The Office of the United States Trade Representative released its annual Special 301 Report on the adequacy and effectiveness of trading partners’ protection of intellectual property rights and the findings of its Notorious Markets List, which highlights online and physical markets that reportedly engage in and facilitate substantial copyright piracy and trademark counterfeiting.
The Special 301 Report identifies trading partners that do not adequately or effectively protect and enforce intellectual property (IP) rights or otherwise deny market access to U.S. innovators and creators that rely on protection of their IP rights.
Trading partners that currently present the most significant concerns regarding IP rights are placed on the Priority Watch List or Watch List. USTR identified 36 countries for these lists in the Special 301 Report.
Among the 35 other countries, nations such as Algeria, Argentina, Chile, China, Indonesia, Kuwait, Russia, Saudi Arabia, Ukraine, Venezuela and India have been included on the Priority Watch List.
Other countries such as Barbados, Bolivia, Brazil, Canada, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Greece, Guatemala, Jamaica, Lebanon, Mexico, Pakistan, Paraguay, Peru, Romania, Switzerland, Thailand, Turkey, Turkmenistan, the United Arab Emirates, Uzbekistan and Vietnam are on the Watch List.
Ongoing Challenges and Concerns
Over the past year, India took steps to address intellectual property (IP) challenges and promote IP protection and enforcement. However, many of the actions have not yet translated into concrete benefits for innovators and creators, and long-standing deficiencies persist. India remains one of the world’s most challenging major economies with respect to protection and enforcement of IP rights.
In particular, India has yet to take steps to address long-standing patent issues that affect innovative industries.
Right holders continue to report high levels of piracy and counterfeit sales, including on the Internet, in physical markets (for recent examples, refer to the 2018 Notorious Markets List), and through commercial broadcasts. Court cases and government memoranda also raise concerns that a broad range of published works will not be afforded meaningful copyright protection.
Finally, the expansive granting of licenses under Chapter VI of the Indian Copyright Act and overly-broad exceptions for certain uses have raised concerns about the strength of copyright protection and complicated the functioning of the market for music licensing.
The 2015 passage of the Commercial Courts Act, highlighted in previous Special 301 Reports, provided an opportunity to reduce delays and increase expertise in judicial IP matters. However, to date, India has established only five courts, and right holders report that jurisdictional challenges have reduced their effectiveness. Furthermore, India’s copyright royalty board, which has been folded into the Intellectual Property Appellate Board, is not fully functional, as technical members still need to be appointed. India also has yet to ensure that collective management organizations (CMOs) are licensed promptly and able to operate effectively.
Developments, Including Progress and Actions Taken
While India made meaningful progress to promote IP protection and enforcement in some areas over the past year, it failed to resolve recent and long-standing challenges, and it created new concerns for right holders.
The Cell for Intellectual Property Rights Promotion and Management, established under the Department of Industrial Policy and Promotion to move forward implementation of the National Intellectual Property Rights Policy, continues to spearhead efforts successfully to promote IP rights awareness, commercialization, and enforcement throughout India and undertook new and collaborative efforts in 2018.
India continues to pursue important administrative work to reduce the time for processing patent and trademark applications and digitize the process for registering a copyright.
India’s commitment to bilateral dialogue remains strong, and the United States intends to continue to engage with India on IP matters, including through the U.S.-India Trade Policy Forum.
Specifically, over the coming weeks, USTR will review the developments against the benchmarks established in the Special 301 action plans for countries that have been on the Priority Watch List for multiple years. For such countries that fail to address U.S. concerns, USTR will take appropriate actions, such as enforcement actions under Section 301 of the Trade Act or pursuant to World Trade Organization or other trade agreement dispute settlement procedures, necessary to combat unfair trade practices and to ensure that trading partners follow through with their international commitments.
As part of the Special 301 review process, USTR invited public comments and held a public hearing that featured testimony from witnesses representing foreign governments, industry, and non-governmental organizations. USTR also offered a post-hearing comment period during which hearing participants could submit additional information.
The 2019 Notorious Markets Report starts off listing recent anti-piracy advancements.
Thanks to the help of enforcement officials abroad, the American government has taken successful action against 123movies and gomovies. Authorities have also continued taking action against nefarious stream-rippers following the 2016 closure of YouTube-MP3, though the RIAA recently been defeated in U.S. court by FLVTO.biz owner Tofig Kurbanov.
In addition, authorities have now set their sights on illegal internet protocol television (IPTV) providers. This includes the successful closure of FAB TV. Yet, many nefarious markets remain online. Unlike its EU counterpart, the USTR has once again lumped all infringing sites together. This includes stream-ripping sites, cyberlockers, direct MP3 downloads, illegal TV/movie sites, BitTorrent sites, and more.
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