The Facts Speak

This table provides a sample of the recommendations offered by three of the major U.S. industry associations regarding the placement of countries in the Office of the United States Trade Representative’s (USTR) 2004 ‘Special 301’ Report. The far right-hand column lists the final USTR decision.

• IIPA’s members are the Association of American Publishers (AAP), Business Software Alliance (BSA), The Entertainment Software Association (ESA), The Independent Film & Television Alliance (IFTA.), The Motion Picture Association of America, and the Recording Industry Association of America (RIAA).
• PhRMA groups some 50 leading research-based pharmaceutical and biotechnology companies in the United States.
• BIO is a membership association of over 1,000 companies, academic institutions and biotechnology centres from around the world.

What is Special 301?

The ‘Special 301’ provisions of the U.S. Trade Act of 1974, as amended, require USTR to conduct an annual review of the IP practices of US trading partners, identifying countries which fail to provide adequate and effective levels of intellectual property protection or market access for U.S. persons relying on intellectual property.

In its Annual ‘Special 301’ report, USTR designates countries according to its assessment of how damaging their apparent malfeasances are to U.S. commercial interests:

• Priority Foreign Countries: those countries that USTR believes have the most onerous or egregious policies with the greatest adverse impact on U.S. right holders or products. These countries are subject to accelerated investigations and possible sanctions.
• Priority Watch List: those countries which do not to provide adequate IP protection and enforcement or market access for U.S. persons relying on intellectual property protection.
• Watch List: those countries USTR believes merit bilateral attention to address the underlying IPR problems.
• Section 306 Monitoring: those countries with which the United States has bilateral agreements to address specific problems raised in earlier reports.
• Out-of-cycle Review: those countries that require further monitoring in addition to the annual review cycle.

The U.S. government’s deliberations in this respect are based on information obtained from a range of government agencies, the private sector, U.S. embassies and trading partners, and the National Trade Estimates report. No formal mechanism exists for soliciting direct input into the Special 301 decisions from non-business public interest groups within or outside the United States.