Opinion - Intellectual property must be a North Star in Trump's trade deals

Yahoo

30-05-2025

The last article of the U.S.-United Kingdom trade deal raises the important issue of intellectual property.
It's admittedly a placeholder. The obligations will have to be worked out later. But if there's serious intent behind it, this aspiration should inform the template for Trump's upcoming bilateral negotiations.
In Trump's America First Trade Policy memo from February, he called for a study to identify 'any unfair trade practices by other countries and recommend appropriate actions to remedy such practices.' He has two that do this: the 2025 National Trade Estimate Report and the 2025 Special 301 Report.
The latter document, which lost its voice during the Biden administration, is back. It's once again touting the fact that intellectual property directly or indirectly accounts for 63 million high-paying jobs and 41 percent of U.S. GDP. And it 'names and shames' countries that don't sufficiently protect and enforce American intellectual property.
China and India were named and shamed. They have been 'priority watch list' countries for years and represent markets with the most significant intellectual property issues. Trump is negotiating with both countries.
Start with China. The Special 301 Report spends 10 pages detailing concerns. For example, China is the world's largest source of counterfeit goods and has rampant online piracy.
Other challenges are much more nuanced. For example, Beijing's party-controlled Chinese courts have issued anti-suit injunctions to curtail foreign litigation over standard essential patents.
This gives China undue influence in setting 'fair, reasonable and nondiscriminatory' royalty rates on 5G and countless other technologies. Not just in China, mind you, but in other countries.
The U.S.-China Joint Statement signed on May 12 says that the countries 'will establish a mechanism to continue discussions about economic and trade relations.' Trump should hold China accountable for upholding the Phase 1 deal he signed with Beijing, and push for more.
The deal covers intellectual property commitments, many of which China has not implemented, particularly with respect to patent enforcement, patent term extensions and patentability standards. Trump should also seek commitments that build on the Phase 1 deal such as regulatory data protection, which would make it more difficult for China to backslide.
Then there's India. The U.S. and India are negotiating a multi-phase bilateral trade deal. To fulfill President Trump and Prime Minister Modi's vision of more than doubling total bilateral trade to $500 billion by 2030, intellectual property issues must be comprehensively addressed early and upfront.
Yet, as the Special 301 Report concluded, 'India remains one of the world's most challenging major economies with respect to the protection and enforcement of IP.'
India needs to commit to intellectual property protections comparable to those that Indian innovators enjoy in the U.S. Early commitments would signal India's seriousness about the negotiations and its intent to be a reliable partner.
Finally, consider the European Union. Like the U.K., it has a high-standard intellectual property regime. Unlike China and India, it isn't written up in the Special 301 Report. But the National Trade Estimate Report records that U.S. exporters have many concerns.
Some ring familiar, like copyright protections under the Digital Single Market Strategy. Others are more nuanced, such as the evaluation of risk under the EU's new AI Act, which might violate intellectual property protections on source code and trade secrets, for example.
Then there are the legislative proposals that would exploit biopharmaceutical-related intellectual property and other incentives to achieve localization objectives and expand the use of compulsory licenses.
Online piracy, domestic content and language requirements are also evident across various EU members. More generally, Brussels's preferences on digital trade don't line up with those of the U.S., as originally penned by Trump in his first term.
There's a ready-made forum in which to negotiate these gaps: the U.S.-E.U. Trade and Technology Council. The council is meant to spur transatlantic cooperation and competitiveness, but it has faltered in recent years. An upgraded mandate to address intellectual property, along with its emphasis on digital technologies, would help in this regard.
If Trump's trade deals are to be successful, they must prioritize the protection and enforcement of intellectual property. As the Department of Commerce observed, 'the entire U.S. economy relies on some form of IP because virtually every industry either produces or uses it.'
Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service, Georgetown University.
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