IPR Abuse


The United States wants Caribbean and Latin American countries to be more effective in protecting intellectual property rights and related market access, moves that would give U.S. exporters a greater level of comfort when doing business with those countries. Failure to adequately address these issues could ultimately result in U.S. trade sanctions against those countries that could severely impact revenues for small exporters.


In its 2013 annual global review of protection and enforcement of IPR laws and access to markets for U.S. exporters who rely on such protection and enforcement, the Office of the U.S. Trade Representative placed 41 of the 95 countries it reviewed on its Priority Foreign Country, Priority Watch List and Watch List. While no Caribbean or Latin American countries were cited as priority countries, a category reserved for those whose policies or actions have the greatest adverse effect on U.S. goods, three South American countries (Argentina, Chile and Venezuela) were placed under priority watch because of significant concerns about their IPR practices and policies. Three Caribbean countries (Barbados, Jamaica and Trinidad and Tobago) and nine South and Central American countries (Bolivia, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Paraguay and Peru) were placed on the Watch List, meaning officials from each of those countries must work with their U.S. counterparts to address underlying problems to avoid more severe U.S. action.


The report praises the Bahamas and Panama for “positive developments” in 2012, including payment of royalties by the Bahamas to holders of U.S. rights, and entry into force of a U.S.-Panama Trade Promotion Agreement that sets strong standards for IPR protection and enforcement.


The Annual Special 301 Report on Intellectual Property Rights, delivered to Congress at the beginning of May 1, takes its name from Section 301 of U.S. trade law covering such issues as software and Internet piracy, counterfeiting, and patent and copyright abuses. In the case of Barbados, for example, U.S. composers and songwriters complain that private and government-owned broadcasters in Barbados either fail to obtain appropriate licenses or fail to pay for all of the applicable rights even if they have the appropriate licenses. U.S. officials also want Barbados to repeal a provision in its copyright law that creates a compulsory licensing scheme allowing local cable operators to intercept and retransmit U.S. programming without the consent of, and without adequately compensating, U.S. copyright holders.


For each annual review, USTR publishes a notice in the Federal Register in December, requesting written submissions from the public on “Special 301” concerns. Submissions for this year’s review can be seen at www.regulations.gov, docket number USTR-2012-0022. A transcript of the public hearing conducted on February 20 by the Special 301 interagency subcommittee is available at www.ustr.gov.


Responding to a USTR request in 2009 for public comment on U.S. economic and trade relations with the Caribbean, the National Minority Business Council Inc. attributed blame for the high incidence of IPR abuse in the Caribbean and Central America to a lack of shared knowledge from the United States and “often uncaring” governments in the region.


“The NMBC believes that where knowledge is shared there is mutual progress, but where knowledge is denied there often is abuse,” Fritz-Earle McLymont, managing director of the organization’s international arm, NMBC Global, wrote on the organization’s behalf. “Those who engage in these illegal activities are smart, young people with the potential to be responsible entrepreneurs. What is missing is the enabling environment for them to realize their full entrepreneurial potential in the formal business sector. As a result, they willingly challenge the often incompetent, uncaring government bureaucracy and win. The region’s IP abusers also lack opportunities to partner with the entities that own the proprietary information. Such partnerships would effectively diminish the incidence of IP theft.”


The NMBC says that statement remains valid today.