US Business Calls For IP Enforcement “Surge”, Seeks New Legislation This Year

The United States’ largest industry association today laid out an aggressive legislative agenda on intellectual property, calling for a dramatic increase in enforcement activities including pumped up customs and border authority.

“We need a surge in IP enforcement activity” to counter a “tidal wave” in IP infringement, said Rick Cotton, executive vice president and general counsel of NBC Universal and chairman of the US Chamber of Commerce Global Intellectual Property Center Coalition Against Counterfeiting and Piracy.

Pinning economic recovery in the United States to stronger IP enforcement, the Chamber claimed IP industries account for $5 trillion of the US GDP, more than half of US exports, and the employment of 18 million Americans.

They pointed to overwhelming bipartisan support for the last bill to boost IP protection and enforcement, and said they think Congress has an appetite for more, despite a seeming deadlock on most substantive policymaking. The bipartisan support meant both US political parties – Democrats and Republicans – plus business and labour, and business and consumers, they said (though the latter was not elaborated upon).

“This is a year we could take a major step forward,” said Mark Esper, executive vice president of the Chamber’s Global Intellectual Property Center (GIPC). “We view this as an urgent priority.”

The Chamber ascribed significant future job growth and deficit reduction to better IP enforcement, including through increased tax revenues and exports.

David Hirschmann, president and CEO of the Chamber’s IP Center, said the Obama administration should deliver on a congressionally mandated National IP Strategy under recently confirmed US Intellectual Property Enforcement Coordinator Victoria Espinel (as part of the 2008 PRO-IP Act). This includes fully funding IP enforcement efforts, and boosting Justice Department actions.

The Chamber’s priorities include to “push aggressively” for Congress to add significant new resources and authority for Customs and Border Protection and related agencies to fight counterfeit products entering the country. There was no mention of the debates in Europe over imbuing customs officials with powers that may involve greater technical and legal know-how than they normally are trained in, and the preference to put decisions on counterfeit goods in the hands of judges.

The Chamber also urged successful conclusion of the international Anti-Counterfeiting Trade Agreement this year, more engagement with China and India, and better cooperation with the European Union, which along with the United States (and Japan) owns a majority of the world’s IP rights. And it seeks continued inclusion of strong IP provisions at the World Intellectual Property Organization and in bilateral and regional trade agreements such as the US-South Korea FTA and the Trans-Pacific Strategic Economic Partnership. Plus, it wants to further expand the programme of IP attachés in US missions and embassies around the world.

On international IP protection, today was the deadline for submissions to the US Trade Representative’s annual Special 301 report, issued in April, which lists countries USTR unilaterally deems to be adequately protecting US IP rights. The list often closely reflects perspectives of industry such as the International Intellectual Property Alliance, whose submission is here. Non-profit Knowledge Ecology International’s submission is here, and a joint submission from the Electronic Frontier Foundation and Public Knowledge is here [pdf].

In the press briefing, the Chamber dismissed any notion that innovation can be harmed by too much emphasis on protection of IP rights – which give a monopoly over protected material to the right owner. This was a jab at groups representing the public interest.

“America’s innovation and creation economy … faces threats from criminal counterfeiting and piracy networks, as well as from a few foreign governments and special interest groups determined to weaken IP rights and undermine global norms,” Hirschmann said in a 16 February letter addressed to President Obama, available here [pdf]. The Chamber letter to Congress is available here [pdf].

The barriers to access are not IP-related, Cotton said, adding, “IP enables access.” An example he gave is the wide global takeup in mobile telephones in even the most remote corners of the globe (the UN International Telecommunication Union this month predicted 5 billion mobile phone subscriptions in 2010). This was possible because there were IP rights and no barriers, he said. And for copyright holders, it is beneficial for there to be maximal access to their products through the marketplace, the next speaker added. What is important is to have access to legitimate forms of products.

Speaking to reporters in Washington, industry representatives took particular aim at China, said to be far and away the biggest infringer of US IP rights, and a primary source of counterfeit goods, some of them dangerous.

Cotton also signaled stronger measures for internet service providers to track or filter content. He downplayed privacy concerns, likening it to virus protection. Non-profit group Public Knowledge reacted by saying filtering is unconstitutional and illegal, and contending the virus protection analogy. “There is no technology that exists, and one is not likely to exist, that can determine which uses of copyrighted material are fair use, and which are not, so the filtering would be useless,” Public Knowledge president Gigi Sohn said in a statement.

Several years ago, it was common for government officials to say protecting private-sector IP rights was largely the private-sector’s own concern. Now, the emphasis is on government action.

Speakers also addressed ongoing concerns about transparency in the ACTA negotiation. They said transparency is desirable, and that numerous steps have been taken already to make the process transparent. “This is not an agenda to hide anything,” Cotton said. “This is an agenda to get things done.” It is after all well known in policy circles that things usually get done faster with fewer participants behind closed doors.