Next IPEC Will Face Wide Array of IP Enforcement Issues, Copyright Groups Say
The next U.S. intellectual property enforcement coordinator will have a lot on his or her plate, stakeholders told us in interviews this week. The government’s first IPEC, Victoria Espinel, stepped down Friday (CD Aug 14 p8). Speculating this early in the process about who will replace her is “tremendously difficult,” said Casey Rae, interim executive director of the Future of Music Coalition. But whoever does will face an array of copyright and IP protection issues as early as this fall, several in the industry said.
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None of the stakeholders offered guesses on who might replace Espinel. “The post is still new,” Rae said. “The relevant expertise could come from any combination of areas concerning intellectual property: trademark, patent, copyright, industrial design, trade secrets, etc. Espinel was from academia, but her replacement could theoretically come from anywhere.”
There are a host of IP issues before various agencies in which a new IPEC could get involved, said Sandra Aistars, Copyright Alliance executive director. Espinel led the effort to create the first Joint Strategic Plan on Intellectual Property Enforcement, which was updated again in June (CD June 21 p14). That plan laid out several short-term initiatives with the office, including a review of copyright law to be completed by October. Espinel was also appointed chair of an effort with the International Trade Commission to strengthen the enforcement of exclusion orders pertaining to IP, and was scheduled to offer recommendations on improving those efforts by December. Aistars said those projects opened an important space for input from the IPEC.
Addressing litigation tactics from patent assertion entities and negotiating IP protections could also require or benefit from input from a confirmed IPEC, said Sherwin Siy, Public Knowledge director of legal affairs. The June report listed abusive patent litigation as an ongoing concern for the administration. The plan also took issue with foreign governments’ tactics of requiring access to trade secrets or proprietary information as a condition of market access. The plan identified about two dozen IP enforcement issues the administration wanted to accomplish, including educating authors on fair use, increasing public understanding of IP issues, and calling for further voluntary measures from private firms.
The House Judiciary Committee will continue its ongoing review of copyright law, which could provide an opportunity for insight from a new IPEC, Siy said. Aistars agreed that with such an important discussion before Congress, “you'd want someone in that role quickly,” she said. Judiciary Chairman Bob Goodlatte, R-Va., launched the review of the copyright and patent system in April (CD April 25 p9). Of the 20 or so legislative goals Espinel laid out in March 2011, Congress has accomplished only about seven, the administration said in its June strategic plan.
There is also more work to be done in encouraging industry adoption of best practices in IP enforcement, Siy said. “One of the things Espinel was particularly interested in was voluntary measures, bringing people to the table and trying to have different industries agree on practices,” he said. “There’s more work to be done there, and there’s certainly been a little bit of discussion and maybe some push-back on that,” up until now, he said. Aistars said the strategic plan released in June called for a review of the effectiveness of those voluntary measures in the short term.
Predicting the future of the next IPEC is further complicated because “there’s always been a little back and forth about what the role of the IPEC is,” Siy said. “Is it merely coordinating enforcement, or is it a larger sort of policy shop?” he asked. “There’s several different places within the administration where IP policy can be formed, and even several places within the government,” among Congress, the White House and even various agencies dealing with their own rulemakings, he said. Choosing a new IPEC should also give the administration a chance to consider better funding the office, Aistars said. The position has never been fully funded or given a dedicated, permanent staff, she said, and filling the vacancy could be coupled with firming up the office, its support staff and its role within the administration.
In 2009, it took months for the White House to determine which agency should house the new IP position and who should fill the post (CD Sept 28/09 p9). None of the stakeholders we spoke with commented on a perceived timeline for the installation of Espinel’s replacement.
Several stakeholders said they hoped the administration could find someone as knowledgeable and inclusive as Espinel. Rae said “the administration would do well to try to find someone who prefers a collaborative, solutions-based approach to the issues, and has a willingness to listen closely to the experience of creators.” Under Espinel, “the administration spoke with a more unified and informed voice on intellectual property issues, and spearheaded important initiatives,” the RIAA said in a statement. “We hope the White House will move quickly to nominate a prominent and credible successor.”