The Office of the United States Trade Representative (USTR) requests comments that identify online and physical markets that “engage in and facilitate substantial copyright piracy or trademark counterfeiting that infringe on U.S. intellectual property,” to be considered for inclusion in the 2022 Review of Notorious Markets for Counterfeiting and Piracy (aka the “Notorious Markets List”).
Written comments are due on October 7, 2022, and may be submitted online via a comment submission portal. Enter the docket number USTR-2022-0010 in the search field at the https://regulations.gov home page.
Background
The US Trade Representative office publishes two reports that serve as documents-of-record by government agencies and regulators, and as evidence of the damage inflicted by piracy for consumer and commercial interests. Â The Notorious Markets List is one of those two reports, and has been published annually since 2005.
The other is the annual Special 301 Report, named after Section 301 of the Trade Act of 1974 (19 U.S.C. §2411) is a statutory framework under which identifies countries and trading partners that violate US trade agreements.
What to report
The USTR’s notice provides guidelines for submissions for the Notorious Markets list:
For online markets that engage in or facilitate substantial piracy:
- Identifying information, such as domain name(s) of the market, the name(s) of the owner(s) or operator(s), the geographic area(s) where the market operates, and whether the market is owned, operated, or otherwise affiliated with a government entity
- Revenue sources, how revenue is collected, and the entities that help facilitate revenue.
- Economic harm to right holders resulting from piracy and how it is estimated.
- Whether the number of pirated goods or files, or the economic harm, has increased or decreased, and how calculated
- Any known contractual, civil, administrative, or criminal enforcement activity against the market and the outcome.
- Any actions taken by right holders, and the outcome.
- Any actions taken by the market owners or operators to remove, limit, or discourage the availability of pirated goods or services, and the level of cooperation with right holders and law enforcement.
- Any other additional information relevant to the review.
For online markets that engage in or facilitate substantial counterfeiting:
- Identifying information, as listed above
- Estimate of the quantity or scale of infringement.
- Estimate of the number and types of infringing instances, how they were estimated, and supporting documentation.
- Estimate of economic harm to right holders and whether it has increased or decreased from previous years.
- Any known contractual, civil, administrative, or criminal enforcement activity against the market and the outcome of that enforcement activity.
- Any actions taken by right holders and the outcome of these actions.
- Any actions taken by the market owners or operators in addressing the infringement and the level of cooperation with right holders and law enforcement.
- Whether it poses a risk to public health or safety.
- Any other additional information relevant to the review.
For physical markets that engage in or facilitate substantial counterfeiting or piracy:
- Identifying information
- Whether the market is owned, operated, or otherwise affiliated with a government entity.
- Types of counterfeit or pirated products or services made available at the market.
- Volume of counterfeit or pirated goods or services or other indicia of the market’s scale, reach, or relative significance.
- Description and estimate of economic harm to right holders, and how calculated.
- Whether the volume has increased or decreased
- Whether the infringing goods or services pose a risk to public health or safety.
- Any known enforcement activity and the outcome.
- Additional actions taken by right holders and the outcome
- Additional actions taken by the market owners or operators to remove, limit, or discourage the availability of counterfeit or pirated goods or services, the effectiveness of market policies and guidelines in addressing counterfeiting and piracy, and the level of cooperation with right holders and law enforcement.
- Any other additional information relevant to the review.
Read the full Comment Request as published in the US Federal Register
Read the Notice from the Office of the US Trade Representative including guidelines for submitting comments.
Submit a comment to the Office of the US Trade Representative
Read the 2021 Notorious Markets Report, published in February 2022.
Why it matters
The Notorious Markets List identifies examples of online and physical markets that reportedly engage in or facilitate substantial copyright piracy or trademark counterfeiting. The issue focus for the 2022 Notorious Markets List will examine the impact of online piracy on U.S. workers.
