Intellectual property enforcer to get first Senate Judiciary review

Business and advocacy groups eagerly await the release of the government’s first-ever strategic plan for intellectual property enforcement, as a Senate panel prepares to assess the performance of the post tasked with coordinating enforcement efforts and drawing up the plan.

The Senate Judiciary Committee will question Intellectual Property Enforcement Coordinator (IPEC) Victoria Espinel and key industry members on Wednesday in what will be the position’s first oversight hearing since her Senate confirmation in December.

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The plan’s imminent release will come amid continuing concerns among business and advocacy groups that the government needs to do more to combat intellectual property violations, such as counterfeiting and Internet piracy, as the multitrillion-dollar intellectual property sector continues to grow.

“I think [the plan] signals a monumental shift in the thinking of the administration and lawmakers, to their credit, in terms of what IP enforcement means for our country,” said Mark Esper, executive vice president of the Global Intellectual Property Center at the U.S. Chamber of Commerce, which will send a representative to Wednesday’s hearing.

The IPEC position was created in the PRO-IP Act of 2008, which sought to address weaknesses in the government’s past intellectual-property coordinating structure. The coordinator is responsible for creating the strategic intellectual-property enforcement plan, as well as chairing a committee to improve collaboration on intellectual-property matters between foreign policy, law enforcement, commerce and other agencies.

Though there is no official date for the plan's release, a Judiciary official said Espinel's plan is expected to come out "soon."

Experts and intellectual-property advocates have frequently pointed to improved IP enforcement as a way of assuaging businesses’ worries about the risk of their products being counterfeited or pirated. When countries have enacted reforms that do just that, companies are more likely to take their products abroad, said Fritz Foley, associate professor in the Finance Unit at Harvard University Business School.

He also said research shows that countries also see their exports go up around the time they enact reforms.

“They’ve been important steps forward,” Foley said. “It’s a question of whether they go far enough.”

Government Accountability Office (GAO) reports have said that, both domestically and abroad, the government’s IP enforcement system before the PRO-IP Act’s enactment lacked leadership and permanence.

Congress created the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) in 1999 to coordinate IP enforcement efforts across agencies. But the GAO found in 2004 that the agency “had struggled to define its purpose and retained an image of inactivity within the private sector,” and that NIPLECC continued to struggle even after improvements were enacted in 2006.

GAO noted improvements in intellectual-property enforcement under the Bush administration’s Strategy Targeting Organized Piracy (STOP) initiative, but said its lack of permanence presented problems for enforcement efforts in future presidencies.

With intellectual property products and jobs likely to take up an increasing fraction of the U.S. economy in the future, the Chamber argues, PRO-IP is a big step forward.

“If we don’t get our act together and don’t have a more comprehensive and robust way of [enforcing intellectual property], then criminal organizations and others will continue eating away at what makes us unique,” Esper said.

Esper said the Chamber hopes that Espinel’s strategic plan will tackle Internet piracy and counterfeiting, especially as faster broadband connections and increased Internet access make it easier for people to pirate movies and e-books.

The Chamber also hopes that the plan will prevent non-digital products like pharmaceuticals from being counterfeited, and help trade partners with international enforcement efforts.

Even some groups that opposed the PRO-IP Act, such as the advocacy group Public Knowledge, have given high marks to Espinel so far and are waiting to see her plan. The group and others opposed PRO-IP in part because they felt that act would politicize the enforcement of intellectual property.

“I think she has really done her best to have an open and transparent process, but again I’m hoping that her document is not just going to talk about joys of enforcement but some of the perils of over-enforcement,” said Gigi B. Sohn, president of Public Knowledge. “Not only how enforcement affects Hollywood’s recording and software industry, but also how it positively and negatively affects Internet companies, service providers and the public.”