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (Trade Promotion Authority) and the May 10 Agreement concerning international trade negotiations and access to healthcare and pharmaceutical innovation.

Comment for the 2019 Special 301 Review

...PIJIP’s research indicates that American firms in industries that rely on copyright limitations enjoy better outcomes when our trading partners’ limitations are more like fair use. Specifically, US firms in technology and related sectors do better in countries where copyright exceptions permit fair uses and practices of any type of work, by any user, and for any purpose – as long as the use itself is fair to the owner.

The NAFTA Negotiations — And Canada’s Priority Watch List Designation: It’s All About the Leverage

[Hugh Stephens] Abstract: Negotiating tactics can often appear harsh, but when the United States Trade Representative (USTR) placed Canada on its Priority Watch List (PWL), the move went beyond the standard give-and-take of renegotiating the North American Free Trade Agreement. Canada – a nation that believes in the rule of law – joins China, Algeria, Kuwait and Venezuela, to name just a few, on the PWL list for its alleged “worst” record in intellectual property standards. Granted, Canada has room for improvement in this area, but for the USTR’s annual Special 301 report to place it on the PWL is hardly credible. It is no coincidence that Canada, the only G7 country – and virtually the only western country – to make either the PWL and the USTR’s lesser Watch List (WL), is also in the midst of renegotiating NAFTA with the United States and Mexico.

Special 301: U.S. Gov’t “Watch List” Threatens Access to Meds

[Public Citizen] Special 301 is an annual report by the Office of the US Trade Representative (USTR) which places countries on a “watch list” if USTR would like to see greater changes in their intellectual property rules or enforcement practice.The USTR articulates in past Special 301 Reports that “the United States respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all,” and “the United States respects its trading partners’ rights to grant compulsory licenses in a manner consistent with the provisions of the TRIPS Agreement.” However, in these same reports, USTR has frequently criticized countries for exercising public health rights and other flexibilities enshrined in the TRIPS Agreement and Doha Declaration. Every year the USTR hears public comments on the Special 301 review.

Lies, Distortions, and False Promise: The U.S. Position on Compulsory Licenses in the 2018 Special 301 Report

[Brook Baker] Once again the U.S. is unbelievably duplicitous in its 2018 Special 301 Report on permissible uses of compulsory and government use licenses by its trading partners, including most recently Colombia and Malaysia where it is announcing out-of-cycle reviews.  On the one hand, the USTR pays lip service to the Doha Declaration on the TRIPS Agreement and Public Health, saying that “the United States respects a trading partner’s right to protect public health and, in particular, to promote access to medicines for all” (p. 33) and that it supports use of the so-called Paragraph 6 compulsory licensing system (p. 34), which has only been used once in 15 years.  However, it has withdrawn a statement in its 2017 Special 301 Report that “the United States respects its trading partners’ rights to grant compulsory licenses in a manner consistent with the provisions of the TRIPS Agreement and the Doha Declaration … ” On the other hand, the U.S. issued a broadside assault on the actual issuance of, or even discussion of compulsory licenses in a Report replete with lies, distortions, and false promises.

China Claims U.S.’s Section 301 Investigation into Its Tech Transfer and IP Licensing Policies May Violate WTO Dispute Settlement Understanding

Last week, China warned that the U.S.'s threat of unilateral sanctions under Section 301 of the Trade Act violates its WTO commitment to settle disputes within the WTO Dispute Settlement framework, and it referred to a previous case in which a panel addresses how the U.S. could use Section 301 and stay within the bounds of the WTO framework.

Don’t Be Afraid of Compulsory Licenses Despite US Threats: Special 301 Reports 1998-2017 – Listing Concerns but Taking Little Action

For the past 20 years in its annual Special 301 Reports, the US has consistently criticized countries that do not have compulsory licensing standards that Big Pharma likes, that threaten to issue compulsory licenses, or that have actually had the temerity to issue a compulsory license... Despite its many complaints, veiled threats, and backroom maneuvers against compulsory licenses, the USTR’s bark has been much, much louder than it’s bite. 

My Comments to USTR for the 2018 Special 301 review

PIJIP’s research indicates that American firms operating overseas in industries that rely on copyright limitations enjoy better outcomes on average when our trading partners’ limitations are more open – defined as being open to the use of any type of work, by any user, or with a general exception that is open to any purpose subject to protections of the legitimate interests of right holders. Econometric research on both the activities of foreign affiliates of U.S. firms and service exports by U.S. firms illustrate this conclusion.  At the same time, firms in the more traditional “copyright sectors” (i.e. – music, movies, and printed media), do not seem to be negatively affected by greater balance and openness in copyright limitations.

USTR Notorious Markets: Online Ads Still Funding IP Infringement; Alibaba Fires Back About Report

[William New] The Office of the United States Trade Representative today released its annual list of the worst outlaw online and physical markets around the world, citing a range of major sources of problems in every part of the world. The list this year highlights new technologies, identifies online advertising as a large revenue source for counterfeiters, and includes Chinese online market Taobao, owned by internet giant Alibaba, for the second year in a row, leading the company to claim bias and politics are at play.