The Office of the United States Trade Representative (USTR) – Executive Office of the President has issued its 2021 Special 301 Report (Report). This Report is about the Intellectual Property Rights (IPR) protection in various countries worldwide with particular emphasis on how it affects the US IPR. The Special 301 Report is the result of an annual review of the state of intellectual property (IP) protection and enforcement in U.S. trading partners around the world.

The Report is written from a US perspective not necessarily acknowledged by all countries.  China in certain cases, requires the sharing of know-how with Chinese owned companies, as a condition to allow access to its domestic market.  This conditional access to the Chinese market is deemed by the US as a violation of the IPR of the US companies.  On the other hand, the US conditions access to its own domestic market, on non-American companies applying US long-arm provisions in its laws.  Such conditional access to the US market is not usually challenged as illegal.

The Report puts a spotlight on the laws and practices of various countries that fail to provide adequate and effective IP protection of US IPR.  USTR reviewed more than 100 trading partners and identified countries that failed to protect US IPR in two categories.  The first is a Priority Watch List (PWL).  This category is the one that pauses more urgent danger and merit immediate US focus.  Countries in the PWL are accused of more egregious acts, policies, or practices.  Their practices have the greatest adverse impact (actual or potential) on the relevant U.S.  The second category is the Watch List (WL).   Placement of a trading partner on WL indicates that particular problems exist in that country with respect to IP protection, enforcement, or market access for persons relying on IPR.  A country that would merit inclusion in the PWL or WL may not be designated as such if it is entering into good faith negotiations or making significant progress in bilateral or multilateral negotiations to provide adequate and effective protection of IP.

The USTR in the Special 301 Report has identified 32 trading partners (out of more than 100) and classified them as follows:Although the USA welcomed Egypt’s recent efforts to strengthen the protection and enforcement of IP, Egypt remained on the Watch List in 2021.  In the report it is mentioned that USA urges Egypt to continue addressing concerns that have been raised with respect to copyright and trademark enforcement, patentability criteria, patent and trademark examination criteria, and pharmaceutical-related IP issues.  The Report emphasized on progresses that happened in Egypt regarding IPR protection and also clarified why there are still some negative issues that should be addressed from the USTR point of view to remove Egypt from the watch list.

Priority Watch List:

Argentina – Chile – China – India – Indonesia – Russia – Saudi Arabia-Ukraine – Venezuela.

Watch list:

Algeria – Barbados – Bolivia – Brazil – Canada – Colombia – Dominican Republic – Ecuador – Egypt – Guatemala – Kuwait – Lebanon – Mexico – Pakistan – Paraguay – Peru – Romania – Thailand – Trinidad and Tobago – Turkey – Turkmenistan – Uzbekistan – Vietnam.

“In preparing the Report, substantial information was solicited from U.S. embassies around the world, from U.S. Government agencies, and from interested stakeholders. The draft of this Report was developed through the Special 301 Subcommittee of the interagency Trade Policy Staff Committee”.  The IP Department at I&D (IPD) did come across cases in pharmaceutical, trademarks and unlicensed streaming and broadcasting.  In fact, Egypt itself is a victim in the area unlicensed streaming of its artistic works both within the neighboring countries as well as other countries that have Arabic speakers within its population.  IPD has had many successes in the enforcement of IPR of its clients.  We believe in the importance of our role to allow the Egyptian trading partners to build more confidence in their mutual investment and trading relations.

IPD differentiates between countries where enforcement of judgements in general is a challenge and those countries where enforcement of IPR rights are more severely challenged than enforcement of other judgements.  This distinction is important.  In prescribing a solution to the problem, we need to know whether the challenge stems from a more general lack of enforcement mechanism, or whether there is an underlying prejudice in appreciating the value of IPR.

Progresses and Positive Advancements Outlined by USTR Include:

The Negative Issues Which Lead to the Continued Existence of Egypt in the USTR Watch List Include:

The Report on Egypt’s status regarding IP concluded that: “The United States appreciates Egypt’s recent enhanced engagement on IP issues with stakeholders and stands ready to work with Egypt to improve its IP regime, including by developing a work plan outlining necessary steps to resolve the concerns described above.” It is our opinion that while this cooperation is an excellent opportunity to benefit from the US enforcement expertise, the cooperation should also include cooperation where Egyptian IPR is also prejudiced in many countries including the USA.

Reference: https://ustr.gov/sites/default/files/files/reports/2021/2021%20Special%20301%20Report%20(final).pdf

Dr. Gihan Taha