Gabriel J. Michael / gmichael at gwu dot edu
This year marks 25 years of Special 301 reports. Most readers are probably familiar with the annual process, in which the Office of the United States Trade Representative (USTR) spends about four months collecting input from embassies, soliciting comments from stakeholders, and holding hearings, culminating in the release of a report that places a number of countries on lists of various severity for perceived failures relating to intellectual property policy.
It’s an important event in the DC IP community. The big IP trade groups submit comments and testify in person, as do various consumer and advocacy groups. Sometimes embassy staff from foreign countries testify. In other words, a lot of effort goes into Special 301, both from the agency and from private groups.
In fact, the sheer size of the reports has been increasing over the years. The earliest reports were less than 10 pages, whereas recent reports have been longer than 50 pages. At the same time, however, the number of countries cited in the report peaked in 2000, and has generally declined since then.
This is interesting, since it seems to suggest that more effort (or at least more detail) is being put into the Special 301 process, but that the process is focusing on fewer countries.
At the same time, however, the primary enforcement mechanism of Special 301 has essentially disappeared over the past 20 years. In theory, when the U.S. designates a country as a priority foreign country (PFC, the most severe designation), this can lead to suspension of trade benefits and even imposition of tariffs as punishment. In practice, this has only rarely happened, and is even less likely to happen in the future.
Flynn (2010) notes that the U.S. revoked GSP benefits for Brazil in 1988, Thailand in 1989, and India in 1992, all due to disagreements over pharmaceutical patents. More recently, the U.S. suspended Ukraine’s GSP benefits in 2001, citing inadequate intellectual property protections. Critically, none of these countries were WTO members at the time of GSP revocation. The WTO did not exist prior to 1995, and Ukraine did not join until 2008. Thus, there is no instance in which a Special 301 designation as a priority foreign country has resulted in GSP revocation for a WTO member. The number of non-WTO members cited by Special 301 peaked in 2000 at 16, and has been declining since then. For example, the 2014 report lists just four non-WTO members: Algeria, Lebanon, Turkmenistan, and Uzbekistan. These are the only four countries that the U.S. could conceivably revoke GSP benefits from over IP issues, and none of them are (or ever have been) priority foreign countries.
Thus, unless the U.S. takes the unprecedented step of revoking the GSP benefits of a WTO member on the basis of a Special 301 designation, Special 301 has no real teeth. It is a process without an effective enforcement mechanism.
This leads me to two related questions. First, if Special 301 designations can’t really be enforced, what is the point of the process? Second, if Special 301 designations can’t really be enforced, why do both public and private actors devote significant, and even increasing, resources to the process? There are various theories floating around, but in my opinion they’re not entirely convincing. I’ll address some of them and offer my own take in a future post.
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