By Tony Dutra
The administration's second “Joint Strategic Plan on Intellectual Property Enforcement” identified 26 action items for work over the next three years to curb IP infringement, with a focus on online piracy, trade secrets and economic espionage, and transparency.
“We need to be thoughtful and forceful,” Victoria A. Espinel, the White House's IP enforcement coordinator, said in a June 20 press conference right after the release of the 88-page document.
The general categories of action items--leading by example, increasing transparency and public outreach, ensuring efficiency and coordination, enforcing our rights abroad, securing the supply chain, and building a data-driven government--echo the high-level goals of the first plan published in 2010 (119 DER A-11, 6/23/10).
In line with the initiatives related to enforcement of internet-related infringement, the Patent and Trademark Office published on the same day a notice of a “Voluntary Best Practices Study” to measure whether voluntary initiatives are working. 78 Fed. Reg. 37,210.
Espinel has previously published reports showing progress made against the action items listed in the 2013 plan (62 DER A-7, 4/2/12)(122 DER A-13, 6/24/11), and in March 2011 she issued the administration's White Paper on Intellectual Property Enforcement Legislative Recommendations, recommending 20 specific legislative initiatives for increasing the effectiveness of U.S. enforcement efforts.
In the press conference and in the 2013 plan, Espinel listed as one accomplishment since the 2010 plan that Congress has passed laws addressing seven of the recommendations.
The plan further notes as accomplishments:
• successful enforcement efforts by U.S. Customs and Border Protection and the Immigration and Customs Enforcement's Homeland Security Investigations (84 PTCJ 470, 7/20/12), and health and safety-focused investigations by the Federal Bureau of Investigation;
• voluntary agreements by internet service firms, credit card companies, and advertising associations “to adopt best practices aimed at curbing the sale of counterfeit goods and reducing online piracy”;
• the Office of the U.S. Trade Representative's negotiation of free trade agreements with South Korea, Panama, and Columbia, with ongoing negotiations on a Trans-Pacific Partnership trade agreement “that will include state-of the-art intellectual property protection and enforcement provisions”; and
• the Department of Commerce's economic report, Intellectual Property and the U.S. Economy: Industries in Focus, “detailing the breadth and depth of intellectual property industries and the jobs they support.”
“Moving forward, the Administration will continue to improve upon these efforts,” according to the 2013 plan. “We will focus on infringement that has a significant impact on the economy, the global economic competitiveness of the United States, the security of our Nation, and the health and safety of the American public.”
The plan lists a number of ongoing concerns, starting with one that is new to the 2013 plan and the subject of a recent White House “fact sheet” and combined agency report--abusive patent litigation tactics, particularly by so-called patent trolls (109 DER A-17, 6/6/13).
The second concern listed related to the “[un]acceptable tactic” of foreign governments that “condition market access or the ability to do business on the transfer of trade secrets or proprietary information.”
The plan also cited “new challenges and opportunities” present in new technologies, especially mobile computing and 3D printing. Mobile apps may be counterfeited and other apps “will be used to distribute infringing digital goods,” the plan said. And through 3D printing, “there also exists the opportunity for individuals who look to exploit others' hard work to abuse this technology by trading in counterfeit and pirated goods.”
A comparison of the action items listed in the 2010 and 2013 plans shows that several of the 33 action items in 2010 have been dropped from the 2013 list, presumably given adequate progress in the last three years. There were also seven action items in the 2013 plan that had no parallel in the 2010 plan:
• Educate Authors on Fair Use. “The U.S. Copyright Office will summarize current law and provide general guidance targeted to artists seeking to apply the law to their own situations.”
• Raise Public Awareness. “Federal agencies will continue to look for opportunities to raise awareness and increase understanding of the risks from intellectual property infringement.”
• Improve Efficacy of Enforcement by Leveraging Advanced Technology and Expertise. The example cited is to use mobile computing to decrease the cycle time for inspection and infringement determination. Espinel will create an interagency working group to look for more such opportunities.
• Consider Alternative Forums for Enforcement of Rights. The plan would push consideration, already underway, of small claims courts at the Copyright Office and at the PTO.
• Protect Intellectual Property at [the Internet Corporation for Assigned Names and Numbers]. The plan proposes government agency “engagement with ICANN's multi-stakeholder processes to further improve the new gTLD program, including through mechanisms for intellectual property protection, and to mitigate abuses of the domain name registration system.”
• Examine Labor Conditions Associated with Infringing Goods. This task was assigned to the Department of State to “examine the relationship between unacceptable labor conditions and the manufacture and distribution of counterfeits and take further action if necessary.”
• Expand Information-Sharing by [U.S. Department of Homeland Security] to Identify Counterfeit Goods at the Border. The issue is mostly a matter of legislation, such as the Foreign Counterfeit Merchandise Prevention Act, H.R. 21, that would allow customs officials to share information with copyright and trademark holders. But the plan also calls for CBP regulations related to circumvention devices.
In the press conference, Espinel noted that issues related to trade secrets and economic espionage are “woven throughout the strategic plan. That has been and will continue to be a major emphasis.”
She also highlighted “transparency and getting public input from the public. It's very important to us that we hear from as many people as possible.”
She focused during the call mainly on the action items related to online infringement and, in particular, the plan's call for more voluntary initiatives from private firms.
“It's important that we continue to reach out to the tech companies,” she said. “We need everyone at the table.”
Though she was pleased with the voluntary initiatives taken to date, she identified three “additional sectors in the tech world we should be reaching out to: … cyber lockers, domain name registrars, and search [engine firms].”
The PTO issued a notice on the same day requesting comments on a “Voluntary Best Practices Study,” with a focus on “intellectual property infringement that occurs online--such as copyright piracy and trademark counterfeiting.”
Espinel defined the PTO's function as more of a review than active involvement in reaching out to internet firms.
“It's very important to us that the voluntary initiatives are having a positive impact, … that they are reducing infringement in a practical and effective way and are not unduly burdensome,” Espinel said. “The PTO is going to be taking on the work of doing that assessment so we know that in fact the voluntary initiatives are working.”
The PTO's notice “invites input from all interested parties on the processes, data metrics, and methodologies that could be used to assess the effectiveness of cooperative agreements and other voluntary initiatives to reduce infringement.” It identifies six specific questions for additional input.
Comments are due July 22.
Espinel's blog post about the plan is at http://www.whitehouse.gov/blog/2013/06/20/intellectual-property-key-driver-our-economy.
PTO's request for comments is at http://pub.bna.com/ptcj/78FedReg37210.pdf.
Comparison of 2013 vs. 2010 plan action items is at http://pub.bna.com/ptcj/IPECPlanChanges2013.pdf.
PTO's request for comments is at http://pub.bna.com/ptcj/78FedReg37210.pdf.
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