Every year the United States Trade Representative releases a “Special 301 Report“. That report contains a “watch list” of countries that configure their copyright, patent, design and associated laws in ways that the USTR does not approve. This unilateral practice has continued despite criticisms that it is inconsistent with the WTO-TRIPS Agreement (1).
The 2011 301 Report was released on 3 May this year. There is almost no mention of African countries in the 2011 Report, although historically African countries including South Africa have been cited. Why not? What does that mean for African countries?
One way that African leaders might respond would be to congratulate themselves on their dutiful compliance with the demands of corporations that they change national laws to suit those corporations. East African countries such as Kenya have devoted considerable resources to “anti-counterfeiting” legislation and enforcement that goes well beyond any similar laws or investments in wealthier countries.
Another response would see the 2011 report and watch list as supporting negotiating positions taken by the USTR in the negotiation of the Trans Pacific Partnership. New Zealand and Canada are both participants in the negotiations and both are listed on the watch list, apparently for issues around pharmaceuticals. Over the last few years Canada has reacted to being placed on the list by rejecting the validity of the process. The listing of New Zealand has been met with considerable anger.
Rejection of the legitimacy of the process is a change from the historical patterns of compliance by countries listed. Israel, which was taken off the list in 2010 and then put back onto the list in 2011, has alsoreacted angrily.
The primary complaint in the 2011 301 report about Canada and Israel is their non compliance with the demands of multinational pharmaceutical corporations that the corporations be entitled to use “data exclusivity” to prevent generic manufacture of medicines after the patent terms expire.
Another response would regard the omission of Africa from the 2011 301 Report as indicative of a lack of political power in post recession global trade. Experienced trade law commentators have pointed out the protectionist trend in so called
pluri-lateral trade agreements such as ACTA.
The trend is towards OECD countries negotiating a consensus amongst themselves and then presenting other countries with a ‘take it or leave it’ regime.
There may be good reason that issues in Africa are not currently pre-occupying powerful lobby groups in the same way that they have in the past. AIDS drugs have been a source of controversy in the past, however procurement of AIDS drugs is so dominated by US governmental and non-governmental agencies that Africa provides a useful subsidy to pharmaceutical companies through the likes of PEPFAR.
In the ICT sector the lack of Internet connectivity in Africa means that the kind of measures currently demanded by certain lobby groups , such as intermediary liability, simply aren’t applicable in most African countries. A necessary result of lack of broadband is that laws that require broadband providers to disconnect users because of allegations of copyright infringement won’t work. Africans are already disconnected.
This suggests that absence from the watch list not an achievement but rather a proxy for under-development. Perhaps against the prevailing “wisdom”, African trade ministries should be more comfortable about a strong appearance in the 301 report, and less comfortable about the reasons for non appearance.
(1) Inconsistency between Section 301 and TRIPS: Counterproductive with Respect to the Future of International Protection of Intellectual Property Rights, The, Monten, Lina M. 9 Marq. Intell. Prop. L. Rev. 387 (2005)