R 301008Z JAN 09
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
AMEMBASSY TRIPOLI

UNCLAS STATE 008410 
 
 
E.O. 12958: N/A 
TAGS: ECON ETRD KIPR
SUBJECT: 2009 SPECIAL 301 REVIEW:  REQUEST FOR POST INPUT 
 
¶1.  SUMMARY AND ACTION REQUEST:  THIS IS AN ACTION REQUEST. 
Post input for the annual 2009 Special 301 review is 
requested no later than 10:00 a.m. (Washington, D.C. time) 
on March 2, 2009.  All Posts whose host countries/economies 
have been proposed by the private sector for inclusion on 
the Special 301 Watch List (WL), Priority Watch List (PWL), 
Priority Foreign Country (PFC), or Section 306 should 
provide an information cable addressing intellectual 
property protection and enforcement, including the issues 
raised in the submission.  In addition, for Posts whose 
host countries/economies have been cited by the private 
sector in other categories not covered by Special 301, such 
as Special Mention or Dispute Settlement, Posts should also 
provide an information cable. 
 
¶2.  The deadline for private sector submissions is 
February 17, 2009 and they will be available on the State 
Intranet 2009 Special 301 website 
(http://eb.state.gov/shortcut.cfm/CHJH) as of February 20. 
Private sector submissions will also be available to the 
public at http://www.regulations.gov, docket number USTR- 
2009-0001, as of February 18, 2009.  Posts are also 
requested to inform host governments/authorities of the 
launch of the 2009 Special 301 annual review process, as 
well as the posting of private sector submissions at 
http://www.regulations.gov.  The Special 301 Committee 
welcomes submissions from foreign governments/authorities 
concerning their potential placement on the Special 301 
list by 10:00 a.m. (Washington, D.C. time) on March 2, 
¶2009.  Such submissions by foreign governments/authorities 
are welcome, but not required, and should be posted to 
http://www.regulations.gov.  See attached Federal Register 
Notice for instructions that foreign 
governments/authorities should follow to provide a Special 
301 Submission (note: these are new procedures that USTR 
is using for the first time).  END SUMMARY AND ACTION 
REQUEST. 
 
 
BACKGROUND 
 
¶3.  Each spring, USTR issues the "Special 301 Report" to 
identify countries/economies that deny adequate and 
effective protection to intellectual property rights or 
deny fair and equitable market access to U.S. persons who 
rely on intellectual property protection.  The U.S. 
Government (USG) makes its decisions based on private 
sector submissions, foreign government/authority 
submissions, Post input, and other information.  On 
January 23, 2009, USTR published a Federal Register notice 
inviting the private sector and foreign 
government/authority submissions on the practices of U.S. 
trading partners to be reviewed under the Special 301 
provisions.  The text of the notice may be found at 
http://frwebgate4.access.gpo.gov/cgi- 
bin/TEXTgate.cgi?WAISdocID=003572222071+4+1+0 &WAISaction=r 
etrieve. 
 
Post input must be received by March 2, 2009 in order for 
the views to be taken fully into account in the interagency 
review process.  Posts may send supplemental cables until 
April 1, 2009 if additional information becomes available 
during the review process.  Please note that only Posts in 
countries/economies proposed by the private sector for 
inclusion in the 2009 Special 301 list or for other 
categories, such as Special Mention or Dispute Settlement, 
are required to respond to this action request.  Other 
posts, however, are welcome to make submissions should they 
deem such submissions to be relevant to the Special 301 
review.  Post comments should be unclassified wherever 
possible to facilitate use by the Special 301 Committee. 
If classified information is relevant, Posts are asked to 
consider sending separate cables.  Posts are also asked to 
identify earlier, relevant cables in the reference line. 
 
¶4.  Availability of Public Comments on State Intranet 
Special 301 Website:  Private sector submissions and lists 
of nominated countries/economies will be available to Posts 
on the State Intranet Special 301 website on February 20, 
¶2009.  All public submissions can be accessed at the 
following URL: 
http://eb.state.gov/index.cfm?fuseaction=publ ic.display&sho 
rtcut=CHJH  as they become available, unclassified Post 
submissions, foreign government/authority submissions, USTR 
papers and other relevant correspondence will also be 
available on this Intranet website for internal State use 
only.  Private sector submissions will also be available to 
the public at http://www.regulations.gov, docket number 
USTR-2009-0001, as of February 18, 2009. 
 
¶5.  Information to be considered by Posts:  Posts are asked 
to address the following IPR issues, to the extent 
applicable, in reporting cables:  countries'/economies' 
implementation of their obligations in the WTO Agreement on 
Trade-Related Aspects of Intellectual Property Rights 
(TRIPS); countries'/ economies' implementation of their 
obligations under other international agreements to which 
the United States and the foreign country/economy are 
parties (including, where applicable, free trade agreement 
(FTA) obligations); efforts on data protection, 
specifically protection of proprietary pharmaceutical and 
agricultural test data against unfair commercial use; 
efforts against the production, distribution, import, and 
export of counterfeit and pirated goods, including efforts 
against the piracy of optical media (music CDs, video CDs, 
CD-ROMs, and DVDs); efforts against Internet piracy (e.g. 
illegal downloads, hosting of websites containing pirated 
materials); efforts by foreign governments/authorities to 
prevent the unauthorized procurement/use of computer 
software; any specific information available on enforcement 
efforts - civil, criminal, and administrative, as well as 
border enforcement by customs authorities - including 
statistics, if available; and any other relevant IPR issues 
specific to the foreign government/authority. 
 
¶6.  Decision-Making Process:  From February 2009 through 
April 2009, the USG interagency Special 301 Committee will 
review the status of intellectual property protection and 
enforcement in specific countries/economies.  The Committee 
will examine the private sector and foreign 
government/authority submissions, Post input, the National 
Trade Estimate reports and other materials, such as 
information obtained about select countries during the 
Special 301 Initiative, to determine which 
countries/economies should be identified as denying 
adequate and effective protection of intellectual property 
rights or denying fair and equitable market access to U.S. 
persons who rely on intellectual property protection.  USTR 
will host interagency meetings to discuss all available 
information and application of the Special 301 criteria to 
foreign countries/economies.  Following those meetings, the 
Special 301 Committee will formulate recommendations to the 
Trade Policy Staff Committee (TPSC).  During the review, it 
is possible that Washington will request additional 
information/action from Posts, depending upon the direction 
of the interagency discussions.  Throughout this process, 
it is important that deliberations remain confidential and 
that EEB/TPP/IPE serve as the sole conduit for 
communications between the State Department and other 
agencies. 
 
¶7.  Timing of the Special 301 Announcement:  USTR will 
announce the results of this year's review on or about 
April 30.  At that time USTR will make available to the 
public the full report together with a press release that 
contains the Special 301 list and summarizes the results of 
the review.  As in the past, EEB/TPP/IPE expects to notify 
Posts of the decisions prior to USTR's announcement so 
Posts can notify host governments/authorities. 
 
¶8.  Contact Information:  Posts are asked to direct any 
questions or input to Jennifer Choe Groves, Office of 
Intellectual Property and Innovation, USTR at 202-395-4510 
- Jennifer_groves@ustr.eop.gov; and State EEB/TPP/IPE, 
Timothy R McGowan.  State's Special 301 Coordinator is 
Timothy R McGowan of EEB/IPE - 202-647-2291 - 
McGowanTR@state.gov. 
 
 
STATUTORY BASIS FOR SPECIAL 301 
 
¶9.  Pursuant to Section 182 of the Trade Act of 1974, as 
amended by the Omnibus Trade and Competitiveness Act of 
1988 and the Uruguay Round Agreements Act (enacted in 1994) 
(Special 301), under Special 301 provisions, USTR must 
identify those countries that deny adequate and effective 
protection for IPR or deny fair and equitable market access 
for persons that rely on intellectual property protection. 
USTR must decide whether to identify countries within 
thirty days after the issuance of the annual National Trade 
Estimate Report (NTE).  USTR normally announces the results 
of the Special 301 Review on or about April 30. 
 
¶10.  Countries/economies that have the most onerous or 
egregious acts, policies, or practices and whose acts, 
policies, or practices have the greatest adverse impact 
(actual or potential) on the relevant U.S. products must be 
designated as Priority Foreign Countries. 
 
¶11.  Priority Foreign Countries are potentially subject to 
an investigation under the Section 301 provisions of the 
Trade Act of 1974.  USTR may not designate a 
country/economy as a Priority Foreign Country if it is 
entering into good faith negotiations or making significant 
progress in bilateral or multilateral negotiations to 
provide adequate and effective protection of IPR. 
 
¶12.  USTR has created a Priority Watch List (PWL) and Watch 
List (WL) under Special 301 provisions.  Placement of a 
trading partner on the Priority Watch List or Watch List 
indicates that particular problems exist in the 
country/economy with respect to the protection or 
enforcement of intellectual property rights or market 
access for persons relying on intellectual property 
protection.  Countries/economies placed on the PWL are the 
focus of increased bilateral attention concerning the 
problem areas. USTR's 2008 Report can be found at 
http://www.ustr.gov/Document_Library/Reports_ Publications/2 
008/2008_Special_301_Report/Section_Index.htm l?ht= 
 
¶13.  In addition to an overall assessment of the IPR 
climate, Posts are asked to gather information on some 
specific areas of particular concern: 
 
A) TRIPS Implementation, FTA Implementation, and Other IP- 
Related Issues:  Washington is interested in an ongoing 
review of WTO Member countries'/economies' implementation 
of their obligations under the Agreement on Trade-Related 
Aspects of Intellectual Property (TRIPS). 
 
B) Data Protection:  Efforts on data protection, 
specifically to protect undisclosed test data submitted by 
pharmaceutical and agricultural chemical companies for 
marketing approval against unfair commercial use, as well 
as whether marketing approvals have been granted for 
generic copies of patent infringing pharmaceutical 
products. 
 
C) Enforcement:  Adequate and effective enforcement against 
IP infringement of all types, including piracy and 
counterfeiting, and including effective border enforcement 
by customs authorities, is extremely important to the USG 
and U.S. industries.  Posts are asked to gather any 
statistical or other quantitative IP enforcement 
information that is available and information on 
legislative or operational initiatives, and to make an 
assessment of political will in this critical area. 
 
D) Notorious Markets:  Noting that global piracy and 
counterfeiting thrive in part due to large marketplaces 
that deal in infringing goods, USTR in 2006 began to list 
"notorious markets" in the Special 301 Report.  Posts are 
requested to identify markets that should be considered for 
inclusion on or removal from this list.  The list includes 
both virtual (online) markets and traditional physical 
markets.  A market may be listed when information reviewed 
in the Special 301 process points to it as a significant 
example of a marketplace that has been the subject of IPR 
enforcement action, or indicates that it may merit further 
investigation for possible IPR infringements, or both. 
 
E)  Internet Piracy:  Washington would appreciate Post 
reports on the status of Internet piracy and host 
government actions to combat such piracy on the Internet. 
 
F) Production, Import, and Export of Counterfeit Goods: 
Efforts against the production, import, and export of 
counterfeited goods, including products that contain 
protected trademarks. 
 
G) Optical Media Piracy (CDs, VCDs, DVDs):  Washington has 
urged additional countries/economies, particularly those 
with a domestic or regional problem of significant levels 
of optical media piracy, to adopt regulations similar to 
those passed in Hong Kong, Macau, Bulgaria, Malaysia, and 
Ukraine.  These regulations establish controls on, and 
require licensing of, optical media manufacturing capacity 
and equipment and material inputs for the purpose of 
controlling domestic production and export of pirate 
optical media.  Such regulations would mandate, for 
example, the use of source identification (SID) codes on 
locally manufactured CDs. 
 
H) Use/Procurement of Government Software:  In October 1999 
President Clinton issued an Executive Order requiring all 
government software use to comply with U.S. federal law and 
international agreements. Washington continues to urge 
countries/economies under review to follow suit, and to 
ensure that their use of software complies with national 
and international standards of copyright protection. 
 
I) Treaties:  Washington also would appreciate Post reports 
on the status of host government actions to ratify and/or 
implement the 1996 WIPO Copyright Treaty (WCT) and WIPO 
Performances and Phonograms Treaty (WPPT). 
 
 
¶14. MINIMIZE CONSIDERED. 
 
 
CLINTON