Friday, 21 June 2013
A Very Active White House on IP: The 2013 Joint Strategic Plan on IP Enforcement
The White House, through its Office of the U.S. Intellectual Property Enforcement Coordinator, has released the new 2013 Joint Strategic Plan on IP Enforcement which builds upon the 2010 Joint Strategic Plan. If anything, the White House is taking a proactive stance on IP. Interestingly, some stakeholders who ordinarily may disagree seem to think this is generally a “fair” plan (see here and for more discussion see here). For example, the Electronic Frontier Foundation and the RIAA seem to both give it a cautious “thumbs up.” One interesting action item concerns the examination of labor conditions of manufacturers of counterfeits. Here is the discussion of that interesting issue:
There have been anecdotal reports that poor and dangerous working conditions, sometimes involving child labor, are found to exist in facilities where counterfeit and pirated goods are being manufactured overseas or in illicit distribution networks. A deeper analysis of the issue would shed greater light on the problem and provide an opportunity to strengthen our engagement with foreign governments and improve efforts to combat manufacturing and distribution of illicit counterfeit and pirated goods. In addition, the resulting information could enhance public awareness of the direct connection between purchasing infringing goods, supporting illicit businesses, and the impact on working men and women across the globe. Going forward: DOS will begin an examination of the nexus between unacceptable working conditions and the production and distribution of counterfeit goods in certain countries. Further actions will be considered depending upon the outcome of that examination.
It will be interesting to see how this plays out.
Here is a list of the action items building on the 2010 Joint Strategic Plan (there are 26 including items included in the 2010 Joint Strategic Plan):
1) Facilitate voluntary initiatives to reduce online intellectual property infringement. IPEC will reach out to additional sectors (which may include data storage services, domain name registrars, and search engines) and will also encourage rightholders to adopt a set of best practices. USPTO will start a process to assess the voluntary initiatives; 2) Conduct a comprehensive review of domestic laws to determine needed legislative changes to improve enforcement; 3) Support small and medium-size enterprises in foreign markets. DOC will increase outreach and support to such enterprises through nationwide educational efforts; 4) Evaluate the enforcement process of exclusion orders issued by the U.S. International Trade Commission (ITC). IPEC will chair an interagency working group to improve the process for enforcement of Section 337/ITC exclusion orders; 5) Coordinate international capacity-building and training. IPEC will reorganize the interagency working group on capacity-building and training and embassies will follow up on a regular basis with governments that receive training to evaluate results; 6) Improve transparency in intellectual property policymaking. IPEC will look for additional ways to hear concerns and gather input from a wide range of stakeholders; 7) Improve law enforcement communication with stakeholders. DOJ and ICE will look for additional ways to engage a broad range of stakeholders in an effort to increase understanding of law enforcement operations and expand stakeholder relationships; 8) Assess the economic impact of intellectual property-intensive industries. DOC will issue an annual report on the number of jobs and contribution to the GDP of such industries; 9) Use legal software. IPEC, with the Federal Procurement Policy Administrator and the U.S. Chief Information Officer will review the mechanisms that agencies have in place in order to share best practices and ensure legal use; 10) Examine labor conditions. DOS will examine the relationship between unacceptable labor conditions and the manufacture and distribution of counterfeits and take further action if necessary; 11) Improve IPR enforcement efficacy by leveraging advanced technology and expertise. IPEC will chair an interagency working group to identify and advance new and innovative technologies to improve enforcement capabilities at the border. In addition, law enforcement agencies will look for ways to engage outside technology experts and Internet engineers to increase expertise on online enforcement approaches; 12) Increase focus on counterfeits shipped through international mail and work with express carriers. CBP will work to obtain advance data from international post operators and express carrier companies to improve targeting; 13) Educate authors on “fair use” copyright doctrine. 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; 14) Protect intellectual property at the Internet Corporation for Assigned Names and Numbers (ICANN). The National Telecommunications and Information Administration (NTIA) and the FBI will work with ICANN, in collaboration with stakeholders, so that new top-level domains do not become new venues for infringement; and 15) Consider copyright and patent “small claims” courts. The U.S. Copyright Office and USPTO are considering alternative adjudicatory processes for hearing “small claims” cases brought by copyright and patent holders.
There is also an interesting list of government enforcement “successes” since 2010 and here is one of the items:
In April and May 2012, as a result of investigations generated by the IPR Center led Operation In Our Sites, in two separate cases ICE-HSI, working with DOJ, seized over $2 million in proceeds from online sales of counterfeit goods by Chinese perpetrators. The funds were seized from correspondent bank accounts located at the Bank of China in New York under 18 U.S.C. § 981(k), which permits the U.S. Government to seize funds from a foreign institution’s interbank accounts in the United States for forfeiture to the Treasury. This was ICE-HSI’s first use of section 981(k) to seize illicitly-derived proceeds identified as part of an intellectual property rights criminal investigation deposited in a Chinese bank. . . . .