The White House's "IP Enforcement Coordinator" (IPEC), often referred to as the IP Czar, Victoria Espinel, has released the administration's 2013 Joint Strategic Plan for Intellectual Property Enforcement
, which she's required to put out under the law that created her position, the ProIP Act. When the last report came out, in 2010, we noted that it wasn't as bad
as we'd expected, though it still had some serious problems. The latest report is actually a decent improvement on that one, going much further in recognizing some of the problems many of us have with how these issues are handled. Even the announcement about the report is better. In 2010, even though the report is officially named above, the announcement about it called it the Joint Strategic Plan to Combat Intellectual Property Theft
. This year, that inflammatory and misleading language is definitely toned down.
More importantly, there are a lot of good (and somewhat unexpected) things in the report, which shows that Espinel and her office have been paying attention to the concerns many of us have raised over the years, about how the one-sided focus on "piracy" was misleading and not actually helpful. The full report
is worth a read, but let's highlight a few points. The report highlights a key point that we've made over and over again, that the best way to actually deal with "piracy" is through innovation, because when innovation is allow to flourish, solutions present themselves:
With respect to the online environment, the Administration believes that when Americans and people
around the world are given real choices between legal and illegal options, the vast majority will want
to choose the legal option. Accordingly, we encourage the further development and use of legitimate
online services as an important part of an effective approach to reducing infringing activity. Today there
are a myriad of legitimate ways to obtain music, video, books, games, software, and other entertainment
and educational materials through a wide variety of business models. These include paying per use, paying
per copy, and paying a fee for access to a collection of works; allowing customers to pay what they
wish; and legitimate content that is available for free, including entertainment industry portals and artists
and authors using systems to permit free distribution of their works under conditions that they choose.
We believe that legitimate goods, including digital goods, offer clear advantages over infringing ones
regardless of price. Use of legitimate goods compensates artists, creators, and those who invest in bringing
their works to the public, and provide incentives for future creation and distribution. In addition,
legitimate goods are often of higher quality, come with express or implied warranties or guarantees
of quality, offer customer services, and do not pose the same risk of viruses or malware. They may also
include extra features not available with infringing content. And, increasingly, they may be more convenient
and easier to find.
We support and will look for additional ways to encourage and facilitate efforts that will help expand
the reach of legitimate alternatives to infringement, including through the development of copyright
registries and online databases, micro-licensing arrangements, and other market-driven mechanisms
to facilitate smooth and efficient access to content. We also encourage the work of the U.S. Copyright
Office to update and improve the copyright registration and recordation system in ways that will facilitate
licensing and encourage public-private partnerships.
To some extent, this may be overstating the playing field today with regards to where it should be
, and fails to recognize the hurdles that are sometimes put up to prevent legal services from becoming truly convenient and powerful. But we have been moving in the right direction, and it's great to see the acknowledgement that innovation is the way forward, and holding back innovation with crazy licensing demands does more harm than good.
The paper also focuses heavily on increasing transparency and public outreach, which is important, since this topic has long been dominated by certain special interests:
The Administration strongly supports improved transparency in intellectual property enforcement
policy-making and international negotiations.
That's good, but until the USTR actually gets on board with this (and recognizes that transparency is about sharing information to the public, not just listening to stakeholders) we still have a long way to go. The fact that the TPP (and likely TAFTA to follow it) is going to have large intellectual property sections negotiated in complete secrecy is a huge problem. If the IPEC wants to commit to true transparency, it needs to get the USTR on board. The fact that the report, elsewhere, celebrates the signing of ACTA (which was similarly negotiated with almost no transparency) as well as some very poorly designed trade agreements with Panama, Colombia and South Korea suggests that this is still a real problem, where the administration has, unfortunately, not yet changed its strategy, despite its claimed interest in transparency.
There's also a whole section on getting content creators much more familiar with fair use. Considering that fair use is often something that these kinds of documents ignore, this is really impressive.
Effective enforcement is critical to providing meaningful protection of intellectual property rights, but
enforcement approaches should not discourage authors from building appropriately upon the works of
others. We recognize the work that agencies across the U.S. Government are doing in the area of intellectual
property education, and their efforts to increase and improve this work in the digital environment.
This work includes efforts at the USPTO and the U.S. Copyright Office to help the general public better
understand the Constitutional purpose and value of intellectual property laws, and the scope of both
protections and exceptions in such laws.
The Administration believes, and the U.S. Copyright Office agrees, that authors (including visual artists,
songwriters, filmmakers, and writers) would benefit from more guidance on the fair use doctrine. Fair
use is a core principle of American copyright law. The Supreme Court has repeatedly underscored fair
use provisions in the Copyright Act as a key means of protecting free speech, and many courts across
the land have upheld the application of fair use as an affirmative defense to infringement, in a wide
variety of circumstances.
In order to make fair use more accessible to the authors of the 21st century, ease confusion about permissible
uses, and thereby encourage the production of a greater variety of creative works, the U.S. Copyright
Office, working in consultation with the Administration, will publish and maintain an index of major fair
use decisions, including a summary of the holdings and some general questions and observations that
may in turn guide those seeking to apply the decisions to their own situations.
The specifics here will matter, but the fact that they'll be pushing fair use, and not ignoring it or hiding it away, is definitely a step forward.
It's also worth noting a very different tone and choice of words in the paper than the usual biased choices. It repeatedly, correctly, refers to "infringement" rather than loaded terms like "piracy" and "theft." For most of the paper (there are a few exceptions) it focuses on the areas where real threats may exist: with counterfeit drugs (though, too often, we see that conflated with reimported legitimate drugs) and military parts. The paper really doesn't go into the usual hysterics you see from government documents about online copyright infringement, which is a welcome change.
As mentioned, there are still some issues with the plan. We already mentioned the support for ACTA, TPP and other USTR agreements that are questionable at best. It also talks up the DOJ's increasing efforts around enforcement, some of which have been quite concerning (Megaupload, anyone?) and increasing efforts for IP enforcement around the globe, which too often has meant having diplomats act as Hollywood's enforcers in other countries. The report spends a lot of time on "trade secret" enforcement, which is a big buzzword, especially with bigger companies. This is a dangerous red herring, where big companies are seeking laws and enforcement that often will be used to block disruptive innovators, but it's still better to focus on that rather than some other overhyped claims of copyright infringement.
It also highlights the Department of Commerce's absolutely awful report
that counted all grocery store employees as having jobs because of "intellectual property." That report has been widely abused by maximalists to argue that we need stronger IP laws, when that's not what the report shows at all. This latest plan announces that this report will now be updated annually, and that it will "will calculate the number of jobs and the contribution to the GDP on an annual basis." I hope that they seriously improve their methodology in time for the next release.
On the whole, this report is a big step forward in both substance and tone. There are many points in there that I might quibble with, but given the kinds of documents that we're used to
seeing come out of various governments when it comes to intellectual property issues, this one is quite well done. Combined with today's news about the FTC going after patent trolls
, it actually seems like the administration may realize that "more, stronger intellectual property" and "greater enforcement at all costs" is not the same as effective
strategies for promoting the progress of science and the useful arts.