A key priority of U.S. government trade policy is ensuring adequate and effective copyright protection and enforcement by U.S. trading partners. To make certain this priority is addressed, there is a high-profile congressionally mandated annual review. U.S. trade law requires the U.S. Trade Representative (USTR), to identify countries that are denying adequate and effective copyright protection or enforcement for American creators, or that are using market barriers to prevent fair entry into markets. This is known as the “Special 301” proceeding (a reference to a section of U.S. trade law) and results in an annual USTR “Special 301” Report issued by April 30. The U.S. government uses the review and the resulting Report to raise and address concerns with the U.S. trading partners identified in the Report.
Ahead of the issuance of USTR’s April Report, the U.S. government asks for private sector comments. For over 30 years, the International Intellectual Property Alliance (IIPA) has filed in the Special 301 process, extensively detailing copyright legal and enforcement deficiencies and market access barriers in countries all over the world. The IIPA, formed in 1984, is an alliance of five trade associations—Association of American Publishers, Entertainment Software Association, Independent Film & Television Alliance, Motion Picture Association and Recording Industry Association of America, collectively representing over 3,200 U.S. companies producing and distributing copyrightable content.
On January 28, 2021, IIPA filed its Special 301 comments in this year’s review, focusing on 24 countries. The filing identifies ways to improve market conditions in each of these markets, with specific recommendations on legal and enforcement improvements in each country as well as market barriers to be overcome. For 20 of these countries, the IIPA filing recommends their placement on one of the USTR designated “lists” (which vary in scope depending on the severity of the conditions in each country). Additionally, IIPA recommends that four countries should be considered for bilateral engagement by USTR as part of a review process known as an “Out-of-Cycle” review.
In the larger picture, IIPA’s Special 301 filing is significant because of the importance of the creative industries to the U.S. economy. The barriers IIPA identified in its filing cause harm to U.S. creators and millions of U.S. workers. In December 2020, IIPA released the latest update of its comprehensive economic report, Copyright Industries in the U.S. Economy: The 2020 Report, prepared by Economists Inc. (2020 Economic Report). According to the 2020 Economic Report, the “core” copyright industries in the United States generated over $1.5 trillion of economic output in 2019, accounting for 7.41% of the entire economy, and employed approximately 5.7 million workers in 2019, accounting for 3.79% of the entire U.S. workforce and 4.46% of total private employment in the U.S. The jobs created by these industries are well-paying jobs; for example, copyright industry workers earn on average 43% higher wages than other U.S. workers. The full economic report is available here.
Thus, as the IIPA 2020 Economic Report illustrates, the copyright industries are a critical driving force for creating quality jobs, sustaining good wages, and growing the economy. The creative community makes outsized contributions not only to American culture and the quality of life around the world, particularly in these challenging times, but also to the millions of Americans who work in this sector. American creators are at the forefront of technological advances, producing and disseminating creative content using a wide variety of media and ever-more sophisticated systems and new digital business models.
The result of the industries’ efforts is clear: more creative content is now legally available, in more diversified ways, and with more varied pricing options than at any other time in history, for the enrichment and enjoyment of consumers.
Removal of the specific barriers described in this year’s IIPA’s Special 301 filing would improve the 24 foreign markets identified for the U.S. copyright industries, resulting in more jobs and improved livelihoods for both American (and local) creators, producers and distributors of legal materials. Removal of these barriers would further add to the creative industries’ contributions to employment and economic growth in the United States, and result in even more content available for consumers.
Here are the recommendations of the IIPA’s 2021 submission:
- Eleven countries—Argentina, Chile, China, India, Indonesia, Mexico, Russian Federation, South Africa, Taiwan, Ukraine, and Vietnam—for placement on USTR’s Priority Watch List; and
- Nine countries—Brazil, Canada, Colombia, Ecuador, Kenya, Switzerland, Thailand, Turkey and United Arab Emirates—for placement on USTR’s Watch List.
- Four countries—Malaysia, Namibia, Nigeria, and South Korea—for a special “Out-of-Cycle” Review of ongoing legal reform efforts.
Among the cross-cutting legal and enforcement challenges highlighted in IIPA’s Special 301 submission are:
- Alarming trends in national copyright law amendments that focus on weakening copyright protections, often falling below minimum global norms.
- The need for legal frameworks adapted to meet the challenge of online piracy, including adequate legal incentives for intermediaries to cooperate with copyright owners to keep the digital marketplace secure and healthy, and making effective injunctive relief available to remedy online theft of intellectual property.
- The global proliferation of Piracy Devices: set-top boxes, anti-circumvention technologies and other devices weaponized with software and apps that enable unauthorized access to streaming music, video, games, and published materials. While China is the major source of Piracy Devices, their impact now undermines legitimate digital marketplaces worldwide.
- Stream-ripping services and other illegal means of circumventing technological protection measures that are essential to new digital consumer services—from streaming and downloading, to innovative entertainment software.
- A large number of trading partners still need to accede to, or fully implement, the World Intellectual Property Organization Internet Treaties, which set global, minimum copyright standards for the digital environment.
- Market access barriers, including rules and regulations that discriminate against U.S. copyright-based businesses and their products.
The full report and more materials can be found here.
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