Strategies for Combating Counterfeiting and Piracy (The USA Perspective)

On 12 January 2018, the Office of the United States Trade Representative (USTR) published the 2017 Out-of-Cycle Review Notorious Markets List (a.k.a. Notorious Markets List) and, ten days later, the European Commission launched the public consultation on Counterfeit and Piracy Watch-List. The TechieKat will review in this post the highlights of the Notorious Markets List publication; a review of public consultation on Counterfeit and Piracy Watch-List will follow in a separate post.

Background

Fighting against Counterfeiting
and Piracy

The Notorious Markets List was once published as part of the Special 301 Report, beginning in 2006; however, since February 2011, it is published separately. The first order of business is to not be confused by these two publications, which are now separate and distinct.

The Special 301 Report provides a broader analysis regarding the state of IPR protection and enforcement (the so-called “climate”) in various USA national trading partners. The Notorious Markets List, on the other hand, addresses both online markets and physical markets, which reportedly facilitate or otherwise benefit from substantial piracy and counterfeiting, the information for which is mainly based on the results of the Public Consultation requested by the USTR.

On 28 April 2017, the USTR published the 2017 Special 301 Report. The annual report (published at the end of April each year) included the following 11 countries on the Priority Watch List for having unacceptably inadequate levels of the IPR protection and enforcement: Algeria, Argentina, Chile, China, India, Indonesia, Kuwait, Russia, Thailand, Ukraine, and Venezuela. Meanwhile, the following 23 countries were included on the Watch List for having significant issues related to the effectiveness of the IPR protection and enforcement: Barbados, Bolivia, Brazil, Bulgaria, Canada, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Greece, Guatemala, Jamaica, Lebanon, Mexico, Pakistan, Peru, Romania, Switzerland, Turkey, Turkmenistan, Uzbekistan, and Vietnam.

On 12 January 2018, the 2017 Notorious Markets List was published. It identifies online markets such as DHgate, Sci-hub, VK and the Pirate Bay (see below), and physical markets located in China, Italy, Spain and Latin America (see below), reportedly engaged in the trade of illicit goods (pirated and counterfeit) that cause severe harm to the USA economy. The entire List can be reviewed here.

The Findings

Considering the rise of online infringement over the last few years, it is not a surprise that the 2017 Notorious Markets List now contains more online than physical markets. Nevertheless, physical markets remain as the “primary distribution channel for counterfeits”. During the Public Consultation requested by the USTR, copyright-based industries reported more online markets than physical markets, while trademark-based industries reported both types of markets.

Some of the online markets identified on the 2017 Notorious Markets List are the following: apps and add-ons for illicit streaming devices (ISD), which are understood as the “combination of media boxes, set-top boxes, or other devices with piracy applications (apps) that allow users to stream, download, or otherwise access unauthorized content from the Internet” (kuaikan; tvbroswer; tvplus); bitTorrent websites (rapidgator.net; rarbg.to; rutracker.org; thepiratebay.org; torrentz2.eu); books and music download websites (libgen.io; sci-hub.io; mp3va.com); cyberlockers, which are “third parties that provide online file-storing and file-sharing services” (1fichier.com; 4shared.com; cloudtime.to; dopefile.pk; uploaded.net); e-commerce platforms (dhgate.com; indiamart.com; taobao.com); “free-to-play” video games website (firestorm-servers.com); illegal online pharmacy website (rebel); social networking website (vk.com); stream-ripping website (convert2mp3.net); and streaming websites (fmovies.is; gostream.is; kinogo.club; movie4k.tv; openload.co; repelis.tv).

The physical markets identified on the 2017 Notorious Markets List are located in the following countries: China (specifically in Beijing, Shenzhen, and Guangzhou); Argentina (La Salada, Buenos Aires); Canada (Pacific Mall, Ontario); India (Tank Road, Delhi); Indonesia (Mangga Dua, Jakarta); Italy (Mercato dei venerdi, Ventimiglia); Mexico (Tepito, Mexico City; and Mercado San Juan de Dios, Guadalajara); Paraguay (Ciudad del Este); Spain (Els Limits de La Jonquera, Girona); Turkey (Grand Bazaar, Istanbul); United Arab Emirates (DragonMart and Ajman China Mall); and Vietnam (in Hanoi and Ho Chi Minh City).

Measures

The 2017 Notorious Markets List includes measures for stepping up the fight against counterfeiting and piracy. Regarding online markets, they are encouraged to improve takedown procedures, implement proactive measures and cooperate more closely with IPR holders. For physical markets, the implementation of more effective border enforcement measures and asset forfeitures is singled out.

Improvements following the publication of the 2016 Notorious Markets List

The 2017 Notorious Markets List also sets out a summary of improvements that have taken place following the publication of the 2016 Notorious Markets List, such as the shut-down of previously listed online markets (youtube-mp3.org, Putlocker, and Extratorrent), the end of Registrar accreditation by the Internet Corporation (ICAAN) for Nanjing Imperiosus Technology Co. Ltd, which “provided domain name services to illegal online pharmacies”, and the publication of the Infringing Website List by the London Police Intellectual Property Crime Unit (PIPCU) with the goal of cutting off advertising revenues to infringing websites.

Stayed tuned for the second part of strategies for fighting against counterfeiting and piracy from an EU perspective!