Tag: ustr

How Did Content Discoverability Become a Third-Rail Issue for Canada-US Trade Talks?

A person holding two circular objects resembling binoculars, with red and white Canadian flags displayed on each lens.
Image: Shutterstock.com

US Trade Representative Jamieson Greer declared in his interview with the CBC on August 26 that the issue of discoverability of Canadian content, especially French language content, was not a dealbreaker. It had only been “highlighted” by the US as an issue. “There is no way we would let a good deal go by for something like this”, he is reported to have said. Canada-US Trade Minister Dominic Leblanc immediately jumped on Greer’s comments saying in a social media post that he welcomed the fact the US is withdrawing its positions on the French language and Canadian culture. On this basis, said Leblanc, there might still be the possibility of reaching a trade agreement after all. Talk about putting words into someone else’s mouth! Greer said nothing of the sort, although if both sides want to get back to the table at the earliest opportunity (and it is not clear that they do), then this would help provide a pretext.

While Greer said the US only “highlighted” the discoverability issue, this was a clear admission it had been put forward as an irritant the US wants resolved. You don’t raise an issue at the negotiating table only to say it wasn’t really important after all. Perhaps it was put there to be traded off for something else, or to keep Canadian negotiators on the defensive? Perhaps Greer is indicating that USTR only kept discoverability on the list to mollify the US streaming industry? But whatever the motivation, apparently this issue kept showing up in the list of US demands right up to the time the Canadian negotiators walked away.  It seems that the streamers, having swallowed the Carney government’s announced intention to reverse the CRTC’s decision requiring them to “contribute” 15 percent of annual revenues to Canadian production, smacked their lips, burped and said “More”. This may have been a strategic mistake as it allowed the Carney government to wrap itself in the flag and “stand up” for Canadian culture.

If discoverability wasn’t an issue, why put it forward? By the same logic, if French language labelling (Quebec’s Bill 96) wasn’t an issue, why was it up for negotiation? While French-language labelling requirements weren’t included in this year’s list of trade barriers published annually by USTR, Bill 96 was included in 2025. This year, Quebec Bill 109 which addresses the French language discoverability requirements was explicitly listed under “Service Barriers” in the Canada section of the National Trade Estimates. (As an aside, Bill 109 may intrude on the federal broadcasting power, well established in law for decades, but that is another issue for another day). Either these issues were on the list of “trade irritants” the US wanted resolved, or they were not. It is pretty clear that they were. And it is also clear that USTR has not “withdrawn its position”.

Putting discoverability of French language and other Canadian content on the list of US negotiating objectives makes this a third rail issue because of how it touches on sovereignty and the right to cultural expression. The Online Streaming Act, under which both discoverability and contributions to Canadian content fall, is consistently listed by the US as a trade issue. Until now, the mandatory payments (aka “contributions”) were the key sticking point but, as Michael Geist has commented, recent developments seem to have shifted the focus of US discontent away from payment for production of Canadian content to the promotion of such content. I am not convinced the payment issue has entirely gone away, however. The government has yet to issue a directive to the CRTC instructing the Commission how to modify its implementation of the Online Streaming Act, other than stating in press reports and a court filing that it will not be pursuing statutory contributions of 15%, or the earlier announced level of 5%, based on annual revenues. Culture and Identity Minister Miller has said publicly that the streamers will still be expected to “reinvest” in the production of Canadian content. Meanwhile the Canadian cultural community is urging the government to rollback its previously announced reversal of the CRTC mandated contributions. Canada may still hold some cards.

With regard to discoverability, what is its purpose, how will it work, and why is it so important both to Canada and to the US industry? Discoverability relates to promoting an awareness of certain types of content, in this case Canadian content or French language content, so that consumers can decide if they want to give certain content a try. The CRTC definition is as follows;

“…content and services are discoverable if they are made available and visible to audiences, including when an audience member is not actively seeking such content and services.”

Discoverability applies to both audio and video streaming service, for example, Spotify and Netflix. The contribution framework announced by the CRTC, now suspended, applied the initial 5% “down payment” contributions to both music and video streamers although the second tranche that raised the contribution to 15% applied only to the video streamers. Perhaps the CRTC would have dropped the second shoe on the audio streamers too, but they didn’t get around to it before the government intervened to roll back the mandated contributions on the AV streaming industry.

It is true that video streamers like Netflix already have a button to access Canadian content, so if a consumer really wants to watch a Canadian show, they can go there first. But most consumers, including me, don’t want to watch shows just because they are in some way Canadian. We want to watch shows that interest us. If a show that interests me happens to be Canadian, that might pique my interest, but I am unlikely to search it out. Therefore the requirement is that Canadian content be presented as part of the proposed options within genres that viewers prefer, i.e. no “Canadian silos”. There is no prescription as to how this will be done. It could be along the lines of the “Produced in Canada” labels that Loblaws has just been pressured into putting back on Canadian produced food, it could be an animated beaver waving at the viewer from the corner of the frame, (me, me, watch me) or it could be something more subtle, like prominence of display. We will have to wait and see. Discoverability has come into play because the old world of content quotas is passé. Most consumers today aren’t passive receivers of content that is served up to them; they are actively engaged in deciding what they consume by choosing from the menu. There is choice. What discoverability seeks to do is inform, or some might say, influence that choice.

If discoverability is only about surfacing Canadian content rather than requiring production or airing of Canadian content, then why are the streamers so opposed?  One reason might be that they don’t have that much Canadian content on their platforms and if they are required to constantly highlight new Canadian productions, this might require more investment in acquiring or producing Canadian content, especially if there are restrictive definitions of what qualifies as Canadian under CRTC rules. More on this point below. The second objection is that imposing discoverability will screw up their algorithms (and cost them money). I am not a technical guy but frankly I don’t buy that. If an algorithm can be tweaked to serve up differing content based on one’s user profile, I don’t understand why it can’t be programmed to make Canadian content discoverable. I do understand why the streamers–who operate in many countries–don’t want to do this. But if they have to subtitle in Italian in Italy, perhaps in Canada they may have to tweak the algorithm and the operating system for francophone consumers, both in terms of discoverability and user interface.

Other than having regulations that require a Canadian production to be discoverable, how else could Canadian content stand out? Simple. By being good. The sad result of decades of subsidization of Canada’s TV and film industry is that it has produced a lot of second-rate content that meets Cancon criteria, but which almost no-one wants to watch. You can fill the airwaves with Canadian content, but you still can’t compel audiences to watch it. Of course there are exceptions, but as Peter Grant pointed out in a guest column on this blog a couple of weeks ago, it is an open question as to whether Canada can produce a global hit. Those engaged in the industry—writers, directors, filmmakers—may argue that the structure of the industry (lack of financing) and English Canada’s cultural domination by its southern neighbour means the cards are stacked against producing a good quality, commercially viable Canadian product. Therefore, it is argued, government needs to step in to level the playing field (or tilt it). This has happened for many years, yet the reality is that more is invested in production in Canada (as opposed to Canadian production) by US producers than by all sources of Canadian funding combined, as this study documents. Will discoverability change any of this? Maybe yes, maybe no. Might be worth a try, and in an age where content quotas don’t work, there is not much alternative.

On the issue of streamer contributions, I noted in his CBC press interview that Greer said the Online Streaming Act (OSA) requires (at least until further notice) that US streamers “fund their competitors”. The US regards this as unfair. It is also a misinterpretation and mischaracterization. The main competitors of the big US streamers in Canada are other US streamers. There are Canadian streaming services against which they compete to some extent, like Crave or CBC Gem, but Crave is a “frenemy” because it relies on purchased US content for much of its core programming, and Gem is not going to put any US streamer out of business. The perception that the streamers are required to fund their competition comes from the way their contribution moneys are used.

Under the OSA, as interpreted by the CRTC, the funds contributed by the streamers (and Canadian broadcasters) are allocated in a variety of ways, but none of them are fully controlled by the contributors. There are all sorts of conditions and handcuffs. Among these is a requirement that large online streaming services will, “be required to invest in production partnerships with Canadians that hold the majority of the copyright in the Canadian programming”. In other words, the streamers are limited in their ability to invest in and produce their own Canadian productions to meet their spending obligations. The copyright on the Canadian productions the streamers finance must be held by a Canadian and if the streamers want to exploit that production, they will need to acquire the rights through licensing. They might not be able to do so. For example, they might be outbid by a rival streaming service. This is what I think leads to the argument that they are being forced to fund the competition. If they could control their own productions while meeting Canadian spending guidelines, no-one could argue they were being forced to fund their competitors. I have no idea if lifting the copyright restriction would satisfy the streamers (after all, any business wants “more” and if they can enlist the services of their government to strongarm the other side, why not try?), but it is clear the current system is not working well and furthermore is an obstacle to increased production of Canadian content by the US streamers.

The Cancon system, which is very complex, is not designed to accommodate such a “radical” idea, but maybe as we try to find a way forward to ensure that Canada can promote its content, perhaps we can also find ways to ensure the streamers are incentivized to produce some of that content, as I have written about most recently here and here. This might also result in the content produced being something that Canadians and others will want to watch. Once they have discovered it, that is.

© Hugh Stephens, 2026.  All Rights Reserved.

This post has been updated to provide more detail on the nature of discoverability requirements as outlined by the CRTC.

The USTR “Watch List” Designation You Will Never See

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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.