Post-TPP Special 301 Report Shows How Little Has Changed

Last Friday the United States Trade Representative (USTR) released the 2017 edition of its Special 301 Report [PDF], which the USTR issues each year to “name and shame” other countries that the U.S. claims should be doing more to protect and enforce their copyrights, patents, trademarks, and trade secrets. Most of these demands exceed those countries’ legal obligations, which makes the Special 301 Report an instrument of political rhetoric, rather than a document with any international legal status.

Last year’s Special 301 Report included 45 references to the Trans-Pacific Partnership, which was at the time soon expected to become the jewel in the USTR’s crown. This year, following the TPP’s humiliating defeat, it is not mentioned in the Special 301 Report even once. Indeed, not only has the TPP been expunged from the text as if it never happened at all, but the USTR has also finally ceased touting the Anti-Counterfeiting Trade Agreement (ACTA), another dead IP treaty that it had nonetheless included as a supposed global standard in its previous Special 301 Reports.

Instead, the USTR reports on its work at the World Trade Organization (WTO), which has opened up as a possible new front for the USTR to push former TPP standards. The Special 301 Report scolds certain countries for “server localization mandates, cross-border data flow restrictions, [and] programs to support only local data hosting firms,” all of which were concerns previously addressed by the TPP, and now proposed for resolution at the WTO. Whether the WTO has the appetite to address such issues, however, remains to be seen; we’ll know more following its Ministerial Conference at Buenos Aires in December this year.

Other than the omission of the TPP shibboleth, it’s surprising how little else has changed in this year’s Special 301 Report compared to last year’s. In fact, this is the first time ever that the exact same 11 countries have been nominated for the Priority Watch List as last year, along with the exact same list of 23 countries for the regular Watch List. The topics on copyright that are treated in the Special 301 Report are also a repetition of last year, including complaints about stream ripping, mod chips, and media players that are configured to access infringing streams. China, in particular, is singled out for criticism in this regard:

China remains a leading source and exporter of systems that facilitate copyright piracy, including websites containing or facilitating access to unlicensed content, and illicit streaming devices configured with apps to facilitate access to such websites. These systems also include devices and methods that facilitate the circumvention of technological protection measures, which enable the delivery of services via the cloud and protect video games and other licensed content.

In addition to this, the USTR continues to complain about countries that fail to adequately protect trademarks used in domain names, and India in particular is criticized for “the issuance of problematic guidelines that appear to restrict the patentability of computer implemented inventions.”

None of these complaints have any legal basis. The technologies mentioned in the paragraph about China all have substantial non-infringing uses, such as the use of circumvention tools for backup, archival, compatibility, and repair. The question of how and to what extent trademarks should be protected in domain names is a question for multi-stakeholder bodies such as ICANN and its national-level equivalents, not for governmental horse-trading. And India’s position on computer implemented inventions (which prohibit computer software from being patented per se, but allow software in combination with new hardware to be patented) is broadly in line with similar policies held in Europe and elsewhere.

Then again, nobody in the know ever read the Special 301 Report expecting it to be legally accurate. Rather, it’s just a document used to threaten other countries into submission to unilateral U.S. demands. And with the demise of the TPP, those threats are now emptier than ever before.