US Lawmakers Seek To Fuel International IP Enforcement Activities

By Liza Porteus Viana for Intellectual Property Watch
WASHINGTON – Lawmakers in the United States concerned that global counterfeiting and piracy are hurting American business on Wednesday introduced two bills aimed at curbing the practices, and said they want more international cooperation to do so.

Senators Evan Bayh, an Indiana Democrat, and George Voinovich, a Republican from Ohio, introduced the Intellectual Property Rights Enforcement Act, which would establish an Intellectual Property Enforcement Network (IPEN) to replace what they say is the ‘looser’ interagency approach now handling US IP enforcement efforts, and would make sure the US Congress is involved in ensuring sufficient resources flow to efforts to combat IP theft.

The legislation also calls for the United States to establish an international task force made up of countries with good track records of preventing IP infringement to track, identify and stop it. Bayh’s office told Intellectual Property Watch those could be European countries, Japan, Singapore, Australia, and others. The bill also would encourage the US president to make cooperation with the global task force a priority among US trading partners.

The United States, European Union and other key trading partners last month announced their intention to negotiate an Anti-Counterfeiting Trade Agreement (ACTA) to encourage other countries to meet higher intellectual property rights enforcement standards. Although ACTA includes many of the standards Bayh has been advocating, the Bayh said he is still worried it will not be strong enough.

“I have reviewed the text of this proposal, and believe it includes many good provisions,” Bayh said during a Senate Judiciary Committee hearing on the issue Wednesday. “But my overriding concern is that accession to this agreement would be granted for reasons unrelated to a country’s commitment to IP protections.”

Bayh said his proposed task force will grant membership solely to countries with what he called adequate IP protection laws and a proven track record of enforcing them. But he is concerned countries would demand membership to the task force in exchange for helping with some other extraneous issue unrelated to IP. He thinks the only way this will occur is if transparent standards for membership are established.

“Today, international cooperation in many organisations is hampered because the worst global actors are members,” Bayh said. “Our legislation envisions the United States sharing information on criminal activity, and even engaging in joint enforcement operations. Such a close-knit arrangement can only flourish among trusted allies.”

Second Bill Would Pump Up Enforcement

Meanwhile, Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont), and committee member Sen. John Cornyn (R-Texas), introduced the similarly named Intellectual Property Enforcement Act Wednesday. The bill would, among other things, would give civil copyright enforcement powers to the attorney general and the Justice Department, authorise additional funding to investigate and prosecute intellectual property crimes involving computers and the Internet, and require the FBI to assign a minimum of 10 agents to work on intellectual property crimes. It also classifies both the importation and exportation of pirated works as infringement.

“The piracy and counterfeiting of intellectual property has reached unprecedented levels,” Leahy said, citing figures that assert copyright infringement alone costs the US economy at least $200 billion and approximately 750,000 jobs each year. “Such theft is unacceptable, but counterfeiting goods not only infringe IP rights, they can endanger our health and safety.”

Chris Moore, deputy assistant secretary for trade policy and programs at the State Department’s Bureau of Economic, Energy and Business Affairs, and other officials, said there is international desire to cooperate with current US enforcement efforts. He said it is “striking” how many other countries are experiencing the same challenges in reining in pirates and counterfeiters.

Moore said US trade agreements have provided “vital tools” to combat counterfeiting and piracy. Pacts such as the US-Australia free trade agreement and the US-Singapore FTA have resulted in stronger anti-piracy laws. And through the US-China Joint Commission on Commerce and Trade, the Chinese government has agreed to mandate all imported personal computers have pre-installed legal operating software, he said.

The State Department’s 267 embassies, consulates and missions around the world act as America’s “first responders” for American IP holders, Moore added, in that they are regularly meeting with international officials, holding roundtables, and sponsoring other events to drive home the message that counterfeiting and piracy – particularly organised trans-national pirating groups – are dangerous to their economies and populations.

The Department of Commerce also is working with the European Commission’s enterprise directorate to develop programs to promote protection of IP rights through public awareness efforts, cooperation at trade fairs, and small business education.

Chris Israel, US coordinator for international intellectual property enforcement with the US Commerce Department, said the first half of 2008 will see joint efforts at trade fairs in Europe and China. He also noted that the US and the World Intellectual Property Organization are developing a technical assistance pilot plan to combat trade in goods alleged to be infringing and to strengthen IP enforcement in Indonesia. The two will reach out to other Group of Eight (industrialised nation) members to gain their support with joint or complementary actions.

Target: China

But China continues to pose a problem, officials said.

“We every day have to deal with the challenge of getting the attention of the Chinese. We’re constrained every day,” Israel said. China, he said, is the “nexus” where the vast majority of pirated goods in the United States are coming from.

The Bush administration has made two requests before the WTO for dispute settlement consultations with China, one over deficiencies in the Chinese legal system for enforcing copyrights and trademarks on products. That request focuses on provisions of Chinese law that create a “safe harbour” for distributors of the pirated goods. Another request focuses on the rules for disposal of infringing goods seized by Chinese customs. A third issue concerns Chinese copyright law’s apparent denial of copyright protection for works about to enter the market but awaiting Chinese censorship approval.

The State Department is putting together an action strategy for IP enforcement based out of the US Embassy in Beijing after a roundtable two weeks ago that involved Immigration and Customs Enforcement, Customs and Border Patrol, Justice Department, and other agencies.

“There are some specific law enforcement actions that will come out of this,” Israel said.

Moore said although there is “some will” from China to crack down on the illegal activities, counterfeiting and piracy is a bigger problem that needs more focus on effective prosecution and enforcement of criminal penalties, as well as open markets for legitimate products.

“I think they’re looking at a systemic problem and they’re just looking at one piece of it,” Moore said.

Liza Porteus Viana may be reached at info@ip-watch.ch.