What You Won't Find in the U.S. Special 301 Report

Every year, the United States publishes a report on countries that, in the opinion of the U.S. Trade Representative (USTR), fail to give “adequate and effective” protection to U.S. holders of intellectual property rights. This Special 301 Report names and shames nations that do not meet a vague and impossibly high standard of IP enforcement, and implies that the U.S. and its trade partners should punish them for failing to enact more draconian copyright, patent, and trademark restrictions. The Special 301 Report is the result of an opaque process that directly manifests the desires of private industry, like Hollywood studios. It is used as a bullying tactic to push countries into adopting stronger IP laws, regardless of whether such laws are in the best interests of the citizens of that country.

But the Special 301 Report fails to tell the whole story about copyright across the modern online world. It doesn’t talk about the damage that restrictive copyright can do to artists and researchers in the digital era. It ignores how innovators have benefited from a more balanced enforcement system and generous exceptions—most famously in the United States itself.

On the Web, the error code 404 shows browsers that something is missing. EFF believes that in the Internet era, the Special 301 Report is missing real stories from the countries that the Special 301 condemns. Our intention for this report is to show what’s missing from Special 301 and give some balance to the USTR’s biased review of global intellectual property laws by highlighting the arguments for balanced copyright, patent, and trademark law worldwide.

EFF’s Special 404 Report includes a selection of case studies from across the globe showing how overly broad intellectual property laws stifle access to cultural artifacts, artistry, and innovation. Our report also showcases examples in which flexible fair use interpretations have benefited the community, culture, and economy of a country. This report is not an exhaustive analysis of each country listed in the Special 301 Report. Rather, our report is designed to provide insightful case studies that will inform a larger conversation about how the USTR’s report is fundamentally defective.

Our report concludes by outlining some of the flaws of the Special 301 Report, including issues around transparency, balance, and legality.

Many people look to the USTR’s Special 301 Report when analyzing business relationships in a new country or when analyzing the intellectual property laws of a country for other purposes. Our report is designed as a counterpoint—ensuring that the one-sided narrative of the USTR is challenged with examples that prioritize access to culture and new forms of innovation over the financial interests of a handful of U.S. corporate rights holders.