2013 USTR Special 301 report - some improvement for Southeast Asian countries


The 2013 US Trade Representative’s Special 301 Report is out and, for Southeast Asia, the news is generally one of improvement.

First, Indonesia remains on the Priority Watch List. While there have been some educational and awareness steps, the copyright law (under amendment) remains deficient, but the real problems concern enforcement. Criminal remedies are weak, with inefficiencies in judicial and prosecutorial systems including a lack of transparency and deterrent sentences. There are specific industry concerns over internet infringement, media box piracy (preloaded disks and drives of content), product counterfeiting (especially pharmaceuticals), copyright piracy, cable theft, trade secret protection for agrochemical and pharmaceutical products, and compulsory licensing of pharmaceutical products. Interestingly, it refers to collaboration on an action plan to improve IP rights protection and enforcement against the high levels of IP rights infringement in Indonesia.   

Second, Thailand also remains on the Priority Watch List - but only by a whisker as a possible downgrade is mentioned. There is praise for the Anti-Money Laundering Act, which includes IP rights offences as a predicate crime, and the launch of the National IP Rights Centre for Enforcement. The police and Customs are well regarded by IP holders. One key barrier seems to be legislative delay in tacking landlord liability, unauthorised film camcording, ex officio customs authority, implementing the WIPO Internet Treaties and establishing improved legal mechanisms to address internet infringement.

The report cites that IP violation remains widespread despite the improvements, especially for cable and satellite signal theft. The report also mentions the IP issues surrounding access to medicine. Overall, the balance seems right, with Indonesia facing more fundamental problems, while the more sophisticated Thai system faces some more complex challenges. Improving an IP regime is not a defined step, but more of a process over time.

Third, the Philippines is on the Watch List. It has finally passed new copyright laws and customs procedures. Its challenges remain over internet piracy, anti-evergreening rules in the patent law, poor protection of undisclosed confidential information and strengthening enforcement (such as criminal enforcement and predictability for search and seizure orders). However, there are many positive aspects in the report, such as Madrid accession, illegal camcording reduction, improved court procedural rules and the efforts of IP officials in the government. There is even a suggestion of a further review if the situation improves.

Finally, Vietnam gets a mixed report and remains on the Watch List. Despite a flurry of new rules, many areas remain weak. Internet piracy is growing and needs to be addressed, physical counterfeit goods remain widely available, book piracy, software piracy (including on government computer systems), and cable and satellite signal theft continue to be widespread. Overall, IP enforcement progress is low, with few criminal cases. Capacity restraints of enforcement agencies are weak.

It is worth mentioning that the Philippines is making some genuine reforms, driven by a proactive IP office, but the latter struggles to influence more distant ministries. Vietnam's problems are more emerging, as IP rights commerce develops new challenges while the old ones are growing as the economy develops. Things may worsen before they improve.

Nick Redfearn, Rouse, Indonesia

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