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Sustaining Democracy in a Digital Age

A Blog from New America's Media Policy Initiative

The Miseducation of IP

Published:  June 25, 2010
Stock photo (modified from PugnoM, flickr)

What does intellectual property mean in the twenty-first century? 

According to the World Intellectual Property Organization (WIPO), intellectual property "refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce."

But in an age of remix culture and Creative Commons, business method patents and open source software, the definition of intellectual property is hard to pin down, and the ability to share it through numerous modes of technology means it is equally hard for the government to enforce its protection. In light of these challenges, on Tuesday, June 22, the U.S. released its first ever Strategic Plan on Intellectual Property Enforcement. Introduced by Victoria A. Espinel, U.S. Intellectual Property Enforcement Coordinator (IPEC), at a meeting of the Senate Judiciary Committee, the plan reflects the opinions of numerous Federal agencies (like the Department of Justice, Health & Human Services and the Office of the U.S. Trade Representative), as well as over 1,600 public comments. While the report offers an array of solutions and actions, there remains a considerable number of obstacles in maintaining a balance between the protection of intellectual property rights and the cultivation of an open and engaged culture.

Created to ensure the protection of U.S. ideas and inventions, the 61-page plan addresses six primary actions that the Federal government will take to enhance intellectual property rights. From the plan, these actions include:

  • Leading by Example (i.e. establishing a U.S. government-wide working group to prevent U.S. government purchase of counterfeit products)
  • Increasing Transparency
  • Ensuring Efficiency and Coordination (on the Federal and State levels)
  • Enforcing US Foreign Rights
  • Securing US Supply Chain (especially in medical products and pharmaceuticals)
  • Building a Data-Driven Government

As the report notes, these actions are meant to foster innovation, promote job retention and ensure health & national security. The plan also underscores current efforts to protect US goods against piracy on an international level, specifically in the pharmaceutical, medical devices, software, films and music industries. 
On the morning of June 23, 2010, the Senate Judiciary Committee convened to review the report and to hear testimony from Ms. Espinel alongside several industry leaders. Chairman Patrick Leahy (D-Vermont) opened the meeting with examples and stats. Leahy cited an AFL-CIO statistic indicating a loss of over 200,000 jobs in the U.S. due to increased piracy and counterfeiting. Additionally, his examples included a concern for the safety of US national security due to sales of pirated semiconductor chips used in U.S. military equipment. The questioning of Espinel continued around the room from committee members such as Sen. Tom Coburn (R-Oklahoma), Sen. Sheldon Whitehouse (D-Rhode Island) and Sen. Amy Klobuchar (D-Minnesota). Topics ranged from medical device counterfeiting to peer-to-peer networks.


Following Espinel's testimony, the second panel featured industry representatives Barry Meyer, Chairman and CEO Warner Bros. Entertainment Inc.; Paul E. Almeida, President of Department for Professional Employees, AFL-CIO; David Hirschmann, President and CEO Global Intellectual Property Center U.S. Chamber of Commerce and Caroline Bienstock, President and CEO of Carlin America. Each panelist provided detailed statements of support for the new strategy. For example, Meyer spoke not just to the losses incurred by Warner Brothers, but also to the innovations within the industry as a response to counterfeiting; such as the development of multi-platform Blu-Ray discs. Additionally, it was of consensus among panel members that help from the government is key in defending IP rights. It is worth noting that representatives from public interest groups were not included as witnesses in these hearings. This is of concern as IP users should be welcome at the table to voice their opinions on the matter.

Additionally, beyond the need for stricter enforcement rules - both domestically and internationally - the plan neglects measures to better educate the general population about the structure of intellectual property and the potential consequences associated with copyright infringement. IP law is complex and continues to become more so as emerging technologies challenge past statutes. Educating and keeping communities informed about IP law and its applications should be considered as a proactive step towards minimizing illegal activities. In the context of combating epidemic diseases, efforts to educate and prevent only result in lower instances of reactive treatment; the same applies to informing the public about intellectual property laws. Thus, provisions that encourage education of correct uses for IP and copyright may alleviate the need for such enforcement efforts. An approach echoed by members of the industry panel. The task at hand for the committee is to strike a balance in serving both the interest of those holding intellectual property rights and those vested in preserving cultural freedoms.

As a part of this, additional explorations into copyright issues are needed that look beyond the economic losses to consider the potential cultural trade-offs that result from heavier restrictions. Addressed primarily under the section "Enforcement Activities to Date: Library of Congress/The Copyright Office," considerations specific to copyright law in the new plan are limited. Moreover, copyright is quickly bundled in the beginning of the report under "intellectual property" along with trademark, trade secrets etc. While the two are not mutually exclusive, from a legal standpoint, patent infringement does not require directly copying someone else's invention in the way that copyright infringement does. As University of Namur's Severine Dusollier notes in his proposed study on behalf of the WIPO, "The natural scope of copyright is rather to control the public diffusion of the work to a public...Copyright has never been about regulating access to or use of works." If it is indeed the Administration's fundamental objective to ensure a democratic society where freedoms include the opportunity to create, to innovate and to contribute to the scientific environment, then examining current copyright policy from a more nuanced perspective is a must.

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