US Government, Industry De-Emphasise Multilateral System In Enforcement Push

The Obama administration and industry groups like the Motion Picture Association of America continue to keep their policy focus squarely on protection and enforcement of IP assets, but in testimony to the US Congress last week made no mention of multilateral venues for advancing these interests through new policy instruments.

MPAA Chairman and CEO Dan Glickman testified before a House of Representatives subcommittee that better enforcement will boost US jobs – a soft spot for lawmakers right now – and described several ways to tackle the problem, none of them multilateral.

Glickman addressed the House Committee on Oversight and Government Reform Subcommittee on Government Management, Organization, and Procurement Committee on Oversight Reform, chaired by Representative Diane Watson, a California Democrat, on 9 December. Testimony is available here.

Also testifying was Stanford McCoy, the Assistant US Trade Representative for Intellectual Property and Innovation, and a range of others from government and industry.

In his opening statement, Glickman urged support for government appropriations legislation containing funds for enforcement efforts, declared without explanation that stronger enforcement “results in consumers having more choices in how they view entertainment,” and urged the government to explicitly tie unilateral trade benefits offered to developing countries to conditions of intellectual property rights enforcement.

“The Generalized System of Preference (GSP) program, along with several other trade preference programs, is intended to offer trade benefits to developing countries while at the same time protecting US economic interests, notably the leverage to seek and secure improvements in IPR legislation and enforcement in beneficiary countries,” Glickman said.

“In some instances, the threat of suspending GSP benefits has motivated recipient countries to take meaningful steps to improve IPR protection,” he added. “Too frequently, however, there is a disconnect between Special 301 and trade preference programs with some of the most egregious offenders of US intellectual property rights receiving preferential access to the US market despite their long-standing failure to effectively protect US creativity. In my view, our foreign policy should be more cohesive.”

He continued: “Linking Special 301 and trade preference program eligibility would provide the US government a powerful enforcement tool. This could be achieved by requiring, as a condition for continuing to receive benefits, that GSP beneficiaries listed on the Special 301 Priority Watch List develop and implement an action plan, in cooperation with the US government, to address the IPR deficiencies discussed in the 301 report. Throughout the process – from developing the action plan to its implementation – countries would be compelled to consider and address IPR deficiencies.”

Glickman also urged support for free trade agreements. “All US FTAs call for protections that exceed the minimal requirements of the WTO [World Trade Organization]’s Trade Related Aspects of Intellectual Property Agreement (TRIPS) and USTR has continuously improved the level of protections in these agreements,” he said.

And he stressed the plurilateral Anti-Counterfeiting Trade Agreement (ACTA), which is being negotiated secretively by a group of mostly developed countries, “in particular the provisions to address internet piracy.”

“We firmly believe that for the ACTA to address the enforcement challenges our industry confronts today, it must include robust protections for intellectual property online,” he said. “Practical secondary liability regimes for online infringement are essential to motivate stakeholders to cooperate in implementing the reasonable practices that promote legitimate consumer options and make the online marketplace less hospitable for infringers. ACTA parties should refine their secondary liability regimes to reflect current realities and adopt modern, flexible systems where they do not exist.” Internet service providers and technology providers may have a different view on this.

Glickman also said ACTA is “not a free trade agreement,” which has recently become a point of interest for some observers concerned with the process of negotiating the treaty.

He did make an additional call for an international focus, but it was to support US IP attachés in US embassies abroad, as these IP officials work on enforcement.

USTR on ACTA

Assistant USTR McCoy did not address the unilateral benefits connection, but spoke at length about the Special 301 process, targeted China in particular, and detailed US efforts to work through the WTO dispute settlement process to address counterfeiting and piracy concerns.

McCoy said the Obama administration is trying to address concerns from civil society about the secretive nature of the ACTA talks. “In keeping with the administration’s goals on transparency, we are looking at new approaches to keep the public well-informed about our progress in these negotiations, and to ensure that they have meaningful opportunities to give input into the negotiating process. We won endorsement of the importance of meaningful public input from all of the participants at the Seoul Round in of the ACTA negotiations in November. We will continue working with our ACTA negotiating partners to meet these objectives.”

“Our goal,” he said, “is to complete the negotiations next year, and once finished, it is our hope that more countries will aspire to join this leadership agreement, and we will thereby encourage greater respect and enforcement of IPR globally.”

USPTO View

Another contributor was new US Patent and Trademark Office Patent Commissioner Robert Stoll, who spoke about the work of the USPTO. He mentioned the office’s collaboration with other agencies, jobs and enforcement, the administration’s push to get patent reform passed in Congress in order to boost global harmonisation efforts, its advice on current issues like the Google book settlement and the Supreme Court on business method patents (Bilski v. Kappos), and detailed the USPTO’s extensive training and capacity building activities.

US government representatives and industry lobbyists will continue to participate in negotiations in multilateral fora like the WTO, World Intellectual Property Organization and World Customs Organization. In the recent past, it has tried with little success to escalate enforcement and protection issues in these and other venues. Under the new administration, it is unclear what they will be seeking to advance there.