The format remains the same as in previous years and lists roughly two dozen countries that, for different reasons, threaten the intellectual property rights of US companies.
The latest report, which just came out, is the first under the administration of President Trump and continues where Obama left off. China, Russia, Ukraine, and India are listed among the priority threats, and Canada and Switzerland remain on the general Watch List.
“One of the top trade priorities for the Trump Administration is to use all possible sources of leverage to encourage other countries to open their markets to U.S. exports of goods and services, and provide adequate and effective protection and enforcement of U.S. intellectual property (IP) rights,” the USTR writes.
One of the main problems the US has with Canada is that it doesn’t allow border protection officials to seize or destroy pirated and counterfeit goods that are passing through.
In addition, the US is fiercely against Canada’s fair dealing rules, which adds educational use to the list of copyright infringement exceptions. According to the US, the language used in the law is too broad, damaging the rights of educational publishers.
“The United States also remains deeply troubled by the broad interpretation of an ambiguous education-related exception to copyright that has significantly damaged the market for educational publishers and authors.”
In the past, Canada has also been called out for offering a safe haven to pirate sites, but there is no mention of this in the 2017 report (pdf).
That said, pirate site hosting remains a problem in many other countries including Switzerland, with the USTR noting that the country has become an “increasingly popular host country for websites offering infringing content” since 2010.
While the Swiss Government is taking steps to address these concerns, another enforcement problem also requires attention. One of the key issues the United States has with Switzerland originates from the so-called ‘Logistep Decision.‘
In 2010 the Swiss Federal Supreme Court barred anti-piracy outfit Logistep from harvesting the IP addresses of file-sharers. The Court ruled that IP addresses amount to private data, and outlawed the tracking of file-sharers in Switzerland.
According to the US, this ruling prevents copyright holders from enforcing their rights, and they call on the Swiss Government to address this concern.
“Switzerland remains on the Watch List this year due to U.S. concerns regarding specific difficulties in Switzerland’s system of online copyright protection and enforcement,” the USTR writes.
“Seven years have elapsed since the issuance of a decision by the Swiss Federal Supreme Court, which has been implemented to essentially deprive copyright holders in Switzerland of the means to enforce their rights against online infringers. Enforcement is a critical element of providing meaningful IP protection.”
The above points are merely a selection of the many complaints the United States has about a variety of countries. As is often the case, the allegations are in large part based on reports from copyright-heavy industries, in some cases demanding measures that are not even in effect in the US itself.
By calling out foreign governments, the USTR hopes to elicit change. However, not all countries are receptive to this kind of diplomatic pressure. Canada, for one, said it does’t recognize the Special 301 Report and plans to follow its own path.
“Canada does not recognize the validity of the Special 301 and considers the process and the Report to be flawed,” the Government wrote in a previous memo regarding last year’s report.
“The Report fails to employ a clear methodology and the findings tend to rely on industry allegations rather than empirical evidence and objective analysis,” it added.