Tag: special 301

The US National Trade Estimates (NTE), Trump’s “Reciprocal” Tariffs and IP/Cultural Industries

Image: Shutterstock

On so-called “Liberation Day”, April 2, a day that, to echo FDR, will live in infamy, (the day the world trading system was turned upside down and the US shot itself in the foot, or head) Donald Trump unveiled a limited list of “reciprocal” tariffs in a Rose Garden game show format. Like a magician revealing a secret, he unveiled a chart announcing imposition of minimum 10% “reciprocal” tariffs on a variety of transgressors, like the UK even though it buys more from the US than it sells to it, or Singapore which is an open port and has no tariff import barriers at all, or even the Heard and Macdonald Islands, a remote Antarctic territory of Australia populated exclusively by penguins. The penguins weren’t on the shorter Rose Garden chart but were included in the full list published by the White House on Truth Social (that authoritative channel). The Truth Social list included the Svalbard and Jan Mayen Islands near the Arctic Circle (population 2500, many of them scientists at research stations), the British Indian Ocean Territory, a jurisdiction populated entirely by the US military with some token Brits to maintain the fig-leaf of British sovereignty, and Norfolk Island, population 1500, a remote island between Australia and New Zealand. Some countries, like the small African kingdom of Lesotho or the French North Atlantic islands of St. Pierre et Miquelon (population 5000) didn’t get off so lightly, being assessed at 50%, half their supposed transgression rate of 99%. St. Pierre’s sin was that someone shipped some fish to the US whereas the French territory neglected to purchase the same volume of US goods. I guess they don’t need Dodge Ram or Chevy Silverado trucks there.

When the White House finally published the official list they cleaned up some of the ridiculous anomalies initially announced (the penguins were gone), but the only official response from the Office of the US Trade Representative (USTR) was to try to explain how the “reciprocal” tariffs were calculated. Prior to the announcement, trade observers assumed USTR would actually measure the level of tariffs imposed on US goods by other countries, possibly “tarrifying” other alleged non-tariff barriers, like Value Added Taxes, “currency manipulation”, cultural support policies, weak IP regimes, or any other perceived or real grievance from US industries. This list of “problematic” measures is released annually in the National Trade Estimates (NTE) document assembled and published by USTR. This year it was released on March 31, a couple of days before “Liberation Day” leading to speculation that it would provide the backstopping for the calculation of tariff reciprocity. However, no measures on the lengthy list of transgressions were actually included or used in making the “reciprocal” tariff calculations. Instead USTR published the following impressive looking formula to explain how the “reciprocal” tariffs were calculated. It makes Einstein’s E=mc² look simple.

What this actually means, however, is that the reciprocal punishment was based exclusively on whether the US ran a trade deficit with another country (except where there was no deficit, as in the case of the UK and Argentina, where countries got nailed with the minimum 10% tariff anyway.) The actual formula represents the 2024 US trade deficit in goods with a given country, divided by the total quantity of US imports from that country. So for example if Country X grows a lot of bananas very efficiently and exports them to the US, which doesn’t grow bananas (as far as I know), and if Country X doesn’t import the same value in US goods as it exports in bananas, it will get nailed with a “reciprocal” tariff of at least 10%, probably more, even if it doesn’t apply tariffs to US imports. Since Country X is a remote, relatively poor country, the likelihood of it being able to import substantial amounts of US goods is low. Never mind that its country is dominated by US service providers, such as delivery services, content streaming services and banks. Services don’t count in the Trump Administrations calculations.

As long as Country X or others like it can’t find a way to buy US products (the leading US exports are petroleum and gas, aircraft and aircraft parts, pharmaceuticals, autos, and chemicals, none of which a poor country like Country X has much need for), their banana exports to the US will be subjected to tariffs. This will increase the price of bananas for US consumers, and possibly lead to reduced imports, putting some banana farmers in Country X out of business thus making them even less likely to buy US products. Who thought this was a good idea? (You know who). As the US National Tax Foundation pointed out, the calculations are nonsense and will punish mutually beneficial trade. Indeed, the sloppiness and amateurish way in which they were calculated and announced seems to reflect the typical modus operandi of this Administration. Rush things to social media without fact checking or even applying a commonsense test, like checking for penguins. It makes USTR look downright foolish.

While some countries were dropped when the official list was published, a couple were never put on that list. Russia was one, since there is almost no bilateral trade post-sanctions; Canada and Mexico were two other significant exceptions. That is because they had already been the recipients of the Trump tariff treatment earlier, as I have written about here, with the imposition of 25% US tariffs (which were subsequently suspended for products that qualify for tariff-free treatment under the USMCA/CUSMA, except for steel and aluminum). Trump used the same loophole, the “national emergency” provisions of the International Emergency Economic Powers Act (IEEPA) to impose tariffs on Canada and Mexico as he used for the “reciprocal” tariffs on most of the rest of the world. This legislation allows the President to deal with “unusual and extraordinary threats” to the national security of the United States.

Trump invoked the supposed flow of fentanyl from Canada to the US as the pretext for his trade actions. Earlier reports had indicated that only 43 lbs of fentanyl had been seized in 2024 by US officials at the Canada-US border (over 21,000 lbs were seized at the Mexican border). Updated statistics winkled out by the Globe and Mail show that in fact 555 lbs were seized at the northern border, or inland having crossed the border, but of this amount, only 0.74 lbs (i.e. less than a lb.) was of Canadian origin, or 0.13 % of the total. The rest was sourced from Mexico, the US itself (almost 30%) or from unknown sources. Facts matter, but apparently not in this case. The use of the IEEPA to impose tariffs on the rest of the world is equally specious, and almost certainly a violation of the legislation, as argued here and in more detail here. Tariffs are the prerogative of Congress to impose except in emergency situations but given the supine, badly divided and highly partisan nature of the current Congress, legislators seem unwilling or afraid to assert their rights and jurisdiction vis a vis the President.

Coming back to the National Trade Estimates (NTE), which until “Liberation Day” many of us assumed would form the basis for the calculation of “reciprocal” tariffs, they are still worth examining to understand which measures get under the skin of US business and the US government. Not all countries hit by the Trump tariffs were listed in the NTEs (the penguin islands did not get a listing), but many were (58 in all) for one policy or another that some interest group in the US objected to.

In Canada’s case, the US not unreasonably complained about Canada’s antiquated supply management system that gives dairy, egg and poultry producers a set-price closed shop paid for by Canadian consumers, and keeps out almost all imports. It also complained about provincial control of liquor distribution and marketing, although 17 US states have similar systems, restrictions on US seed exports, where seeds have to be registered with the Canadian Food Inspection Agency before they can be sold in Canada, and several other issues ranging from plastic waste regulations to the proposed Digital Services Tax. The US also objected to Quebec’s Bill 96 where some US businesses are concerned about the impact of the language law on their federally registered trademarks. But it is in the intellectual property (IP) and cultural industries areas where the complaints pile up.

In the IP area, the NTE draws on last year’s Special 301 (Watch List) Report on Canada, an annual USTR exercise that compiles the IP related “transgressions” of countries into a report that highlights US concerns. Among these with respect to Canada are enforcement against counterfeit goods and online piracy, inspection of goods in-transit, transparency with respect to new geographical indications (GIs), and the broad interpretation of the fair dealing exception for the purpose of education. The notorious Pacific Mall in Markham, about which I wrote way back in 2019, still gets USTR attention. According to USTR’s report “Noticeably counterfeit luxury goods, apparel, electronics, and automobile parts are reportedly on display or hidden under tables or in back rooms but are available upon request.” I did not have that experience when I last visited the place pre-COVID but maybe I didn’t look like a likely buyer so was not invited to look under the table.

As for measures taken by Canada to support cultural industries, both the Online Streaming Act and the Online News Act got mentioned as areas the US will continue to monitor closely. The whole USTR “name and shame” exercise is a bit hypocritical in my view and certainly one-sided since the US itself has a number of shortcomings of its own with respect to policies that limit compensation to creators or fail to adequately provide responses to IP theft, such as establishment of site-blocking (disabling access to offshore pirate websites). Last year I wrote a tongue-in-cheek Special 301 Report assessing how the US is doing. (The USTR “Watch List” Designation You Will Never See).

All these transgressions, and more which the Trump Administration could dream up, like the existence of Goods and Sales Tax (GST) in Canada or a Value Added Tax (VAT) in Europe, could have been used to determine “reciprocal” tariffs. But they weren’t, as we have seen. In Canada’s case it was not assessed tariffs additional to those that had already been imposed on the improbable pretext of fentanyl trafficking, and in the case of other countries, the NTE Report was set aside in favour of USTR’s “innovative” trade calculation formula.

What will happen next? That is anyone’s guess. Since I started writing this blogpost a couple of days ago, global stock markets have gone up and down like a yo-yo. Global tariffs that were to have been imposed at midnight on April 9 were suddenly suspended for 90 days–as a result of an impending meltdown in US bond markets–just hours before the deadline (except for a 10% toll on everyone). There were exceptions, the penguins, Canada and Mexico because of the USMCA, and China, which found itself with a combined tariff of something like 145% imposed on all Chinese goods coming to the US because it had not simply rolled over and accepted the US calculation of “reciprocity”.

If the first 80 days of Donald Trump’s Administration is anything to go by, it is going to be a wild ride that could well end up crashing the vehicle in which we are all passengers . The National Trade Estimates and reports like the USTR Special 301 (IP Watch List) will continue to be prepared and released but will be either ignored or used depending on the current whim in the White House. Some in Congress may eventually be inclined to stand up for their rights to control tariffs. Some US citizens may even go to court to challenge what the Administration is doing in defiance of the law, but all this will take time. In the meantime, don’t look at your stock portfolio, tighten your seatbelt and be prepared for whiplash. It’s Show-Time at the White House. Or is it Amateur Hour?

© Hugh Stephens, 2025. All Rights Reserved.

The USTR “Watch List” Designation You Will Never See

Image: Shutterstock (AI Assisted)

In my last blog post, I discussed the annual Special 301 Report issued by the Office of the US Trade Representative (USTR). The Report is a global survey of the intellectual property (IP) practices of a number of US trading partners, a kind of “report card” in which those that “fail” (badly) are named to a Priority Watch List (PWL) and those that fail, but not so badly (and so are encouraged to do better), are put on the Watch List (WL). The purpose is to highlight practices that damage the interests of American IP-based businesses and IP stakeholders in order, eventually, to get them changed. While one can quibble with some of the IP “transgressions” identified by USTR in its wide-ranging survey, removing or modifying the IP impediments identified in the Report generally speaking results in better outcomes for innovation and creativity both for US IP interests and foreign rightsholders, at least in the area of copyright. (The practices, laws and policies named in the Report are not restricted to copyright; they cover the full range of IP issues such as patents, trade secrets, industrial designs, geographic indications and trademark infringements/counterfeiting). I am going to restrict my commentary today solely to copyright issues.

Since the Report is a US government document mandated by US legislation, and deals with US foreign trade, it is not surprising that problematic IP issues inside the United States are not included in the document. Thus, US rightsholders are deprived of the salutary effect that arises from shining a spotlight on such practices. Were the USTR to hold up a mirror to the US and apply the same sort of critical analysis it applies to other countries, what would be the result? We will never know as USTR has no mandate to publish such a document; the closest it came to criticizing a US company was its inclusion of Amazon’s non-US affiliates in its 2020 “Notorious Markets” list which forms part of the Special 301 Report. Since USTR will never publish a Watch List that includes the United States, someone needs to step into the breach, hold up that mirror and attempt to write what a US Watch List designation might look like. That someone will be me. However, as noted, the commentary will be based exclusively on copyright issues; I am not going to tread into the minefield of patent trolls, counterfeit products, trade secrets or any of the other aspects of IP that are also grist to USTR’s mill.

In assessing what a US Watch List citation might look like, I will follow the same general approach that USTR applies when it passes judgement on the copyright practices of other countries. A measure doesn’t have to discriminate against US IP interests or rightsholders to be included in the Special 301 Report (i.e. it doesn’t matter if US rightsholders are granted national treatment; USTR can still object to the practice), so I will apply that principle. In judging whether to include criticism of certain US measures, or lack of them, I will be guided by the sort of issues that USTR identifies in the practices of other countries named to the PWL or WL. Since I know a bit about copyright in Canada, and since Canada is again on this year’s WL as it has been for the past couple of decades (except when it was downgraded to the PWL), I will use Canada as my principal marker.

For example, in this year’s Special 301 Report in which Canada once again features on the Watch List, the USTR Report critically notes that “Levels of online piracy remain very high in Canada, including through direct downloads and streaming”. In actual fact, Canada is a relatively minor league player when it comes to online piracy. According to the brand protection website Bytescare, Canada doesn’t even rank in the top 20. The list is dominated by Russia, China, India, Brazil etc, and the United States. In fact, according to Variety, the US is the leading source of online piracy globally with 13.5 billion visits to piracy sites annually. Aha, you say, but what about the rate of piracy? Canada’s population is only 40 million so no wonder it is not as high on the list as some others in terms of total piracy visits. According to the Canadian Internet Registration Authority, as quoted by Global News, Canada’s piracy rate in 2022 was a shocking 22.5 %. The US rate in the same year? As estimated by media research firm Parks Associates, it was 22% is but expected to rise to 24.5 percent by 2027. So I guess the US should be called out for its high levels of online piracy. After all, what is sauce for the goose is sauce for the gander.

I will draw on another example from this year’s USTR Report to justify inclusion of a separate observation in my assessment, regarding music royalties. This year, Barbados is singled out for, among other things, “the refusal of Barbadian television and radio broadcasters and cable and satellite operators to pay for public performance of music.” But guess what? Neither does the US, in certain circumstances. As I outlined in this blog (“The American Music Fairness Act (AMFA): A Better and Fairer Solution for Performers than Seeking “National Treatment”), US terrestrial radio stations are not required to pay royalties to performers or labels for playing recorded music on air, a longstanding practice that dates back to the early days of radio. The same free ride does not apply to digital broadcasters and streaming services. Terrestrial AM/FM radio stations are required to pay royalties to composers and songwriters for music played on air, but not to performers. The US is the only developed country jurisdiction to provide such an advantage to terrestrial broadcasters, although since 1997 Canada has had a carve out whereby commercial radio broadcasters are required to pay only $100 in performance royalties on the first $1.25 million in advertising revenue. Needless to say, this is opposed by Canadian performing rights organizations.

The US AM/FM exception denies royalties to US performers for music played on US terrestrial radio, but it also applies to foreign performers when their music is similarly played in the US. For this reason, many countries, including Canada, apply or applied a reciprocity provision (an exception to national treatment) to payment of royalties to US performers when their music is played terrestrially. Unable to get the US Congress to change US law, US performing rights organizations convinced the US government to seek national treatment in Canada with respect to all categories of IP covered in the IP chapter of the USMCA/CUSMA, a goal that was achieved when the new Agreement was signed. Thus, US performers in Canada now get equivalent treatment to Canadian performers; in other words, they get better IP protection in Canada than they do (or Canadian performers do) in the US. Yet Canada is on the USTR Watch List. Sauce for the goose…

That is some of the background to my decision to put the United States on the Watch List in 2024 for copyright-related issues. There are other reasons as well. I know you want to read the full reasoning, so here goes;

The United States remains on the Watch List for 2024. Despite a strong legal framework in place, the US continues to be the source of the largest number of visits to online pirate sites globally. Unfortunately, unlike some 40 countries globally, including USMCA partner Canada, the US has been unsuccessful in implementing any form of site blocking legislation. Site blocking has proven to be an effective and low cost tool, in combination with other measures, to reduce visits to pirate websites and to convert users to legitimate sources of online content. The US authorities are encouraged to work with Congress to put in place an effective mechanism to implement site-blocking in order to reduce high rates of piracy estimated to be in the vicinity of 25% of users. We also have continuing concerns about the inadequacy of US law in protecting performance rights for music played on terrestrial radio stations. The United States is the only developed country that provides an exception for payment of performance royalties for terrestrial stations, a situation that has led to the denial of performance royalty payments to US musicians and labels on the basis of reciprocity in a number of countries where it has not been possible to obtain a national treatment commitment to protect US performers. We remain deeply concerned by stakeholder reports that a 2020 Supreme Court ruling in the US (Allen v Cooper), that upheld the ability of US states to impair the rights of copyright holders based on the principle of sovereign immunity, remains unaddressed. This interpretation opens the door to widespread “legalized infringement” by state operated institutions, such as state university libraries. With regard to fair use, we are encouraged by recent court rulings that suggest a more narrowly defined interpretation of “transformative use” is being applied by US courts in adjudicating fair use claims. We are also encouraged by the passage of legislation to increase criminal penalties for illegal streaming (the Protect Lawful Streaming Act) but note that the legislation has been rarely used since it came into effect in 2020 and urge the US Department of Justice to take full advantage of the tools at its disposal to curb the high rate of online piracy and illegal streaming in the United States. We look forward to working with the United States to resolve these and other important issues.

So there you have it, a slightly cheeky (and tongue-in-cheek) Watch List designation for the US, aka “The Watch List Designation You Will Never See”. I hope this doesn’t upset my many Stateside friends. It is offered in the spirit of “no one is perfect”. All we can do is strive for perfection through learning from each other.

© Hugh Stephens, 2024. All Rights Reserved.

It’s USTR “Watch List” Time Again

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Apart from the budding of leaves, the rites of spring are marked by another annual phenomenon, the issuance of the annual Special 301 Report by the Office of the United States Trade Representative (USTR), widely known as the USTR Watch List. For those not steeped in US trade law, the Special 301 report dates back to the late 1980s and is based on the US Trade Act of 1974, later amended to take intellectual property (IP) issues into account. As stated by USTR, the process is “the outcome of a Congressionally-mandated annual review of the global state of intellectual property (IP) rights protection and enforcement”. Global, that is, except for the United States (More on this later). That is because the legislation requires USTR “to identify countries that deny adequate and effective IP protections or fair and equitable market access to U.S. persons who rely on IP protection” (Federal Register). In other words, it is a US government document that catalogues and categorizes the state of IP protection in other countries if their conditions are considered to be impediments to US exports and/or result in US companies or rights-holders being treated unfairly. The practices identified relate to lack of effective legal protection resulting from lax enforcement (e.g. weak border control of counterfeit products or ineffective anti-piracy measures to protect copyrighted content) or deficient laws (loopholes or lack of legislation in key areas resulting in a failure to protect IP rights adequately), policies that weaken or fail to respect IP standards, at least as interpreted by USTR, and non-transparent, discriminatory or other forms of trade restrictions that impede access to copyright protected content. The exact wording, taken from USTR’s website can be found at the end of this blog.[i]

Note that the policies of the identified countries in question–or lack of policies in some cases–don’t have to discriminate against US rightsholders in order to be included in the USTR report. Normally in trade agreements, “national treatment” is sought in order to avoid discrimination on the basis of nationality, i.e. foreign products and services (in this case US goods and services) should be given the same treatment as domestic equivalents. There is also an expectation that a country’s domestic laws (which form the basis of national treatment) will be consistent with its trade agreement commitments. So, for example, if Ruritania has wide exceptions in its domestic copyright law that permit indiscriminate downloading of music and movies, (let’s say there is an exception “for purposes of cultural appreciation”), this does not directly discriminate against US music labels and studios. Even domestic Ruritanian content producers are affected by this very loose fair use regime although in real-life terms this lopsided legislation would affect US interests significantly more than Ruritanian, since the majority of the content consumed in Ruritania is of US origin. However, since US products have been accorded national treatment, the US would find it difficult to bring a trade dispute case. This is where the Watch List comes in handy since USTR can list any practice it feels justified in calling out without being restricted by the limitations of international trade agreements.

While in the Ruritanian case US interests are disadvantaged by the law’s interpretation, so too is the nascent local content industry, i.e. the limited number of Ruritanian music and film producers who are also getting ripped off. The locals can’t seem to get much traction for changes to the law (because who doesn’t like something for free)? Here again the Watch List can play a role. By working with US IP interests, the USTR 301 Report provides an indirect means for domestic IP stakeholders to bring their concerns to the attention of their own government, assuming that Ruritanian officials are responsive to concerns raised by USTR. So, in this way a unilateral US process can be an effective vehicle to raise all IP boats, although the direct focus is on protecting US intellectual property interests.

The Watch Lists embedded in the Special 301 report are compiled from submissions provided by US companies and trade associations in response to a Federal Register notice. These inputs are then vetted by officials in US embassies and consulates overseas, with additional input from various US government agencies.  The final decision as to who is placed on which list and for what reason is decided by USTR. There are essentially two lists, a “Priority Watch List” (PWL), where countries facing the most serious allegations of inadequate IP protection and enforcement are named. Being on the PWL could result in USTR initiating formal trade investigations or imposing sanctions if there is no improvement. The second list is the “Watch List” (WL), a longer list of countries where the USTR has concerns about their IP practices but the issues are not as serious as in those countries placed on the PWL. For WL countries, the focus is on monitoring and “encouraging” change. Thus, while each situation is a bit different, the outcome of the process can range from pressure and threats to encouragement and reward. When the hearings are held, foreign embassies will often appear to explain their government’s policies in an attempt to stay off the designation list. Some countries take this process very seriously, others less so. In years past, countries like Taiwan, the Philippines and Malaysia regularly appeared on the Watch List. Over time, they addressed the issues of concern and no longer have the dubious honour of being named.

Other countries, like Canada, seem less concerned about being named, at one point calling the USTR report “… invalid and analytically flawed because the process relies primarily on US industry allegations rather than empirical evidence and objective analysis”. Or maybe the Canadian government has realized that no matter what actions it takes, the goal posts will move as new complaints surface from one US industry or another (BigPharma doesn’t like the pharmaceutical approval process in Canada, US food producers don’t like the recognition Canada accorded to European Geographical Indications in the Canada-EU Trade Agreement, or whatever), and it will continue to be designated as has been the case for at least the past 20 years.

As an example, for many years one of the US complaints was that Canadian border officials did not have ex-officio authority allowing them to seize counterfeit goods in transit (presumably enroute to the US from China or somewhere). That issue was fixed in the update to NAFTA (the USMCA/CUSMA) but now the complaint is that “Canadian authorities have yet to take full advantage of expanded ex officio powers”. Not that this would surprise me. CBSA, the Canadian Border Services Agency, seems to be particularly challenged these days. CBSA’s ineptness extends to an apparent inability to stop a massive movement of stolen Canadian vehicles being shipped in containers through the Port of Montreal to the Middle East and Africa. Given the criminal networks engaged in this large-scale, well-organized theft and hijacking of cars, (which has become an epidemic in Toronto—full disclosure, members of my family have been victimized with cars being stolen from in front of their home in the middle of the night three times in the past 24 months), perhaps using their ex-officio authority to interdict the transit of counterfeit goods is not high on CBSA’s to-do list.  

Apart from industry complaints, it would be fair to say that broader political factors also sometimes enter into designation decisions. For example, for many years Ukraine was regularly named to the Priority Watch List for a range of IP transgressions. While its IP record has probably not markedly improved, it is fighting for its life against Russian aggression and presumably strengthening its IP laws is not a current top priority. Therefore, reasonably, the review of Ukraine has been “suspended” although it is not off the hook. Other countries that figure regularly on the “Priority Watch List” (PWL), constitute the “usual suspects”, the ones you would expect to be on such a list; China, Russia, India, Venezuela and three or four others. In 2024, there were 7 PWL countries. There were also 20 named to the less serious “Watch List” category, among them places like Algeria, Belarus, Pakistan, and Turkemenistan, (Uzbekistan was removed this year) but also NAFTA partners Canada and Mexico.

During the USMCA/CUSMA negotiations in 2018, under the Trump Administration, Canada was downgraded to the PWL, the most serious transgressor category. As I commented at the time, this was clearly a politically-driven negotiating tactic to exert pressure on Canada during the negotiations and, frankly, strained the credibility of the process by equating a rule of law country like Canada with other countries on that year’s PWL. Not that Canada has clean hands. This year’s USTR comments about Canada’s Watch List designation cite several concerns. One is the failure of CBSA to fully exploit its ex-officio powers, mentioned above. There is also concern that the courts are not issuing sufficient deterrent level penalties when those trafficking in counterfeit goods are caught. There is also the allegation that “Levels of online piracy remain very high in Canada, including through direct downloads and streaming. Piracy devices, apps, and subscription services are reportedly sold throughout Canada, both in physical retail locations and through online channels.” All probably true, but is the problem any worse in Canada than in the US? See my next blog.

The USTR report also includes a concern with which I very much agree, namely, “the broad interpretation of the fair dealing exception for the purpose of education, which…has significantly damaged the market for educational authors and publishers”. However, I suspect that even if the Canadian government finally got around to fixing this injustice (which I hope will be the case), Canada would still be on the WL some other reason.

To summarize, the Special 301 Watch List process has been effective in raising IP standards generally in many areas globally but is not immune from influence arising from US domestic political factors. It is also consciously not designed to identify IP shortcomings in the United States. But what if the US was also reviewed under the Special 301 provisions? If USTR applied the same critical lens to IP practices in the United States that it applies to other countries, (at least in the area of copyright), what would a US Watch List designation look like? The results might be surprising to some readers. To find out what this might look like, stay tuned for my next blog post, “The USTR Watch List Designation You Will Never See”.

© Hugh Stephens, 2024. All Rights Reserved.

[i] The Report identifies a wide range of concerns that limit innovation and investment, including:  (a) the deterioration in the effectiveness of IP protection and enforcement and overall market access for persons relying on IP in a number of trading partner markets; (b) reported inadequacies in trade secret protection in countries around the world, as well as an increasing incidence of trade secret misappropriation; (c) troubling “indigenous innovation” policies that may unfairly disadvantage U.S. rights holders in foreign markets; (d) the continuing challenges of copyright piracy and the sale of counterfeit trademarked products on the Internet; (e) additional market access barriers, including nontransparent, discriminatory or otherwise trade-restrictive, measures that appear to impede access to healthcare and copyright-protected content; and (f) ongoing, systemic IP enforcement issues at borders and in many trading partner markets around the world.