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Obama's IP Czar Wants to Hear From You!

Victoria Espinel, the newly appointed Intellectual Property Enforcement Coordinator (otherwise known as the U.S. “IP Czar”) under the Obama Administration, recently addressed the American public, encouraging people to speak out on the state of U.S. copyright and trademark enforcement laws and how best to go about protecting intellectual property and content abroad.

Historically, the Office of the U.S. Trade Representative (USTR) has welcomed commentary like this only from industry insiders through annual Special 301 reports that are filed by industries and their representative trade groups. Various companies and their representatives, including the entertainment industries, have long used the Special 301 reports to comment on their particular grievances regarding inadequate copyright enforcement laws in countries such as Canada, Mexico, China, Russia, Brazil, Israel, and other nations around the world. These trade groups hope that their complaints will be followed up by sanctions by the U.S. government against the other countries until remedies are in place in those “watch list” nations that meet U.S. legal and private sector standards.

In reality, it is widely known that the USTR receives these Special 301 reports from industry representatives with some doubt and reservation, as the data supporting the allegations of lax copyright enforcement measures is believed to be exaggerated, crafted to support the agendas of the rights holders to secure more profits from nations where piracy and counterfeiting is pervasive. For example, Ars Technica produced a report in 2008 on the inaccurate - or even fabricated - statistics that content industries filed in their Special 301 reports to the USTR.

This year, to the credit of the new IP Czar, the USTR is now asking for legitimate input from rights holders, industry representatives, and the public. This time they’re also demanding supporting documentation for each of the grievances that rights holders may claim. One might argue that this is an acknowledgement by the USTR of the biased information that they’ve been receiving in years past, and aim to change their procedures.

What does this mean for consumers? In short, this is good news. Why? Because now when governments sit down to discuss counterfeiting, piracy and potential solutions, they’ll be using accurate data, which will potentially limit the grounds that they will cover to amend their legislation, thereby continuing to potentially maximize the freedoms that consumers have had in their respective jurisdictions.

As the Entertainment Consumers Association continues to make gamers and consumers aware of developing and changing legislation, we also aim to empower you to make your voice heard. We invite you to make your thoughts known, by sending the letter below!

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Subject:

Your Letter:

RE: 2010 Special 301 Review
Docket Number USTR-2010-0003

Jennifer Choe Groves
Senior Director for Intellectual Property and
Innovation and Chair of the Special 301 Committee
Office of the United States Trade Representative
600 17th Street NW
Washington, DC 20508 USA
Filed electronically via Regulations.gov

Dear Ms. Groves:

Thank you for hearing the comments of consumers of entertainment products.

U.S. copyright laws must balance the interests of intellectual property content owners with the rights and interests of their consumers.  Copyright laws may provide owners with the exclusive rights to use their works as they see fit, though such rights are not absolute, and are limited in time, nature and scope.

As a consumer of entertainment products, copyright laws are already imbalanced in favor of stronger rights for content owners.  The fundamental principles that benefit a strong and productive consumer and content creator relationship should be defined as follows:

• Copyright laws should seek to protect consumers - wherever they may reside - and the public interest, as well as content creators - not just the technology limiting access to content, which shifts the law in favor of the content creator. 
 
• These laws should encourage a better understanding through intellectual property education of the fundamental concepts of intellectual property throughout all societies, in the Court systems, government and with the general public.  Before making any rulings, it would be wise for governments to undertake an unbiased review of new technologies for the purposes of understanding their functions and how they might benefit or harm consumer, in addition to industry, interests.  Such new technology may include new forms of data distribution such as Peer-to-Peer networks, digital content creation, as well as devices that may potentially circumvent the copyright protection features of current technology.

• Modifying copyright laws to modern technologies should not undermine consumer rights or constrain common consumer practices that have been in place for many years in those nations.  Selecting narrow, specific provisions that define a particular type of copyright or trademark infringement is one particular method that will defend and laud not only content owners’ rights, but also protect consumers from egregious blanket policies.

• Technology which weakens the existing rights of consumers while strengthening the protection of content should not be valued nor promoted.  As it has never been a violation of copyright law for a consumer to listen to music or read a book in the privacy of one’s residence, electronic copies of such works should be treated in the same fashion.  Further, current laws, which allow making a personal backup copy for data, either in digital form or in physical form, should not be diminished.

• Encourage governments, including our own legal system, as well as those of other nations, to further define penalties for copyright and trademark violations so that the Courts will have a common, shared threshold of consequences for violations.  If the Courts are to uniformly enforce intellectual property, common standards throughout the provinces must be made and adhered to.  Again, this concept returns to the importance of intellectual property education in our society.

History has shown that consumers will not accept a series of laws that place industries ahead of them.  A balance must be met between content creators and consumers in order for a healthy and productive society to be achieved.  Any copyright legislation to advance business and consumer interests must embody these principles.  Consumers will continue to push for legislation which not only protects copyright owners, but also protects consumers from potentially egregious and one-sided policies.

If you have any questions on this or other similar issues please contact Jennifer Mercurio, the Entertainment Consumers Association’s Vice President & General Counsel, at jenn@theeca.com.

Sincerely,

Jennifer Groves

Office of the United States Trade Representative