USTR Must Get Serious About Protecting Intellectual Property Rights

Ryan Denson
Manager, International IP for the Global Innovation Policy Center (GIPC), U.S. Chamber of Commerce

Published

May 07, 2024

On April 25, the Office of the United States Trade Representative (USTR) released its annual Special 301 report on the adequacy and effectiveness of U.S. trading partners’ protection and enforcement of intellectual property (IP) rights.

Just as USTR’s National Trade Estimate (NTE) Report omitted many trade barriers — as the Chamber decried — this year’s Special 301 also fails to mention key shortcomings of several countries’ IP frameworks that present real challenges for America’s creative and innovative industries.

Real-world impacts: USTR’s policy of “declining to call out countries for exercising Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities, including with respect to compulsory licenses, in a manner consistent with TRIPS obligations” negates the severity of many countries utilizing these measures in manners that the Chamber and its members believe are inconsistent with TRIPS obligations.

Colombia: Most notably, the report’s omission of the new compulsory license in Colombia is deeply concerning to the Chamber, given the ways compulsory licenses inject tremendous uncertainty into the innovation ecosystem.
Mexico: While briefly acknowledging Mexico’s yet-to-be-implemented United States–Mexico–Canada Agreement (USMCA) IP obligations, the report itself fails to substantively address the ongoing issues related to patent and copyright protections as transition deadlines loom. Meanwhile, the business community awaits meaningful efforts by the U.S. government to address the patent linkage, patent term restoration, and marketing approvals, and the ongoing Supreme Court challenge to copyright provisions.
China, India, and other markets: The report rightly acknowledges the many challenges the business community faces in China, India, and other key markets, as well as concerns with the proliferation of counterfeit goods and high rates of online piracy and broadcast piracy. However, the exclusion of key challenges remains deeply concerning and calls into question whether stakeholders can rely on this Administration to ensure countries enforce their trade commitments.

Why it matters: These commitments are law in the United States, and USTR has an obligation to enforce them. As the saying goes, "Trade agreements are not worth the paper they are written on if they aren’t enforced."

Additionally, USTR’s position on TRIPS flexibilities sends a green light to our allies (and adversaries) that IP protections are malleable and subject to the political pressures of the day. Meanwhile, 30 years after the TRIPS agreement was signed, many countries have yet to implement the basic tenets of the agreement.

At a time when the U.S. government’s leadership in Geneva is desperately needed to stem the tide of anti-innovation proposals, USTR’s endorsement of TRIPS flexibilities impedes efforts by our trading partners to use the multilateral rules-based trading system to create and enforce a set of global rules on IP rights.

Bottom line: In today’s global knowledge economy, protection of America’s intellectual property is more challenging and more essential than ever. Simply put, USTR needs to make sure that our trading partners are keeping their word.

For America to succeed in the 21^st Century and beyond, USTR must engage in these critical trade issues and work with industry and other stakeholders to reinvigorate U.S. global trade leadership.