The 2022 Special 301 Report, prepared by the Office of the US Trade Representative (USTR) drew submissions from 18 govenments (other than the US), and from 44 non-governmental stakeholders. USTR reviewed more than one hundred trading partners and placed twenty-seven of them on its Watch List. Among those, seven were assigned Priority Watch status. They were Argentina, Chile, China, India, Indonesia, Russia, and Venezuela.
The Special 301 Report gives commenters “an opportunity to put a spotlight on foreign countries and the laws, policies, and practices that fail to provide adequate and effective IP protection and enforcement for U.S. inventors, creators, brands, manufacturers, and service providers, which, in turn, harm American workers whose livelihoods are tied to America’s innovation- and creativity-driven sectors,” according to the USTR.
Concerns include:
- Challenges with border and criminal enforcement against counterfeits, including in the online environment;
- High levels of online and broadcast piracy, including through illicit streaming devices;
- Inadequacies in trade secret protection and enforcement in China, Russia, and elsewhere;
- Troubling “indigenous innovation” and forced technology transfer policies that may unfairly disadvantage U.S. right holders in markets abroad
The report also identifies other ongoing, systemic issues regarding IP protection and enforcement, as well as market access, in many trading partners around the world.
Countries singled out
In 2021, China enacted amendments to the Patent Law, Copyright Law, and Criminal Law, as well as other measures aimed at addressing IP protection and enforcement. Rights-holders continue to raise concerns about their adequacy and their effective implementation, as well as concerns over bad faith trademarks, counterfeiting, and online piracy. The US is closely monitoring China’s progress in implementing its commitments under the United States-China Economic and Trade Agreement.
The Special 301 review of Ukraine has been suspended due to Russia’s premeditated and unprovoked further invasion of Ukraine in February 2022. A further “out of cycle” review of practices by Bulgaria will be conducted in 2022.
About the Special 301 Report
The “Special 301” Report is an annual review of the global state of IP protection and enforcement. USTR conducts this review pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act.
The Special 301 Report complements the USTR’s annual Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets List), which identifies illustrative examples of online and physical markets that reportedly engage in, facilitate, turn a blind eye to, or benefit from substantial copyright piracy and trademark counterfeiting, based upon information submitted to the USTR during a public comment period.
For further reading
The 2022 Special 301 Report by the Office of the US Trade Representative
The USTR Press Release (April 27, 2022), USTR Releases 2022 Special 301 Report on Intellectual Property Protection and Enforcement.
The 121 submissions made during the public comment period are available to the public online at www.regulations.gov, docket number USTR-2021-0021. Note that many of the submissions were from stakeholders outside the Media and Entertainment sector but also conveyed concerns over counterfeiting, licensing and piracy.
Why it matters
“Intellectual property-intensive industries support more than 60 million jobs – from the independent inventor just starting out to the documentary filmmaker studying critical social issues. We need robust protection and enforcement in foreign countries to protect these individuals, their livelihoods, and ensure they can fairly compete in the global marketplaces,” said US Trade Representative Katherine Tai. “Following extensive input from a broad range of stakeholders, the 2022 Special 301 Report identifies trading partners that are falling short.”
The list changes from year to year. The Kingdom of Saudi Arabia is no longer listed in the Report, as it had been for several years, partially due to the beoutQ piracy case, which is no longer active. Since then, the Kingdom has acted to quell the concerns expressed by the WTO and other world bodies. Kuwait and Romania were also removed this year because they both have made progress in areas of IP protection and enforcement. Lebanon was also removed because no concerns were submitted about that country during the Report’s comment period.
