PRO-IP Act

A few days ago it was reported that the House of Representatives Judiciary Committee has passed an amended version of the H.R. 4279: PRO-IP Act (Prioritizing Resources and Organization for Intellectual Property Act). The PRO-IP Act surfaced at the end of 2007 seeking to enhance civil and criminal intellectual property enforcement, including copyright infringements.

The Bill includes provisions designed to create a new position, the Office of the United States Intellectual Property Enforcement Representative (USIPER) appointed by the President and confirmed by the Senate. Reporting directly to Cabinet, this person would supervise much of the enforcement activities currently undertaken by the Department of Justice. The Bill also allows for increases to maximum penalties for those with prior convictions, as well as the seizure and disposal of equipment used to infringe intellectual property rights, with funds being directed back into the budget of the Department of Justice. Proposed changes to the ‘one work’ rule used to determine statutory damages for copyright infringement have been removed at this stage.

The nature and content of the legislation illustrates the combined lobbying power of the copyright, pharmaceutical and manufacturing sector. Dan Glickman of the MPAA stated on the introduction of the Bill:

From counterfeit medicine and fake automobile parts to pirated movies and knockoff handbags, the ill-effects of intellectual property theft are felt across many sectors of the U.S. economy. I am pleased to see a concerted effort by Congress to address this growing problem, and the MPAA looks forward to working with congressional leaders in the weeks to come.

From a public choice perspective the creation of a specific position within the White House to supervise the enforcement of intellectual property laws blurs the distinction between public and private governance. An appointee to a position of this nature would most likely have prior associations with influential corporate interests raising questions as to the potential consequences for democracy. Whilst it has been suggested that such a role would not involve policy development or influence decisions relating to prosecutions, there remains a strong likelihood that this will take place if not in a formal sense then in a subversive and largely unaccountable manner. Sigal Mandelker, Deputy Assistant Attorney General, told the House Judiciary subcommittee on Courts, the Internet, and Intellectual Property:

We are always going to be concerned when you have somebody at the White House who may be in the position of directing our enforcement or what cases we do or don't do... That would be contrary to the long-standing tradition of the department making independent decisions regarding law enforcement.

The establishment of ten attaché embassy staff to work on intellectual property enforcement issues in other countries, further serves the goals of private interests.

Further Reading
ZeroPaid, New Legislation Would Increase Penalties for Copyright Infringement (8 December 2007) <http://www.zeropaid.com/news/9133/New+Legislation+Would+Increase+Penalties+for+Copyright+Infringement> at 12 December 2007

CNet News, Proposed new piracy penalties advance in House (30 April 2008) <http://www.news.com/8301-10784_3-9932260-7.html?tag=nefd.top> at 2 May 2008

TechDirt, Can Someone Explain Why The White House Should Be Playing The Role Of Copyright Cop? (1 May 2008) <http://www.techdirt.com/articles/20080430/194141989.shtml> at 2 May 2008b

Washingtonpost, House Bill to Create Anti-Piracy Czar Advances (1 May 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/30/AR2008043003360.html> at 2 May 2008

Yahoo News, DOJ Blasts New 'Copyright Czar' Bill (13 December 2007) <http://news.yahoo.com/s/zd/20071213/tc_zd/221645> at 18 December 2007

Wasingtonpost, House Bill to Create Anti-Piracy Czar Advances (1 May 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/30/AR2008043003360.html> at 2 May 2008