Judiciary Committee Reports
Intellectual
Property Rights Enforcement Legislation
WASHINGTON (Thursday, Sept. 11, 2008) – 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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