Vanderbilt Journal of Transnational Law

First Page



Increasing losses attributable to the piracy of United States intellectual property rights in international trade have forced domestic policymakers to reexamine how best to protect these rights. This Article examines the United States most recent bilateral strategy to protect intellectual property, the Special 301 action, which creates a virtually mandatory United States Trade Representative (USTR) investigation into states that have inadequate intellectual property laws or that deny fair market access to United States citizens who rely on intellectual property protection. Part One of this Article discusses the historic interaction between United States intellectual property protection and trade measures. Part Two examines the Special 301 mechanism itself. Part Three develops a framework for evaluating the efficacy of the Special 301 mechanism as a bilateral trade weapon to secure the protection of United States intellectual property rights abroad and argues that the USTR's application of Special 301 to date represents an attempt to exercise a significant degree of administrative discretion unauthorized by Special 301's governing statutory framework. The Article concludes with a suggestion that Congress should amend the Special 301 action to provide statutory authority for the highly discretionary approach adopted by the USTR.