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On Monday, President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act, or PRO-IP Act, which increases penalties for intellectual property infringement and provides resources for federal agencies like the FBI and the Justice Department to coordinate efforts against counterfeiting and piracy. Most notably, the new law creates a new executive officer, the Intellectual Property Enforcement Coordinator (IPEC), in Section 301, who is charged with coordinating the statute’s “Joint Strategic Plan” (described in Section 303) with other federal agency officials.
Like other executive officers, the IPEC will be nominated by the president and have to be confirmed by the Senate. The IPEC’s primary responsibility will be to chair the “intellectual property enforcement advisory committee” created in Section 301 of the Act. The committee will be comprised of officials from the Justice Department, Department of Homeland Security, the Patent and Trademark Office, and the Office of the U.S. Trade Representative, among others.
The IP enforcement advisory committee is charged with developing the Joint Strategic Plan, which has several objectives, including: “reducing counterfeit and infringing goods in the domestic and international supply chain,” “disrupting and eliminating domestic and international counterfeiting and infringement networks,” and “working with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights.”
The Bush administration initially opposed the legislation, which originally contained a provision that would have allowed the Justice Department to pursue civil litigation against copyright infringers, commenting that the law “could result in Department of Justice prosecutors serving as pro bono lawyers for private copyright holders regardless of their resources.” In its current form, though, the PRO-IP Act has received support from the business community, the Recording Industry Association of America (RIAA), the U.S. Chamber of Commerce, and large copyright holders such as NBC Universal. Labor groups such as the AFL-CIO have also expressed their support for the new law, according to CNET News. The legislation passed unanimously in the Senate and received strong bipartisan support in the House.
The Electronic Frontier Foundation (EFF), a prominent copy-left organization, has consistently opposed the PRO-IP Act, however, stating that the bill would “significantly expand federal enforcement of copyright law.” It wrote that “[t]he most outrageous provisions [of the Act] would create new and unnecessary federal bureaucracies devoted to intellectual property enforcement. None seems more ridiculous than language creating a Cabinet-level ‘IP enforcement czar’ that would report to the President and coordinate enforcement efforts across government.”
So, is the creation of an executive-level IP czar really necessary to vindicate U.S. intellectual property holders’ rights domestically and across the globe? It is true that intellectual property represents about $5 trillion in the U.S. economy and one-half of the value of our country’s exports. And, the IPEC’s role as the chair of a solely advisory agency limits his authority while constraining the possibility of a new, sprawling IP bureaucracy. However, the large U.S. companies that hold valuable IP rights undoubtedly already have the financial and legal resources to protect themselves from domestic and foreign infringers. The PRO-IP Act does not simply advance particular private interests, despite detractors’ beliefs that it will only help corporate IP holders, but has the potential to bolster institutional and public interests in the protection of intellectual property, especially abroad.
There are at least two important public law benefits that may accrue from creating the office of the IPEC and establishing the IP enforcement advisory committee. First, the United States can use the committee to coherently establish its foreign policy with regard to the infringement of U.S. intellectual property rights abroad. Second, the IPEC can work through the committee to create effective programs to provide training and technical assistance to foreign governments for the purpose of enhancing their efforts to enforce their own laws against counterfeiting and infringement.
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