intellectual property law – Centre on Knowledge Governance

Limitations and Exceptions in the U.S. Special 301 Report 2025

Sean Flynn, Lokesh Vyas and Luca Schirru / 9 May, 2025

The first Special 301 Report under the Trump Administration was released last month: 2025 Special 301 Report (final).pdf. The report always gives insight into the administration’s trade priorities1. How the Trump Administration will approach intellectual property matters is a bit of a mystery with its trade policy positions in the campaign taking conflicting approaches to the issue.2 The first Trump Administration Special 301 Report suggests that copyright policy is returning to its norm at USTR, with complaints about overbroad copyright exceptions, including for the circumvention of technological protection measures, raised against many of the countries on its warning lists. Countries Named and Blamed Twenty-six countries are named on in the report, with no country being listed as a Priority Foreign Country — which is the level at which direct threats of trade retaliation are raised. But the Report keeps the threat alive, stating: “Over the coming weeks, USTR will review those developments against the benchmarks established in the Special 301 action plans for those countries”.3 If countries fail to address U.S. concerns, the USTR may take actions, including enforcement measures under Section 301 of the Trade Act or dispute settlement procedures under the WTO or other trade agreements. Eight countries are on the Priority Watch List: Argentina, Chile, China, India, Indonesia, Mexico, Russia, and Venezuela. Eighteen countries are on the Watch List: Algeria, Barbados, Belarus, Bolivia, Brazil, Bulgaria, Canada, Colombia, Ecuador, Egypt, Guatemala, Pakistan, Paraguay, Peru, Thailand, Trinidad and Tobago, Türkiye, and Vietnam. Of the countries listed in the report, two countries on the Priority Watch List (India and Indonesia) and four countries on the Watch List (Canada, Ecuador, Thailand, and Vietnam) are subject to complaints about “overly broad exceptions”: Priority Watch List India: The Report alleges that Section 31d of the Copyright Act, 1957, which governs statutory licensing for the broadcasting of literary and musical works, as well as sound recordings, could be interpreted to allow statutory licensing for interactive online streaming, which, according to the report, “would have severe implications for right holders who make their content available online.” The report also rebukes “overly broad exceptions for certain uses” that raise “concerns about the strength of copyright protection in India”. However, the report does not name those exceptions. Finally, it complains that India has not made sufficient amendments to its Copyright Act to to protect technological protection measures and rights management information to comply with the WIPO Internet Treaties (i.e., WCT and WPPT).4 Indonesia: The report complains of “overbroad exceptions to provisions that prohibit the circumvention of technological protection measures” and urges Indonesia to consider amendments to its copyright law.5 Watch List Canada: The Report states that stakeholders reported issues with a “broad interpretation of the fair dealing exception for the purpose of education, which was added to the copyright law in 2012, as well as the relevant case law on the subject, has significantly damaged the market for educational authors and publishers”.6 Ecuador: The Report raises “concerns raised by the U.S. Government and various stakeholders on issues related to overly broad or vaguely defined copyright exceptions and limitations”.7 Thailand: The report urges Thailand to consider reviewing its copyright law to address several issues, including what is called “overly broad exceptions to provisions that prohibit the circumvention of technological protection measures”.8 Vietnam: Concerns were raised about “overly broad exceptions to copyright” and the implementation of the WIPO Internet Treaties, “including protections against circumvention of technological protection measures and certain acts affecting rights management information”.9

The Unclear Status of Copyright Exceptions and Limitations in the UK-India Free Trade Agreement

On May 6, 2025, the United Kingdom (UK) and India announced that they had reached agreement on a bilateral free trade deal that includes a chapter on intellectual property.However, no agreement text was released. Rather, the UK Department for Business & Trade issued a summary of the agreement’s terms, and the summary acknowledged that “work is continuing to finalise the legal text and resolve the last issues.” In other words, at this point there is just an agreement to agree, rather than a real agreement. According to the summary, the IP chapter “will support our economies through effective and balanced protection and enforcement of IP rights.” The chapter will cover copyright and related rights, designs, trademarks, geographical indications, patents, and trade secrets, as well as the enforcement of IP rights. The summary provides little detail concerning copyright and related rights. It simply states that India will also commit to engaging on aspects of copyright and related rights, addressing the interests of UK creators, rights holders, and consumers. This includes around public performance rights and artist’s resale rights, which acknowledge the importance of royalty rights. India will also conduct an internal review of their copyright terms of protection. Further, the summary notes that the chapter “will not commit the UK to domestic legislative change, nor will it undermine the UK’s own IP system or our international positions on IP.” Significantly, the summary is silent on copyright exceptions and limitations. In 2022, a draft of the UK’s proposed text for the IP chapter was leaked. The language concerning copyright exceptions and limitations was limited to the Berne Three Step Test and other treaties: Article H.7: Limitations and Exceptions 1. Each Party may introduce limitations or exceptions in its domestic law to the rights provided for in this Section [H]. but shall confine such limitations or exceptions to certain special cases that do not conflict with a normal exploitation of covered subject matter, and do not unreasonably prejudice the legitimate interests of the right holder. 2. This Article is without prejudice to the limitations and exceptions to any rights permitted by international agreements such as the TRIPS Agreement, the Berne Convention, the Rome Convention, the WCT. or the WPPT. The summary asserts that the agreement would support the economies of the UK and India through “balanced protection” of IP rights, but nothing in the summary, or the UK’s 2022 draft text, reflects balanced protection with respect to copyright. The Three Step Test, by itself, is too ambiguous to provide meaningful balance. Hopefully India insisted upon language that clarified that both parties had the flexibility to adopt more open-ended fair dealing or fair use provisions, like those recently adopted by former British colonies such as Singapore, Malaysia, and Nigeria. For example, the agreement could include language similar to Article 11.18 of the Regional Cooperation for Economic Partnership (RCEP), signed in 2020. That language provides that 3. Each Party shall endeavour to provide an appropriate balance in its copyright and related rights system, among other things by means of limitations and exceptions consistent with paragraph 1, for legitimate purposes, which may include education, research, criticism, comment, news reporting, and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled. 4. For greater certainty, a Party may adopt or maintain limitations or exceptions to the rights referred to in paragraph 1 for fair use, as long as any such limitation or exception is confined as stated in paragraph 1. India initially participated in the RCEP negotiations, but withdrew in 2019 over issues unrelated to intellectual property.