United States Sees Spate Of Intellectual Property Policy Activity

In the aftermath of the recent protracted fights over healthcare, the United States has seen a wave of intellectual property-related policy activity.

The recently published 2010 National Trade Estimate Report on Foreign Trade Barriers [pdf] – an annual report that surveys alleged trade barriers to US exports – has several complaints about other nations’ treatment of US intellectual property rights.

The report, for example, names insufficient penalties for copyright violation in Australia; piracy of software, music and movies as well as “erosion of intellectual property protection for pharmaceutical products” in Bolivia; concerns over adequate protection of pharmaceuticals and against use of test data for pharmaceuticals in Brazil; failure to implement copyright reform in Canada, including the WIPO “internet treaties” that Canada signed in 1997; a slew of IP issues in China, including the “troubling trend” of China encouraging domestic innovation at the expense of foreign technologies, especially via government procurement. The IP sections of the report are available here.

Many of the countries listed were on the 2009 watch lists of the US Special 301 report, which is specifically aimed at countries it deems to be inadequately protecting US IP rights. The 2010 Special 301 report (IPW, Enforcement, 5 March 2010) is due out on or near 30 April, according to the USTR’s schedule [pdf].

Meanwhile, former US President Bill Clinton has admitted that free trade policies have been “a mistake” for the developing world, making it impossible for their producers to compete, the Washington Post reported.

Now a UN special envoy to Haiti, Clinton said the US requiring Haiti to lower tariffs on rice imports made it impossible for Haitian farmers to sell their products, forcing them off their lands and reducing the capacity of the beleaguered country to produce enough food to feed its own people, the Washington Post reported.

FCC Loses Net Neutrality Ruling

Internet service providers in the United States are now free to filter content online after an appeals court said the Federal Communications Commission – which regulates telecommunications in the United States – lacked the mandate to regulate the behaviour of internet service providers.

While the FCC’s statutes allow for new rule-making so the Commission can keep up with new technological developments related to its mandate, the “allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer . . . Commission authority,” the US Federal Court of Appeals 6 April report [pdf] stated. The court ruled that ensuring internet freedom through FCC regulation falls outside the Commission’s authority.

The FCC in a statement [pdf] reiterated its commitment to an open internet. The “court decision invalidated the prior Commission’s approach […] but the Court in no way disagreed with the importance of preserving a free and open internet; nor did it close the door to other methods for achieving this important end,” the statement said.

The move is seen as a blow by advocates of internet neutrality, who oppose the ability of service providers to privilege one form of content over another, on the grounds that neutral exchange of information online is vitally necessary. The concern is that many places in the United States are covered by only one internet service provider – so there may be no competitor to turn to if a local ISP decides to begin filtering content.

The ruling “calls into serious question the ability of the FCC to protect consumers,” as well as the organisation’s ability to implement the National Broadband Plan, said a press release from the Open Technology Initiative at the New America Foundation think tank. For more on the broadband plan, see IPW, Information and Communications Technology, 17 March 2010.

The free market think tank Institute for Policy Innovation called the court decision a “unqualified victory” in a press release, adding the FCC’s attempts to regulate ISPs “would amount to nothing more than seizing control of the internet under the belief that Washington can do a better job crafting an internet experience than the marketplace.”

Patent Application Extension?

At the US Patent and Trademark Office (USPTO), a new proposal would allow for patent applicants to extend a provisional application period by an additional year, to be “implemented through the missing parts practice in non-provisional applications.” A non-provisional application currently must be submitted within a year of the provisional application if an inventor wants to pursue a patent in earnest.

The extension period is intended to allow inventors to “test the marketplace” to see if their invention has market potential, USPTO Director David Kappos said in a press release, adding that one year might not be enough time to do this. USPTO has issued a request for public comment, with comments due by 1 June.

Also at the USPTO, a new ombudsmen programme was launched on 6 April. The programme will provide resources to applicants or their representatives who have had problems that could not be solved via normal channels. It promises a phoned response to questions within one business day, and is in response to requests from applicants to have a dedicated place to go in case of difficulty, the USPTO said in a release.

Industry Groups Stick Up for ACTA

Some industry groups appear to be responding to the wave of public outcry over the Anti-Counterfeiting Free Trade Agreement under negotiation by the United States and about a dozen other countries. Several industry groups in the past week released statements extolling the virtues of and the need for an international treaty to fight IP crimes. The statements come just ahead of the next round of ACTA negotiations, being held in Wellington, New Zealand from 12-16 April.

The proposed agenda for this meeting is here, and a March 2010 “fact sheet” on ACTA from the USTR is available here.

The International Chamber of Commerce blamed counterfeiting and piracy for slowing economic development and job growth and threatening consumer safety, and said ACTA is necessary to stop the growing threat. The ICC’s anti-piracy and counterfeiting coordinator, Jeffrey Hardy, in a 6 April press release dismissed the concerns of public interest watch groups as based on “unfounded speculation and extreme statements about both its goals and its substance.”

The US Chamber of Commerce joined its international counterpart and a coalition of several other businesses in calling for a quick conclusion to ACTA, in a 6 April letter [pdf] to US Trade Representative Ron Kirk.

Separately, Congressional International Anti-Piracy Caucus co-chairs Senator Orrin Hatch (Republican, Utah) and member of Congress Adam Schiff (Democrat, California) sent a 30 March letter to Kirk that discussed the importance of IP to America. The letter [pdf] said a “more robust framework is needed to thwart the criminal enterprises engaged in IP theft,” a sentiment that was commended by the US Chamber.

Obama Administration Backs Radio Rights, Digital News

Separately, the US Department of Justice announced on 1 April that it supports a proposal from the Associated Press to “develop and operate a voluntary news registry to facilitate the licensing and internet distribution of news,” it said in a press release. The AP had submitted a business review request to Justice to see if the division would challenge the move on antitrust grounds. The response of Assistant Attorney General Christine Varney, available here [pdf] said the proposal was unlikely to result in anticompetitive harm and could even help participating content owners and users by delivering a mechanism through which content users could more easily purchase licenses for news.

And the US Department of Commerce has endorsed a Performance Rights Act that will increase compensation to musicians when their songs are played on the radio. The bill is intended “to provide fair compensation to artists for use of their sound recordings.”

A 1 April letter [pdf] addressed to the US Senate from the general counsel of the Commerce Department cites “historic rationale for copyright” as a means for advancing public welfare by encouraging individual effort with the guarantee of personal gain, and said that the performance rights act would bring the US in line with other industrialised nations who already recognise performer’s rights to their sound recordings.