Tech, Internet Groups Identify Nations With Potentially Harmful IP Practices; Urge Continued Global IP Protection

Technology and Internet industry groups urged the U.S. to continue promoting IP protection among its trading partners, and identified countries that violate existing IP obligations or fail to provide "fair and equitable" market access, in comments filed with the Office of the U.S. Trade Representative and made public Monday. Stakeholders submitted comments to the USTR in response to the agency's request for written responses to its Special 301 report (see 1602080061), which is meant to "identify countries that deny adequate and effective protection of intellectual property rights (IPR) or deny fair and equitable market access to U.S. persons who rely on intellectual property protection." Commenters also warned of both active and proposed rules by certain global competitors that limit cross-border data flows and encourage digital protectionism.

BSA|The Software Alliance said "in many cases," U.S. trading partners have been "deficient" in protecting and enforcing IP rights and eliminating unfair barriers to market access for BSA members. "Adequate and effective copyright, patent and trade secrets protection and enforcement remains a critical element for a successful commercial environment" for BSA members, the group said. BSA asked the USTR to place Argentina, Chile, China, Ecuador, India, Indonesia, Russia, Ukraine and Vietnam on its priority watch list for foreign countries, and asked that Brazil, Greece, Kazakhstan, Korea, Mexico, Nigeria, Romania, Thailand and Turkey be included on the USTR's nonpriority watch list. It also said Spain should be listed as a "country of concern."

Many of the countries that BSA said should be included on the priority watch list have encouraged restrictions against public procurement of foreign software products and services, the group's comments said. Many priority watch countries also limit the ability of data to pass into or out of their borders, said BSA, which can restrict outside firms from providing data services. Because prohibitions against data localization practices and impediments to cross-border data flows were included in the recently signed Trans-Pacific Partnership, BSA "strongly supports this important outcome and urges the U.S. government to seek similar results through all available trade mechanisms, including Special 301." BSA also identified countries, including the U.K., France, India, Russia and Brazil, that are using or proposing to use security concerns to "justify de facto trade barriers," and warned of certain countries enacting or considering policies that might negatively affect its member companies on patents, trade secrets, standards and licensing compliance.

While it didn't specifically identify countries it would like to see placed on any of the USTR's IP watch lists, CompTIA told the agency in comments that it's concerned about policies of foreign governments that create restrictions on cross-border data flows affecting the ability of companies to provide data services outside their national territories and that discriminate against procurement in the information and communications technology (ICT) sector to promote domestic industry. "CompTIA supports policies that advance free and open competition, promote a highly educated and technical workforce, encourage collaboration and cooperation in ideas and technology, and positively impact the ability of the private sector to effectively research, develop, integrate, manufacture, service and freely sell solutions in the global marketplace," said the group.

The Internet Association backed "balanced" IP rights protections, in its comments to the USTR and said the protections must "recognize limitations and exceptions in copyright that advance the public interest and ensure market access." To adequately advance U.S. interest in IP, the USTR "should highlight not only enforcement measures that may be necessary to deter illicit activity, but also support limitations, exceptions, and other balancing measures in intellectual property frameworks that are foundational for the success of U.S. stakeholders as they do business abroad." The group said Germany and Spain are countries using "ancillary copyright laws" to "the detriment of U.S. IPR stakeholder interests." The ancillary copyright laws -- legal entitlements for quotations or clips that enable countries to impose levies or restrictions on their use -- "violate international copyright obligations and deny market access to U.S. Internet companies," said the group. The Internet Association also said the USTR should "not attempt to reassign responsibility to intermediaries for the enforcement" of IP laws. "The Internet Association strongly supports efforts to combat piracy online," it said. "However, effective protection of the exclusive rights of copyright holders must not deputize intermediaries, including domain name registrars, as copyright enforcement arms."

The Computer and Communications Industry Association highlighted the ancillary copyright laws in Germany and Spain, in comments it filed with the trade representative, and cited Australia's "failure" to adequately implement safe harbor obligations under the U.S.-Australia Free Trade Agreement. Along with advocating for copyright protections, CCIA said U.S. international advocacy "should ensure adequate and effective protection for all industries regulated" by IP laws. "In order to maintain international market access for U.S. online services doing business abroad, the U.S. Trade Representative must compel trading partners to maintain their IP-related commitments," the group said.