[A2k] PIJIP Snapshot of Industry Influence on the 2008 Special 301 Report

[Mike Palmedo]

http://www.wcl.american.edu/pijip/go/research-and-advocacy/301-watch

PIJIP Snapshot of Industry Influence on the 2008 Special 301 Report

April 29, 2008

American University=92s Program on Information Justice and Intellectual
Property has compared the 2008 Special 301 Report to industry
submissions to US Trade Representative by the International Intellectual
Property Association (IIPA)[1] and the Pharmaceutical Research and
Manufacturers Association (PhRMA). The comparison show that:

Most of the countries which the industry groups USTR to place in the
Special 301 Report are in it.
- 86% of the nations IIPA singled out are in the USTR report.[2]
- 75% of the nations PhRMA singled out are in the USTR report.[3]

Two related important concerns for both industry groups were a lack of
timely, effective prosecutions of IP infringers, and sentences handed
down by court which the industries viewed were not tough enough to deter
further infringement. 65% of the countries listed in the Special 301
Report are cited for one or both of these offenses.[4]

The top concern for the copyright industry is piracy (especially
internet and book piracy). 79% of the countries IIPA asked to have cited
for piracy are included in the Special 301 Report.[5]

A top concern for the pharmaceutical industry is the protection of test
data. 61% of the countries PhRMA asked to have cited for inadequate data
protection are included in the Special 301 Report.[6]

However, USTR was less responsive to some of the industries=92 other
concerns. Only 41% of the countries cited by IIPA for having open air
counterfeit-good markets were included in the report. Only 36% of the
countries cited by PhRMA for regulatory approval of generic versions of
drugs still on patent (=93linkage=94) were included in the report,[7] and
none of the 7 countries cited by PhRMA for parallel imports were included.

PIJIP=92s tables comparing the industry submissions and the Special 301
Report are available on the PIJIP 301 Watch page.[8]

The Special 301 Report, released annually by USTR lists nations that
=93deny adequate and effective protection of intellectual property rights,
or deny fair and equitable market access to United States persons that
rely upon intellectual property protection.=94[9] In preparing its report,
USTR solicits advice from interested parties. Any person or group can
submit comments, but the majority come from firms and industry groups
representing IP owners. In some cases, countries included in previous
reports submit comments to USTR outlining steps they=92ve taken to toughen
intellectual property rules. Each year, IIPA and PhRMA submit the most
detailed comments to USTR, asking it to include various countries for
specific offenses.[10]

Nations included in the Special 301 Report are typically subjected to
further pressures the US government, and inclusion on the Special 301
may discourage foreign investment.[11] This year, nine countries were
identified as =93Priority Watch List,=94 which is the most serious ranking =
a
country is given before USTR designates it a Priority Foreign Country,
at which time USTR is required to begin the process of setting up formal
trade sanctions.[12] Another 36 countries are identified on the =93Watch
List,=94 indicating that the US government will continue to monitor their
behavior. Paraguay was included under section 306, meaning that USTR is
monitoring its compliance with an agreement meant to resolve a former
301 dispute.

-----------------
FOOTNOTES

[1] The IIPA describes itself on its website as =93a private sector
coalition formed in 1984 to represent the U.S. copyright-based
industries in bilateral and multilateral efforts to improve
international protection of copyrighted materials.=94
[2] 37 out of 43 nations.
[3] 36 out of 48 nations.
[4] 30 out of 46 nations.
[5] 34 out of 43 nations. In its submission to USTR, IIPA complains
about different types of piracy in different countries (book piracy,
music piracy, business software piracy, etc.). In the Special 301
Report, USTR is sometimes specific about the types of piracy in a
country which led to its inclusion on the list, but at other times it
cites countries for the less specific =93copyright piracy.=94
[6] 20 out of 33 nations.
[7] 9 out of 25 countries.
[8] http://www.wcl.american.edu/pijip/go/research-and-advocacy/301-watch
[9] 19 USC 2242(a)
[10] USTR has placed all of the comments it received online:
http://www.ustr.gov/Trade_Sectors/Intellectual_Property/Special_301_Public_=
Submissions_2008/Section_Index.html?ht=3D
[11] Assistant USTR for Intellectual Property and Innovation Stan McCoy.
April 25, 2008.
[12] 19 USC 2412(b)(2).

--
Mike Palmedo
Research Coordinator
Program on Information Justice and Intellectual Property
American University, Washington College of Law
4910 Massachutsetts Ave., NW Washington, DC 20016
T - 202-274-4442 | F 202-274-0659
mpalmedo@wcl.american.edu