Judiciary Committee Reports Intellectual Property Rights Enforcement Legislation
Press Release
JUDICIARY COMMITTEE REPORTS INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT LEGISLATION
The Senate Judiciary Committee today reported legislation to address intellectual property rights enforcement and protect American innovation. The Enforcement of Intellectual Property Rights Act was approved by the Committee in a 14-4 vote.
The legislation was introduced in July by Chairman Patrick Leahy (D-Vt.) and Ranking Member Arlen Specter (R-Pa.), and is cosponsored by Judiciary Committee members Dianne Feinstein (D-Calif.), John Cornyn (R-Texas), Ben Cardin (D-Md.), Sheldon Whitehouse (D-R.I.), and Orrin Hatch (R-Utah). Senators Evan Bayh (D-Ind.) and George Voinovich (R-Ohio) are also cosponsors of the legislation. The bill's cosponsors have introduced a number of intellectual property enforcement proposals in the 110th Congress, and the bill reported Thursday reflects a measured compromise. The legislation would authorize the Attorney General to enforce civil copyright laws and would enhance civil and criminal intellectual property laws. It would also provide increased resources for Department of Justice programs to combat intellectual property theft, and provide coordination and strategic planning of federal efforts against counterfeiting and piracy.
After the panel's vote, Leahy said, "We all know that intellectual property makes up some of the most valuable, and most vulnerable, property we have. We need to do more to protect it from theft and abuse if we hope to continue being a world leader in innovation. I am pleased the Committee has reported this legislation, which will provide the tools, resources, and structure needed for law enforcement at all levels to protect our intellectual property and to prosecute those who steal it."
"With intellectual property contributing so heavily to our national economy, it has become one of our most valuable assets," Specter said. "This bill gives our government the additional tools it needs to protect American innovation by enhancing the civil and criminal penalties for intellectual property violations and discouraging criminal organizations from entering the counterfeiting and piracy market. I look forward to working with my colleagues in the Senate to get this legislation to the President's desk."
"Intellectual Property drives the national economy and California's economy," Feinstein said. "American authors, artists, and innovators are the best in the world. I am pleased the Judiciary Committee has reported out this important bill, which will help strengthen efforts to combat the proliferation of counterfeit goods."
"The Bush Administration has done little to protect one of our country's most vital strategic and economic interests - our intellectual property. It has cost our nation at least $200 billion and an estimated 750,000 jobs," said Cardin. "I believe the Enforcement of Intellectual Property Rights Act of 2008 will provide the teeth our law enforcement agencies need to clamp down on those that engage in this illegal conduct."
"Piracy, counterfeiting, and other intellectual property crimes cost American businesses $250 billion each year -- more than all other property crimes combined -- but the federal government simply hasn't been effective to stop it," said Whitehouse. "Working on investigations as Rhode Island's U.S. Attorney, I saw that there was simply no substitute for investigators and time. This bill will put more FBI agents on the intellectual property beat to go after foreign criminals who steal Americans' ideas and hard work."
Hatch said, "I am pleased that S. 3325 was reported out of the Judiciary Committee today. It's an important bill and I've enjoyed working with Chairman Leahy and Ranking Member Specter to perfect the language. Yesterday, Finance Committee Chairman Max Baucus and I introduced an IP enforcement bill, which focuses on fighting international counterfeiting and piracy. I believe that both the Finance and Judiciary Committee bills are key to protecting our nation's intellectual property rights bother here and abroad."
Bayh said, "Until we take more aggressive action to curtail intellectual property theft, we will continue to be robbed of profits, jobs, and legal protection of our best ideas. America will not be able to lead the global economy if we buy from our trading partners when they have a comparative advantage, and they steal from us when we have a comparative advantage. Today, the Senate Judiciary Committee took a huge step forward in preventing the United States from forfeiting its most valuable asset in the global marketplace: American ingenuity."
"In the fierce competition of the 21st-century global marketplace, intellectual property is one of the few areas where America has a clear advantage over foreign competitors. It is vital that we protect that advantage, level the playing field and ensure continued economic growth for Americans," Voinovich said. "This vital legislative is a critical step toward safeguarding the economic health of our country by improving the management, coordination and effectiveness of our nation's intellectual property enforcement efforts."
The Enforcement of Intellectual Property Rights Act has the support of several organizations, including the U.S. Chamber of Commerce, the National Association of Manufacturers, the Property Rights Alliance, and the International Trademark Association.
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Three amendments were adopted during today's markup of the Enforcement of Intellectual Property Rights Act.
CHANGES INCLUDED IN MANAGERS' AMENDMENT
TO S. 3325, THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS ACT OF 2008
Forfeiture. The amendment strikes section 1204 of title 17 from the list of offenses that subject property to forfeiture under new section 2323 of title 18. This amendment responds to comments from the public interest community and others that, unlike the other offenses listed in new section 2323, 1204 offenses do not currently give rise to civil forfeiture.
Responding to input about the potential breadth of civil forfeiture and the possibility that third party information may be disclosed, the amendment provides that, in addition to the protections of Chapter 46, the court must enter an appropriate protective order to ensure that confidential, private, proprietary, or privileged information is not improperly disclosed or used.
Impoundment. The amendment responds to issues raised about the scope of records documenting the manufacture, sale, or receipt of things involved in an infringement. The amendment strengthens the protective order language in section 503 of title 17 and applies the same procedures and protections in ex parte applications for records in copyright infringement context that currently apply in the trademark infringement context. The amendment also improves the protective order requirement in the ex parte trademark context by harmonizing that language with the strengthened language this amendment provides in the copyright context.
Transshipment. In response to issues raised about the potential unintended consequences of deeming an illegal distribution the transshipment of copies or phonorecords the making of which would have been illegal under U.S. law, the amendment expands section 602 of title 17 only to exports, no longer to transshipped copies. The amendment does not affect transshipped or exported goods bearing infringing marks.
Intellectual Property Enforcement Coordinator. Based on input about the appropriate scope and role of the IPEC position created in section 401, the amendment adds that the IPEC shall facilitate the issuance of policy guidance to assure coordination of intellectual property rights enforcement and consistency with other law.
Role of Agencies. Section 405 currently specifies that nothing in title IV shall derogate from the duties and functions of the Register of Copyrights. The amendment extends this savings clause to all Departments.
Local Law Enforcement Grants. The amendment increases the required share of funding that state and local governments must provide to receive a grant under section 501 of the Act. The amendment requires a 25% match and removes the Attorney General's authority to waive the match.
DOJ Units. In response to comments from the Department of Justice, the operational unit of the FBI created by section 502(a)(1) of the Act is not restricted to working on complex, multi-district or international crimes. Also in response to comments from the Department of Justice, the amendment changes the requirement that computer hacking or intellectual property crimes units are "assigned" at least 2 FBI agents to ensuring that each is "supported" by such agents. Based on requests from other Senators, each unit will be assigned at least two Assistant United States Attorneys responsible for investigating and prosecuting intellectual property crimes.
Authorization of Appropriations. The amendment strikes 506, which was a general authorization of appropriations for title V.
GAO study. In response to issues raised by manufactures, the amendment requires a GAO study on how the federal government can better protect the intellectual property of manufacturers by quantifying the impacts of imported and domestic counterfeit goods. The GAO is to submit a report to Congress on this study within one year of enactment.
Sense of Congress. The amendment adds a sense of Congress about the importance of preventing criminal violations of the intellectual property laws.
Numerous technical edits have been adopted in this amendment:
In the harmless error provision, clarifying that it is the "inaccuracy of the information," rather than the "inaccurate information" that, if known by the Register, would have caused the Register to refuse registration (page 7, ln 13);
Amending the requirement that Advisory Committee members be Senate-confirmed representatives to accommodate the absence of such a representative in the Copyright Office (page 25, ln 22);
Clarifies in section 206 of the Act that the clauses "constituted an infringement of copyright" and "would have constitute an infringement of copyright if this title had been applicable" are separate by adding ", or which" after the first clause (page 12, ln 8);
Removes the requirement in section 502(b) of the Act that the Attorney General use a statutorily-created Task Force as the mechanism to develop and implement the required plan to combat organized crime (page 43, ln 10);
Changes the role of the Intellectual Property Law Enforcement Coordinators from "Coordinating United States law enforcement activities" to "Assisting in the coordination" (page 46, ln 1);
Changes the phrasing from "piracy" where it appears in title IV to "infringement," which is a defined term in intellectual property law.
Also added to the Enforcement of Intellectual Property Rights Act was an amendment to add the U.S. Department of Agriculture to the Advisory Committee in Section 401 of the legislation, and an amendment to provide an orderly transition from the National Intellectual Property Law Enforcement Coordination Council to the Intellectual Property Enforcement Coordinator.
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