Rights are worthless if they aren’t enforced. When copyright owners and creators see their rights as having meaning through enforcement, all of society wins through creation of new works. We also benefit from more jobs and more tax revenues and investment in the US economy, benefits that cannot be understated given this country’s current economic climate.

That’s why it’s so important that six copyright champions in the US Senate today — Patrick Leahy (D-VT), Arlen Specter (R-PA), Evan Bayh (D-IN), George Voinovich (R-OH), Dianne Feinstein (D-CA) and John Cornyn (R-TX) — unveiled legislation that would go a long way toward improving IP enforcement right here in the United States. The Copyright Alliance released a statement on the bill earlier today, but I’d like to elaborate a bit here.

One of my favorite provisions is one that will probably get the least attention, and that is unfortunate. In Section 201 of the bill, the sponsors look out for the little guy in an attempt to maker sure a copyright owner doesn’t find his or her infringement case thrown out because of some technicality in the way the copyright was filed with the US Copyright Office. This is a no-brainer, yet the way the law is structured now copyright owners can go through the process of registering in order to ensure they can pursue damages only to find out that they don’t have the rights they thought they did. This effort has been around awhile — similar language is in the PRO-IP Act that passed the House 410-11 and it was in the Copyright Modernization Act that stalled in the House in the last Congress (over disputes over Sec. 115, not this issue).

Much of the press focus likely will be on the fact that this bill, like PRO-IP, contains an IP coordinator, an administration official who would coordinate with all government agencies involved in IP enforcement, and they would jointly develop a strategic plan that would be subject to congressional oversight. The Senate sponsors chose to place the position in the Executive Office of the President. That would seem a good place. There has been some controversy in this town over where the person should be placed to maximize effectiveness while minimizing turf wars. In my humble opinion, location matters, but if it is clear both in statute and in practice that this individual is in fact a coordinator and not an interagency supervisor — a czar, if you will — then it will be all but assured that we will see an improvement in IP enforcement.

The Senate bill doesn’t go as far as PRO-IP in creating new government enforcement positions; for example, it largely focuses on resources for existing state personnel and beefing up the FBI with a dedicated team and state-of-the-art resources. The consuls that would be placed in foreign embassies in the PRO-IP Act aren’t here. There may be some merit to that, in that whatever Administration comes in next year might want some flexibility to best determine how foreign desks are manned. However, all of these new positions in both bills, while authorized, would need appropriations. It would be a shame if the next Administration, which regardless of who wins will I believe be dedicated to IP enforcement, finds itself with unfunded mandates.

Just as important is the Hill calendar. There are only a few weeks left in the 110th Congress. How do we ensure that IP enforcement legislation becomes law, assisting the next Administration and giving a boost to our economy? To begin with, the Senate Judiciary Committee has to move quickly. The bill’s sponsor is the chairman of that committee, and the primary cosponsor is the ranking Republican. The bill is bipartisan. It’s unlikely the committee under normal circumstances couldn’t pass the bill; what we have to hope is that this bipartisan consensus won’t let the bill get caught up in any disputes over judicial nominations.

At that point, it needs swift passage on the Senate floor, and ideally the House would be willing to do an up-or-down vote on the Senate bill to avoid a conference. This bill differs in some ways from PRO-IP, but the spirit and intent are the same, and some of the language is very similar. There may be other scenarios to passage; it matters little to me which one is followed as long as the bill lands on the President’s desk this year.

We’ll have more to say on this bill, and IP enforcement generally, as the process moves forward. I’d just like to again thank the sponsors of this bill for their devotion to creators and copyright owners across this country.

This entry was posted on Thursday, July 24th, 2008 at 12:53 pm by Patrick Ross and is filed under capitol hill, copyright law, counterfeit, economy, property rights. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.