The intellectual property enforcement bill Congress passed over the weekend has won strong bipartisan support and wide-ranging approval from the business community. It remains to be seen, however, whether the president will sign into law the Prioritizing Resources and Organization for Intellectual Property Act, or Pro-IP Act.
The bill is likely to be sent to the White House within a week, giving the president 10 days to sign or veto it. It would likely survive a veto, unless the president vetoed or ignored the bill while Congress is out of session. Congress intended to adjourn this week ahead of the November elections, but the financial bailout bill has kept it in session.
The bill's major stumbling block is a provision calling for the president to appoint a Senate-confirmed Intellectual Property Enforcement Coordinator. The creation of a new cabinet position is a significant--and perhaps most controversial--part of the bill. What exactly would the IP coordinator do, and why does it matter? Here's a look at some of those concerns.
What exactly would the IP enforcement coordinator do? The IPEC would provide guidance to other federal departments and agencies in their efforts to combat IP infringement. The IPEC would mainly achieve this by chairing an IP enforcement advisory committee, made up of the Office of Management and Budget, the Justice Department, the Commerce Department, the Office of the United States Trade Representative, the State Department, Homeland Security, Health and Human Services, the Agriculture Department, and the U.S. Copyright Office.
The IPEC cannot control how these agencies investigate or prosecute IP infringement cases--but he or she will guide the development of a "Joint Strategic Plan" the advisory committee is charged to create to combat counterfeiting and infringement. The aim of the strategic plan is to disrupt counterfeiting and IP infringement both in the U.S. and abroad, ensure that enforcement efforts aren't duplicated by the various agencies, establish a protocol for consulting with private industry, establish international standards for IP enforcement, and help other countries improve their IP enforcement efforts.
The chances of President Bush appointing an IPEC seem slim. The bill calls for the advisory committee to submit its strategic plan to Congress no later than 12 months after its enactment, so filling the cabinet position and putting the committee together could be left for the next administration.
The creation of the IPEC and the advisory committee would essentially replace the National Intellectual Property Law Enforcement Coordination Council, an interagency group that implemented the Strategy for Targeting Organized Piracy Initiative.
Is there opposition to the creation of this position? In a letter from the Commerce Department and the Justice Department, the Bush administration voiced its opposition to two components of the Pro-IP bill, one being the creation of the IPEC. Requiring the president to appoint an IPEC, the letter said, was objectionable on constitutional separation of powers grounds. It would "improperly micro-manage the internal organization of the executive branch" and create "unnecessary bureaucracy."
The added bureaucracy could create an undue burden for taxpayers, others argue. Julie Jennings, a trademark attorney with the St. Louis law firm Senniger Powers, said it might be premature to create the IPEC position.
"I'm wondering if the same thing could take place by revising copyright laws without creating this entirely new cabinet position and all of the secondary positions that are going to fall underneath that," she said.… Read more