OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE Washington, D.C. FACT SHEET

Transcription

1 OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE Washingtn, D.C. April 26, 1991 FACT SHEET "SPECIAL ON INTELLECTUAL PROPERTY Ambassadr Carla A. Hills, the united states Trade Representative (USTR), annunced tday the Administratin's decisins with respect t this year's annual review under the s-called "Special 301" intellectual prperty prvisins f the Omnibus Trade and Cmpetitiveness Act f These prvisins prvide a statutry framewrk t assess the adequacy and effectiveness f prtectin f intellectual prperty ri~hts and market access prvided by ur trading partners. THE SPECIAL 301 PROVISIONS t The bjective f Special 301 is t enhance the Administratin's ability t negtiate imprvements in freign intellectual prperty regimes thrugh bilateral and/r multilateral initiatives. Specifically, the statute requires the USTR t identify thse freign cuntries that deny adequate and effective prtectin f intellectual prperty rights, r deny fair and equitable market access fr D.S. persns relying n intellectual prperty prtectin, and t determine which f thse cuntries are pririty freign cuntries. Pririty freign cuntries are thse cuntries whse practices are the mst egregius and have the greatest adverse impact, actual r ptential, n u.s. prducts, and wh are nt making significant prgress in bilateral r multilateral intellectual prperty negtiatins. Under the Special 301 prvisins, if a cuntry is identified as a pririty freign cuntry, the USTR must, within 30 days f identificatin, initiate a sectin 301 investigatin f the plicies and practices that were the basis f the identificatin and are nt already the subject f a 301 investigatin. If an investigatin is initiated, it must be cncluded within six mnths. This perid~may be extended t nine mnths, if certain statutry criteria are met. At the end f the investigatin perid, the USTR must decide whether the measures under investigatin are actinable, and if s, decide what respnse is apprpriate, including pssible retaliatin. USTR may identify a cuntry as a pririty freign cuntry at any time that the facts warrant r may remve a cuntry's identificatin at any time. 2

2 <: '.~;',-:-,.,, PRIORITY FOREIGN COUNTRIES Despite substantial prgress by the Administratin in negtiating mutually acceptable slutins t ur intellectual prperty prblems in many cuntries arund the wrld, the lack f adequate and effective intellectual prperty prtectin has remained particularly acute in sme cuntries. As a result, the Administratin has identified the fllwing three cuntries as pririty freign cuntries: China India Thailand All three f these cuntries have been n the Administratin's Special 301 "Pririty watch List" since the first annual review in In each case, the practices 'f these cuntries have been fund t be egregius, resulting in an adverse impact n U.S. industry. N significant prgress has been made, either bilaterally r multilaterally, t address these practices. China is ur nly majr trading partner t ffer neither prduct patent prtectin fr pharmaceuticals and ther chemicals, nr cpyright prtectin fr U.S. wrks. In additin, trademarks are granted t the first registrant in China, regardless f the riginal wner. Trade secrets are nt adequately prtected in China. As a result, piracy f all frms f intellectual prperty is widespread in China, accunting fr significant lsses t U.S. industries. India has been identified as a Pririty Freign Cuntry because it prvides an inadequate level f patent prtectin, including t shrt a term f prtectin and verly brad cmpulsry licensing prvisins. As a result f the ttal lack f prtectin fr certain classes f inventins, particularly pharmaceuticals, many U.S. patented prducts are widely pirated. Cpyrighted materials including bks, vides, sund recrdings, and cmputer sftware, are als pirated. Finally, market access fr mtin pictures is severely restrained thrugh qutas, fees, and ther barriers. Thailand has been identified as a Pririty Freign Cuntry because f failure t enfrce cpyrights and deficient patent prtectin, especially in the area f pharmaceuticals. In the area f cpyright, ineffective enfrcement has led t significant lsses fr the U.S. mtin picture, sund recrding and cmputer sftware industries. In the area f patents, lack f patent prtectin fr pharmaceuticals, alng with verly brad cmpulsry licensing prvisins and an insufficient term f prtectin have caused hardship fr U.S. cmpanies. Since these

3 deficiencies are already the subject f sectin 301 investigatins, the USTR will nt initiate new investigatins under Special 301. PRIORITY WATCH LIST 3 cuntries whse acts, plicies and practices meet sme, but nt all, f the criteria fr pririty freign cuntry identificatin have been placed n the Pririty Watch List. Their lack f adequate and effective intellectual prperty prtectin and/r their denial f market access fr U.S. gds relying n this prtectin are f great cncern t the Administratin. Accrdingly, the Administratin will cntinue t wrk actively t reslve these prblems and will mnitr clsely the situatins in these cuntries t determine if any further actin under Special 301 is warrant~d. The fllwing three cuntries have been placed r retained n the Pririty Watch List: Brazil Eurpean Cmmunity Australia Brazil was placed n the Pririty Watch List in 1989 fr serius deficiencies in its patent law, including failure t prvide prcess r prduct patent prtectin fr chemicals, fdstuffs, and pharmaceuticals. A new law prviding this prtectin is scheduled t be intrduced in the Brazilian Parliament shrtly and the U.S. Gvernment will be reviewing this prpsed legislatin carefully. In additin, lsses frm piracy in the vide and cmputer sftware areas are significant. Althugh market access restrictins n cmputer sftware cntinue in place, there has been imprvement. Furthermre, the Brazilian Gvernment has intrduced legislatin that will remedy sme f the prblems. The Eurpean Cmmunity was placed n the Pririty Watch List fr market access restrictins that limit u.s. audivisual exprts. The EC Bradcast Directive, adpted in Octber 1989, directs EC member states t ensure IIwhere practicable" that TV bradcasters reserve a majrity f bradcast time fr Eurpean wrks. The Directive takes effect n Octber 3, Varius member states have already begun enacting bradcast qutas (France -- 60% f prgramming must be Eurpean, and after January 1,1992, 60% f prime-time prgramming must be Eurpean; Italy -- 40% f televised feature films n independent channels must be Eurpean, rising t 51% by 1994; UK -- a majrity f prgramming time n independent channels must be Eurpean - infrmal BBC guidelines are even stricter; Spain -- 40% f prgramming must be prduced in the Ee; Prtugal -- majrity f bradcast time must be Eurpean;).

4 4 Australia was als placed n the pririty Watch List under the market access prvisins f the statute fr limiting u.s. audivisual exprts. Australia maintains a quta f 40% Australian rigin n televisin transmissins frm 6 a.m. t midnight; this quta will rise t 50 percent in In additin, the Australian Bradcast Tribunal requires that dramatic prgramming meet "Australian lk" standards, discuraging freign televisin prgrams. Finally, with the exceptin f 20 percent f the pictrial matter, all televisin advertisements must be prduced in Australia r New Zealand. WATCH LIST In reviewing the practices f all f ur trading partners, the USTR has decided that 23 f thse trading partners shuld be placed r retained n the Watch List fr special attentin (rather than be therwise identified) because they maintain intellectual prperty practices r barriers t market access that are f particular cncern. Over the next year, the united states will step up its effrts with these trading partners t reslve prblems assciated with prtectin f intellectual prperty r market access. Thse placed r retained n the Watch List are: Argentina Canada Chile Clmbia Cyprus Egypt Germany Greece Indnesia OTHER ACTIONS Italy Hungary Japan Krea New Zealand Pakistan Philippines Spain Taiwan Turkey Saudi Arabia united Arab Emirates Venezuela Yugslavia Malaysia has been remved frm the Watch List because f its adherence t the Berne Cnventin and imprved enfrcement effrts in the area f cpyright. Althugh nt placed n any lists, prblems in three cuntries have raised specific cncerns. In the case f Pland and the U.S.S.R., as a result f bilateral negtiatins with the United states that tk place last year, bth cuntries are undertaking significant refrms in their intellectual prperty regimes. Rapid passage and implementatin f this legislatin is extremely imprtant since piracy f intellectual prperty, particularly f cpyrights, appears t have increased dramatically, particularly in Pland. In the case f Ecuadr and the ther cuntries f the

5 Andean Pact, lack f adequate patent prtectin is f great cncern t ur industries. It is ur hpe that these cuntries will intrduce this prtectin in the near future. USE OF SPECIAL 301 TO DATE 5 In its first annual review, n May 25, 1989, the USTR singled ut 25 trading partners whse practices warranted special attentin. Of these, 17 were placed n the Watch List, while the remaining eight were placed n a Pririty Watch List. The status f the eight trading partners placed n the Pririty Watch List was reviewed n Nvember 1, Saudi Arabia, Krea and Taiwan were mved frm the Pririty Watch List t the Watch List at that time because f significant prgress in the prtectin f intellectual prperty rights. In January 1990, Mexic was remved frm all lists after it published its "Industry and Trade Sectral Plan" utlining the Mexican Gvernment's intentin t imprve prcess and prduct patent prtectin, in additin t imprving the enfrcement f trademarks and prviding enhanced prtectin fr trade secre,ts. In the secnd annual review, annunced n April 27, 1990, the USTR placed 23 trading partners, whse practices were f special cncern, n ne r the ther f the tw lists. Fur cuntries were retained n the Pririty Watch List: Brazil, India, PRC, and Thailand. Nineteen trading partners were retained n the Watch List. Prtugal was remved frm all lists. PROGRESS ON INTELLECTUAL PROPERTY ISSUES January - April 1991 Chile enacted a revised patent law, including prduct patent prtectin fr pharmaceuticals but implementing regulatins have nt yet been issued. (January). The United states and The Peple's Republic f Mnglia signed a trade agreement including strng prtectin fr intellectual prperty rights (January). Japan sent a revised cpyright law t the Diet fr cnsideratin which wuld extend the term f prtectin frm 30 t 50 years, and prvide better prtectin fr freign phngrams (March). Japan intrduced a bill in the Diet amending the Trademark Law t prvide prtectin fr service marks (March). Venezuela has decided t mdernize its industrial prperty

6 6 legislatin and intends t submit legislatin t Cngress by mid The united states and Bulgaria signed a trade agreement including strng prtectin fr intellectual prperty rights (April). Egypt frwarded a new audi-visual law t its Parliament (April), and lng-awaited cpyright amendments are expected shrtly. Greece is near cmpletin f draft cpyright amendments t extend prtectin t sund recrdings and cmputer sftware. Indnesia agreed t imprve cnditins f market access fr mtin pictures, take additinal steps t curtail cpyright piracy, and cntinue discussin f further market-pening measures. (April) Mexic published its "Industry and Trade Sectral Plan" utlining the gvernment's prgram t mdernize prtectin and enfrcement f patents, trademarks and trade secrets (January). The Federal Republic f Germany increased penalties fr infringement f intellectual prperty rights (January). Yugslavia amended its patent law t extend the term f prtectin t 20 years frm filing, amng ther imprvements (March). The united states signed a trade agreement with Pland which includes strng terms f prtectin fr intellectual prperty rights (March). The Eurpean cmmunity, Japan, switzerland, and furteen LDC's tabled legal texts in the Uruguay Rund negtiatins n the Trade Related Aspects f Intellectual Prperty Rights (April). The United states signed a trade agreement with Czechslvakia which includes strng terms f prtectin fr intellectual prperty rights (April). In spain, several defendants were fund guilty f cmputer sftware piracy by a district curt judge in the first case t test the 1987 intellectual prperty law (May).

7 7 The United states and the Unin f sviet Scialist Republics signed a trade agreement which includes Sviet cmmitments t pursue strengthened IPR prtectin (June). Chile clarified its cpyright prtectin fr cmputer sftware, thus ensuring that it is a literary wrk (June). The Peple's Republic f China passed a cpyright law with prtectin effective in June, Hwever, the law des nt prtect freign authrs' wrks first published utside f China. (September). Malaysia amended its cpyright law and acceded t the Berne Cnventin fr the Prtectin f Literary and Artistic Wrks (Octber). Japan enacted a law prtecting t~ade secrets (Octber). The Eurpean cmmunity tk a "cmmn psitin" n prtectin fr cmputer sftware, including a 50-year term f cpyright prtectin (December). Agreement was reached t establish bilateral cpyright relatins with Taiwan (January). Krea created a task frce t crdinate intellectual prperty respnsibilities between ministries and designated enfrcement teams (January). A Bilateral Agreement n Cpyright was signed with Indnesia (March). A Uruguay Rund mid-term review decisin n intellectual prperty was reached (April). The Peple's Republic f China cmmitted t prvide cpyright prtectin fr cmputer sftware (May). Clmbia reslved ryalty remissin prblem cncerning mtin pictures (May). Taiwan agreed t expeditiusly reslve cpyright prblems cncerning mtin pictures (May). Saudi Arabia adpted a patent law (May). Clmbia passed a law defining cmputer sftware as cpyrightable material (June).

8 ," 8 Spain extended patent prtectin t U.S. plant varieties n a reciprcal basis (June). Taiwan initialled a bilateral cpyright agreement, and submitted legislatin which better prtects films frm unauthrized public perfrmance (July). Argentina agreed t mdify its pharmaceutical prduct registratin prcedures, and t address the issue f patent prtectin fr pharmaceutical prducts (September). Indnesia enacted its first patent law including prduct prtectin fr pharmaceuticals, effective August 1991 (Octber). Prtugal increased penalties fr audi piracy (Nvember). Italy intrduced legislatin t prevent cmputer sftware piracy (Nvember). Saudi Arabia enacted a new cpyright law (December).