New US IP Enforcement Plan May Have International Impact

IP Watch
The Obama administration’s release of its national intellectual property strategy yesterday was welcomed by many groups representing businesses and intellectual property holders who said it could serve as an example to other countries.

The strategy encompasses 33 enforcement strategy action items that fall within six categories of focus for the United States: (1) leading by example; (2) increasing transparency; (3) ensuring efficiency and coordination; (4) enforcing our rights internationally; (5) securing our supply chain; and (6) building a data-driven government.

“Combating counterfeiting and piracy requires a robust federal response,” says the introduction of the report, which was released by President Obama’s intellectual property enforcement coordinator (IPEC), Victoria Espinel, who was joined by US Trade Representative Ron Kirk, Attorney General Eric Holder, Vice President Joe Biden, Commerce Secretary Gary Locke and Homeland Security Secretary Janet Napolitano. “Our status as a global innovation leader is compromised by those countries who fail to enforce the rule of law or international agreements, or who adopt policies that disadvantage American industries.”

“I say to those who are suffering from infringement: ‘Help is on the way,’” Espinel said during a press conference releasing the report.

Watch a video of the press conference here.

Biden said a comprehensive approach thus far has been lacking in this country, further alluding to the fact that up until now, there has been no proper cracking down on piracy at the federal level.

“Piracy hurts. It hurts our economy,” as well as citizens’ health and safety, he added, taking a hardline position. “Whether we’re talking about fake drugs that hurt instead of help the patient or knockoff car tires that fall apart at 65 miles per hour that cause injury or death, counterfeits kill. Counterfeits kill. There’s a reason why they’re counterfeit – they don’t know how to do it in the first place. It also, to state the obvious, stifles creativity.”

He continued: “Piracy is theft – clean and simple. It’s smash and grab. … Intellectual property is no different.”

While acknowledging the need to control IP infringement, public interest groups, academics and some US trading partners have continually raised concern that overly strong or unbalanced protection measures can also stifle creativity and innovation as well by limiting access to ideas and knowledge.

Under the “leading by example” category, the report says the US government will lead by ensuring the federal government does not purchase or use infringing products. It will establish a working group to reduce the risk of procuring such products, and ban the use of illegal software by government contractors.

As to increasing transparency, the administration vows to further encourage public participation in intellectual property enforcement policy making and international negotiations. During trade negotiations, however, it notes that this objective will be pursued with consideration given to the need for confidentiality in international trade negotiations.

The process surrounding the Anti-Counterfeiting Trade Agreement (ACTA), which is being negotiated among a group of mostly developed nations and led by the United States and European Union, has been heavily criticised for its perceived lack of transparency.

“We [also] agree with her [Espinel’s] emphasis on transparency in the development of IP enforcement policy, whether on domestic IP or in the context of foreign policy,” said Gigi Sohn, president of Public Knowledge. “That would be a refreshing change from the development of the Anti-Counterfeiting Trade Agreement (ACTA), which was done behind closed doors. We wish the plan had included in its transparency discussion the Section 301 reports, which put countries on watch lists, for reasons not clearly or publicly explained and which appear dependent on industry statistics.”

Sohn also said her group appreciates the discussion of “carefully crafted and balanced agreements” when it comes to preserving competition in private sector enforcement actions. “In our view, there private industry should not have the ability to cut off someone’s internet access based only on unproven allegations without any due process.”

There has been debate over whether the US government or industry should implement a “three strikes” rule that allowed repeat infringers’ internet connection to be cut off. France has attempted such a law.

Biden noted that internet delivery companies, movie studios, the recording industry and others have stressed the need for a “strong and fair” way to crack down on illegal downloads. He said discussions are ongoing between the content community and ISPs, but “everybody needs to pull together to fight the harm” done by intellectual property theft.

“It takes cooperation between the content community as well as between the internet service providers,” he said.

Read the article in its entirety here.

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