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2018 SPECIAL 301 REP

ORT ON

COPYRIGHT PROTECTION

AND

ENFORCEMENT

SUBMITTED FEBRUARY 8, 2018

TO THE

U

NITED STATES TRADE REPRESENTATIVE

BY THE

INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE

© 2018 International Intellectual Prop

erty Alliance Material in this report is protected by copyright. it may, however, be reproduced for non -commercial purposes or quoted with appropriate attribution to the International Intellectual Property Alliance.

International Intellectual Property Alliance

is a registered service mark of International Intellectual Property Alliance. IIPA is a registered service

mark of the International Intellectual Property Alliance. The logo (three circles with a "c" in the center and the globe design) is a service mark of the

International Intellectual Property Alliance.

© 2018 International Intellectual Property Alliance (IIPA) 2018 Special 301: Table of Contents

Issued February 8, 2018

Page 1 www.iipa.org

TABLE OF CONTENTS INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE 2018

SPECIAL 301 REPORT ON COPYRIGHT PROTECTION AND ENFORCEMENT SUBMISSION: Letter to Ms. Elizabeth Kendall, Acting Assistant United States Trade Representative

for Innovation and Intellectual Property, Office of the United States Trade

Representative

APPENDIX A: Country Surveys

Priority Watch List

Argentina .......................................................................................................................................... 1

Chile ................................................................................................................................................. 6

China ............................................................................................................................................. 12

India ................................................................................................................................................ 28

Mexico ................................

39

Russian Federation ....................................................................................................................... 51

Taiwan ............................................................................................................................................ 63

Ukraine ........................................................................................................................................... 71

Vietnam .......................................................................................................................................... 82

Watch List

Brazil .............................................................................................................................................. 94

Canada ......................................................................................................................................... 107

Colombia ................................................................................................

120

Ecuador ........................................................................................................................................ 125

Indonesia ...................................................................................................................................... 129

Peru .............................................................................................................................................. 140

South Africa ................................

146

Switzerland ................................................................................................................................... 155

Thailand ........................................................................................................................................ 163

United Arab Emirates.................................................................................................................... 174

International Intellectual Property Alliance (IIPA) 2018 Special 301: Table of Contents

Page 2

Annex - Short Country Summaries ....................................................................................................... A-1

Barbados ....................................................................................................................................... A-2

Costa Rica ..................................................................................................................................... A-3

Egypt ............................................................................................................................................. A-4

Guatemala ..................................................................................................................................... A-5

Jamaica ......................................................................................................................................... A-6

Turkey ........................................................................................................................................... A-7

Venezuela...................................................................................................................................... A-9

APPENDIX B: History of Countries' Special 301 Placement (1989-2017) and IIPA's 2018 Special 301

Recommendations

1818 N STREET, NW, 8

TH FLOOR

WASHINGTON, DC 20036

T

EL (202) 355-7900 · FAX (202) 355-7899

WWW.IIPA.ORG · EMAIL: INFO@IIPA.ORG

9770260.1/40488-00001

February 8, 2018

Submitted via regulations.gov Docket No. USTR-2017-0024

Ms. Elizabeth Kendall

Acting Assistant United States Trade

Representative

for Innovation and Intellectual Property

Office of the United States Trade Representative

600 17th Street, N.W.

Washington, D.C. 20508

Re: IIPA Written Submission Regarding 2018 Special 301 Review: Identification of Countries Under Section 182 of the Trade Act of 1974: Request for Comment and Notice of Public

Hearing, 82 Fed. Reg. 61363 (Dec. 27, 2017)

Dear Ms. Kendall:

This submission by the International Intellectual Property Alliance (IIPA) is made in response to the above-

captioned Federal Register Notice, which requested public comments regarding intellectual property protection and

market access barriers in U.S. trading-partner countries, as part of the "Special 301" review. 1

IIPA has filed comments in the Special 301 reviews for three decades since the 1988 Trade Act created this

process. In that time, the technologies available for the production and distribution of copyrighted materials have

changed dramatically, and with them, the diversity of methods through which the cop yright industries disseminate

their creative output - including literary works, music, movies and TV programming, video games and software - to

consumers. As evidenced by the growth of revenues, the copyright industries have embraced all means of digital

technologies to produce and distribute their works and recordings, including launching new businesses, services, and

apps to meet consumer demand. More legitimate copyrighted material is now available to consumers, and in more

diversified ways and with more flexible pricing than at any time in history.2

This consumer appetite for copyrighted

materials does not stop at our borders. To meet worldwide demand, the copyright sector, more than any other in the

U.S. economy, has moved aggressively to digitally deliver its products and services across borders, inextricably linking "digital trade" with trade in copyright-protected material.3

As a result, the U.S. copyright industries, as much as any industry, depend on strong rules and practices for

digital trade. The purpose of the Special 301 review process is to help the U.S. Government identify "foreign

countries that deny adequate and effective protection of intellectual property rights or deny fair and equitable market

access to U.S. persons who rely on intellectual property protection."4

The ability of U.S. creators to reach foreign

markets through legitimate digital (and physical) channels is why the Special 301 review of countries - those denying

1

IIPA will file under separate cover a Notice of Intent to Testify at the February 27, 2018 public hearing on Special 301.

2

For example, there are now over 40 million tracks and hundreds of digital music services now available according a 2017 study: IFPI, Music Consumer Insight

Report 2017, available at http://www.ifpi.org/downloads/Music-Consumer -Insight-Report-2017.pdf. For more information on the proliferation of services, see, e.g.,

https://www.mpaa.org/watch-it-legally/ (movies and TV content); http://www.whymusicmatters.com and http://www.pro-music.org/ (music); and

http://www.theesa.com/purchasing-legitimate-digital-copies-games/ (video games). 3

A January 2018 Department of Commerce study, using the latest available year (2016) data, found that charges for the use of intellectual property, which

includes copyrighted content, accounted for $124.5 billion of a total of $403.5 billion of potentially

ICT (information and communications technology)-enabled

services exports, or 31%. It also found that charges for the use of intellectual property accounted for $80 billion out of a

total trade surplus of $159.5 billion of

potentially ICT-enabled services, or over 50%. See, Department of Commerce "Digital Trade in North America" at 4, available at:

4

19 U.S.C. section 2242(a)(1).

IIPA 2018 Special 301 Letter to USTR, February 8, 2018, page ii

legal protection or enforcement, or which are in engaged in activities blocking market access to American creators

and producers - is so critical at this time. The goal of the Special 301 review is, ultimately, to open markets for

American (and other) copyrighted materials in digital and hard copy formats. The goal of the review is not to catalog

trade barriers, nor to admonish foreign governments for deficient laws or enforcement regimes.

For the copyright industries to flourish abroad, foreign markets need to: (i) have copyright laws that meet

high standards of protection; (ii) provide efficient copyright enforcement and sound legal structures to enable healthy

licensing of works and recordings; and (iii) eliminate market access barriers and unfair competitive practices. Markets

with these features also help our trading partners to develop, nurture, and enjoy the benefits of their own local

cultural and creative output, ultimately for the benefit of consumers. Unfortunately, as detailed in this filing, some

rights holders and copyright-dependent services confront deficient local laws, weak enforcement, and market access

barriers (or other discriminatory or unfair competitive practices). These shortcomings enable parties to engage in

piracy, some on a commercial scale, because it is a high-profit, low risk enterprise, unencumbered by the

considerable costs associated with either producing and licensing works, or protecting them against theft.

5

This year, as in past IIPA filings, we provide public comments on the acts, practices and policies of our key

trading partners that present obstacles to achieving the goals of satisfying consumer demands for U.S. creative

materials in foreign marketplaces. This filing recounts, by country, the deficiencies of legal regimes and enforcement

practices, and recommends improvements. Dynamic market conditions and ever-changing technologies continue to

create enormous opportunities, with huge potential to further expand economic growth and creative activity in key

foreign markets. But that potential will only be reached if these protection and enforcement shortcomings, and

market access barriers, can be corrected. IIPA's recommendations include, where possible, emerging best practices

to address these issues and provide successful strategies applicable both to developed and developing country

markets. I. IIPA RECOMMENDATIONS ON DESIGNATIONS AND A SUMMARY OF COUNTRY REPORTS The focus of the 2018 IIPA submission is on markets where IIPA members believe active engagement by

the U.S. Government can reap positive results for creators and the industries that support and invest in them, either

by improving the legal regimes, the efficiency of enforcement, and/or lessening market barriers. The country reports

also contain short summaries of specific obligations taken by each country with the United States in bilateral or

multilateral trade agreements or in other fora, but which remain unfulfilled. Overcoming the challenges to the creative

industries identified in these reports will help to create more good-paying jobs, promote U.S. exports and foreign

sales, and contribute generally to healthy economic growth in the U.S. and abroad. IIPA members appreciate that USTR has made the Special 301 process a positive catalyst for change to

address the challenges faced by the creative industries in key markets around the world. To highlight progress, we

include a section below on "positive developments" in particular countries, identifying specific instances of

improvement. IIPA members also appreciate USTR's efforts to maintain Special 301's focus on improving and

strengthening copyright protection and enforcement in the reported countries, which is clearly what the statute

requires and what Congress intended. IIPA's 2018 Submission includes this letter and two appendices.

In Appendix A, IIPA provides detailed reports on 19 countries that it recommends for designation in the

USTR's Special 301 report this year.

6 5

See, e.g., USTR, 2017 National Trade Estimate Report on Foreign Trade Barriers (March 2017), for the leading U.S. Government report on many market access

and other trade barriers around the world. The report is available at: 6

Country reports and Annex entries were prepared by counsel to the IIPA, including, Kevin Rosenbaum, Dima Budron, Naomi Beckman-Straus, Steven Metalitz

and the undersigned, and are based on information furnished by IIPA's member associations. We thank Pamela Burchette for her

contribution in preparing, IIPA 2018 Special 301 Letter to USTR, February 8, 2018, page iii

In addition,

Appendix A includes an Annex Report combining short summaries on seven countries:

Barbados; Costa Rica; Egypt; Guatemala; Jamaica; Turkey; and Venezuela. Each of these seven countries were

identified in the USTR's 2017 Special 301 Report, and previous IIPA submissions have provided detailed analyses of

legal and enforcement regimes in these countries. Because IIPA members were aware of no new developments that

would lead us to revisit the present designations under Special 301, or IIPA's proposed designations, the Annex

focuses on one or two key issues in short blurbs on these countries. IIPA does not recommend any change in the

Special 301 status for these countries.

7 Appendix B provides an historical chart of Special 301 designations since 1989. 8 Regarding the 19 full country reports, the IIPA's recommendations are as follows:

IIPA 2018 Special 301 Recommendations

Priority Watch List Watch List

Argentina

Chile China India

Mexico

Russian Federation

Taiwan

Ukraine

Vietnam Brazil

Canada

Colombia

Ecuador

Indonesia

Peru

Switzerland

South Africa

Thailand

United Arab Emirates

9 10

II. ABOUT IIPA AND IIPA'S INTEREST IN SPECIAL 301

IIPA is a private sector coalition, formed in 1984, of trade associations representing U.S. copyright-based

industries working to improve international protection and enforcement of copyrighted materials and to open foreign

markets closed by piracy and other market access barriers. Members of the IIPA include Association of American

Publishers (www.publishers.org), Entertainment Software Association (www.theesa.com ), Independent Film &

Television Alliance (www.ifta-online.org), Motion Picture Association of America (www.mpaa.org), and Recording

Industry Association of America (www.riaa.com). Collectively, IIPA's five member associations represent over 3,200

U.S. companies producing and distributing materials protected by copyright laws throughout the world. These include

entertainment software (including interactive video games for consoles, handheld devices, personal computers and

the Internet) and educational software; motion pictures, television programming, DVDs and home video and digital

representations of audiovisual works; music recorded in all formats (from dig ital files to CDs and vinyl), for streaming

and download services, or synchronization in audiovisual materials; and fiction and non-fiction books, education

instructional and assessment materials, and professional and scholarly journals, databases and software in all

formats. producing and distributing this submission, and Alesha Dominique, Albina Gasanbeko va, and Theresa Bowman for reviewing and editing the report. The country reports and Annex contain information which should not be construed as providing legal advice. 7

Venezuela is currently on the USTR's

Priority Watch List

; all others are currently on the Watch List. 8

A number of countries/territories have appeared on a Special 301 list each year since 1989, or for a considerable number of years. A 1994 amendment to

Section 182 of the Trade Act, dealing with identification of "priority foreign countries," provides that USTR must take into account "the history of intellectual

property laws and practices in the foreign country, whether the country has been identified as a priority foreign country pre

viously, and U.S. efforts to obtain

adequate and effective intellectual property protection in that country." Uruguay Round Agreements Act Statement of Administrative Action, reprinted in H.R. Doc.

No. 103-316, vol. I, at 362 (1994). Under these criteria, these countries/territories are particularly vulnerable.

IIPA 2018 Special 301 Letter to USTR, February 8, 2018, page iv In December 2016, IIPA released the latest update of its comprehensive economic report, Copyright

Industries in the U.S. Economy: The 2016 Report, prepared by Stephen E. Siwek of Economists Inc. According to the

report, the "core" copyright industries in the U.S. generated over $1.2 trillion of economic output in 2015, accounting

for 6.88% of the entire economy. The core copyright industries also employed over 5.5 million workers in 2015,

accounting for 3.87% of the entire U.S. workforce, and 4.57% of total private employment in the U.S. These are good

jobs: copyright industry workers earn on average

38% higher wages

than other U.S. employees. The core copyright

industries also outpaced the U.S. economy, growing at an aggregate annual rate of 4.81% between 2012 and 2015,

while the U.S. economy as a whole grew by 2.11%. When factoring in other industries that contribute to the copyright

economy (which together make up the "total" copyright industries), the numbers are even more compelling. Finally,

the report highlights the positive contribution of selected copyright sectors to the U.S. overall trade balance. Given

the importance of digital delivery to the copyright-based industries, this sector has the potential to multiply its export

revenues if our trading partners provide proper copyright-protective environments. In 2015, the copyright sectors

contributed $177 billion in foreign sales and exports, exceeding that of many other industry sectors, including

chemicals, aerospace products and parts, agricultural products, and pharmaceuticals and medicines. 9

Studies such

as these amply demonstrate the contribution of creators, and the copyright-based industries that support them, to the

American economy. They also highlight what is at stake if those creators and industries have to face the additional

hurdles and costs associated with obstacles such as copyright piracy and discriminatory market barriers.

III. KEY CHALLENGES FOR THE COPYRIGHT INDUSTRIES - PROTECTION, ENFORCEMENT AND

MARKET ACCESS ISSUES

The U.S. copyright industries face complex challenges in overseas markets, but they can be organized into

three distinct but overlapping categories:

Legal Reforms:

Copyright and related laws (e.g., civil and criminal codes, and procedural codes) must

meet current and evolving global standards and commitments, in order to adequately and effectively address all

forms of piracy in a fast-changing technological environment.

Enforcement:

These laws must be vigorously and effectively enforced. As a minimum standard, the WTO

TRIPS Agreement requires "effective action" and "remedies that constitute a deterrent" to infringement, through civil,

administrative, and criminal channels, and effective adjudication in the courts. 10

Enforcement tools must robustly

meet current infringement challenges, including those presented by pirate operations based online and/or outside the

jurisdiction, cybercrime syndicates, and organized criminal enterprises; and enforcement resources, training and

capacity building must be deployed at a level commensurate with the scale of the piracy problem.

Market Access: Barriers, investment restrictions, and discriminatory treatment that make it difficult for U.S.

producers and distributors to compete on a level playing field in foreign markets must be dismantled.

9

See Stephen E. Siwek, Copyright Industries in the U.S. Economy: The 2016 Report (December 6, 2016) available at: https://iipa.org/reports/copyright-industries-us-

economy/. Core copyright industries are those whose primary purpose is to create, produce, distribute, or exhibit copyright materials. The link between copyright

protection and economic growth is also well documented by the World Intellectual Property Organization (WIPO) in

its report,

2014 WIPO Studies on the Economic

Contribution of the Copyright Industries: Overview; and the WIPO website now provides links to 49 country studies employing virtually the same agreed-upon

methodology. See,

http://www.wipo.int/export/sites/www/copyright/en/performance/pdf/economic_contribution_analysis_2014.pdf and

http://www.wipo.int/copyright/en/performance/. The WIPO national studies provide the economic underpinnings for efforts to reform copyright law, improve

enforcement, and lower market access barriers. T

he Motion Picture Association Asia Pacific has issued a series of "Economic Contribution of the Film and Television

Industry" studies. The most recent editions of these studies include: China (2015), Australia (2015), Hong Kong (2015), Japan

(2015), Malaysia (2014), India (2013),

Taiwan (2013), Shanghai (2012

), New Zealand (2012), Indonesia (2012), Thailand (2012), South Korea (2012 ). See Motion Picture Association Asia-Pacific,

Research and Statistics, available at:

http://mpa-i.org/research-and-statistics/. There have been other studies prepared, including some in the music and video game

industries. See, e.g., UK Music's The Economic Contribution of the Core UK Music Industry (2013), available at:

http://www.ukmusic.org/assets/general/The_ Economic_Contribution_of_the_Core_UK_Music_Industry___WEB_Version.pdf and

PWC's Economic contribution of the New Zealand music industry, 2012 and 2013 (2014), available at: http://www.wecreate.org.nz/wp-content/uploads/2014/07/PWC-

Music.pdf and Stephen Siwek's Video Games in the 21st Century: The 2017 Report (2017), available at: http://www.theesa.com/wp-

10

See WTO TRIPS Articles. 41, 61. There are many obligations for civil, administrative and criminal remedies in Articles 41 through 61, including for provisional

relief and judicial procedures (e.g., injunctive relief), which are particularly critical for online enforcement.

IIPA 2018 Special 301 Letter to USTR, February 8, 2018, page v Here is a summary, in turn, of the major challenges across the global markets in each of these three categories: (1) legal reforms; (2) enforcement; and (3) market access.

A. LEGAL REFORMS

1. WIPO Internet Treaties

The World Intellectual Property Organization's (WIPO) Copyright Treaty (WCT) and Performances and

Phonograms Treaty (WPPT) set the global minimum standards for providing copyright holders with a full panoply of

exclusive rights in the digital networked environment. The treaties also include an overarching commitment to

deterrent levels of enforcement of those rights online as well as offline. In the 22 years since their adoption, 96

countries have acceded to each of these critical treaties. There are a number of large trading partner countries that

have not acceded to the treaties at all, including: Brazil, India, Pakistan, Saudi Arabia, Vietnam, South Africa and

New Zealand,

as well as smaller markets, such as Bolivia, Kuwait and Lebanon. Many more countries, while they

have joined the treaties, have yet to implement the treaties' obligations into their national laws, including Algeria

(2014), Ecuador (2002), Mexico (2002), and the UAE (2004). IIPA commends Nigeria's accession to the WCT and

WPPT in January 2018; it now faces the task of implementing the treaties into its national laws. The U.S.

Government should make it a priority to encourage all U.S. trading partners both to accede to and fully implement the

WIPO Internet Treaties.

The WIPO Internet Treaties were the catalyst for the global consensus on the need to provide legal

protection to technological protection measures (TPMs) that copyright owners use to control access to their works.

As discussed below, these access controls are key enabling technologies for the range of online digital services that

have brought more creative works than ever to consumers. IIPA urges the U.S. Government to remain vigilant on this

issue, especially in reviewing legislation purporting to implement the WIPO Internet Treaties, and when reviewing

copyright reforms being undertaken in our trading partner countries. In particular, TPMs protections should be

adopted in ways that protect access controls independent of whether there is an accompanying copyright

infringement. Only in this way can effective TPM legislation establish a practical and enforceable anti-circumvention

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