[Ip-health] HR4279: Worrying IP Legislation

[William New]

fyi, Intellectual Property Watch had this story in December, in case it's u=
seful:

http://www.ip-watch.org/weblog/index.php?p=3D863
(sorry, password required for this one)

Intellectual Property Watch
10 December 2007
US Lawmakers Seek IP Enforcement Agency; Satellite Radio Royalties Set

By Dugie Standeford for Intellectual Property Watch
A bipartisan group of US legislators is calling for tougher civil and crimi=
nal penalties for copyright and trademark infringement through new legislat=
ion introduced last week. Meanwhile, the US Library of Congress Copyright R=
oyalty Board (CRB) has set royalties for satellite radio services, as webca=
st radio companies lobbied for rate parity.

The "Prioritising Resources and Organisation for Intellectual Property Act =
of 2007 (PRO IP)," introduced 5 December, would create an IP enforcement cz=
ar, establish a new IP division in the Department of Justice, and authorise=
 the appointment of IP officers to help foreign countries combat piracy and=
 counterfeiting.

The measure, HR 4279, won praise from the film and manufacturing sectors, b=
ut one public interest group warned its higher penalties could have uninten=
ded consequences for consumers.

The US needs PRO IP to maintain its competitive edge in the global marketpl=
ace, said House Judiciary Committee Chairman John Conyers, who co-authored =
the bill. The measure is backed by labour unions and industry groups concer=
ned about the growing economic cost of counterfeiting and piracy, currently=
 estimated at between $500 and $600 billion per year in lost sales and five=
 to seven percent of global trade, he said.

The proposal significantly increases penalties for copyright and trademark =
infringement and stiffens civil and criminal seizure provisions. It establi=
shes the Office of the United States IP Enforcement Representative in the E=
xecutive Office of the President to coordinate and improve national and glo=
bal enforcement efforts, as the president's "principal advisor" on IP enfor=
cement. The action would appear to put IP enforcement on the same level wit=
h the Office of the US Trade Representative in the executive office.

The measure authorises the director of the US Patent and Trademark Office t=
o name 10 IP attach=E9s to assist foreign governments in enforcing IP laws,=
 particularly against piracy and counterfeiting, and to help owners of US-g=
ranted rights to protect them abroad. It creates a permanent new IP divisio=
n in the Justice Department charged with coordinating law enforcement activ=
ities; transfers the functions of the existing Computer Crime and IP sectio=
n to it; and gives the agency additional funding and personnel.

Motion Picture Association of America Chairman Dan Glickman said the busine=
ss community "can speak in one voice" in support of the legislation. Nation=
al Association of Manufacturers President John Engler called it an importan=
t first step in addressing "an issue plaguing nearly every American manufac=
turer."

But Public Knowledge President Gigi Sohn said that while the bill "rightly"=
 targets enforcement of copyright law against commercial infringers, some o=
f the provisions could hurt ordinary consumers. Seizing expensive manufactu=
ring equipment used for large-scale infringement from a commercial pirate m=
ight be appropriate, she said, but taking a family's all-purpose computer i=
n a download case, as the measure would allow, is not.

The proposal also diverges from patent reform legislation recently approved=
 by the House, Sohn said. Instead of limiting damages to relative harm, as =
the patent bill does, PRO IP "takes already extraordinary copyright damages=
 and increases them," heightening the threat of litigation intended to stif=
le competition and potentially forcing faster and larger settlements from i=
nnovators, she said.

The House Judiciary Subcommittee on Courts, the Internet and Intellectual P=
roperty will hold a hearing on the measure next week, said Chairman Howard =
Berman, a California Democrat.

Help for Webcasters?

On 3 December, the CRB set satellite radio performance royalties for the pe=
riod 1 January 2007 to 31 December 2012.

The order requires XM Satellite Radio and Sirius to pay a licence rate of s=
ix percent of gross revenues subject to the fees for 2007-2008, 6.5 percent=
 for 2009, seven percent for 2010, 7.5 percent for 2011 and eight percent f=
or 2012.

Revenue subject to royalties includes subscription fees and income from adv=
ertising from channels other than those that use only incidental performanc=
es of music.

Reaction to the ruling was tepid. The decision ended a year-long proceeding=
 with record labels and gives satellite radio broadcasters certainty about =
music performance royalties through 2012, said XM Chairman Gary Parsons. Th=
e fees fall within the range projected by financial analysts, he said.

SoundExchange, which collects and distributes digital performance fees for =
artists and copyright owners, said its reaction to the ruling was "mixed." =
The decision "dramatically" increased the rate now paid by the services, va=
lidating the overwhelming evidence SoundExchange presented about the critic=
al importance of music to satellite programming, the organisation said. How=
ever, it had sought rates starting at eight percent.

The CRB rejected nearly all evidence submitted by XM and Sirius, but federa=
l law requiring that any new royalty rate not overly disrupt satellite serv=
ices led it to set fees at half the value it determined artists and record =
companies would have received in the marketplace, SoundExchange said. The r=
esult once again "highlights the inequity of a rate standard" that forces m=
usic creators to subsidise some music services with below-market rates, Sou=
ndExchange Executive Director John Simson said.

But webcasters, whose war against a CRB royalty ruling they say will stifle=
 their industry (IPW, Copyright Policy, 15 July 2007) remains unresolved, m=
ay be hoping the satellite decision will help them.

In letters to Berman and Senate Judiciary Committee Chairman Patrick Leahy =
(D-Vermont), five Internet radio services, including RealNetworks, AOL Radi=
o, Yahoo! Radio, Pandora and Live365, said Congress should equalise royalti=
es among all radio services, whether webcast, satellite, cable or tradition=
al broadcast.

Broadcasters pay no royalties, and most satellite and cable radio services =
historically pay between three percent and 7.5 percent of revenue, but Inte=
rnet radio fees now average more than 50 percent of revenue, the companies =
said on 5 December. They urged Congress, which is investigating the traditi=
onal broadcast exemption, to end the "vastly disparate royalty obligations.=
"

Dugie Standeford may be reached at info@ip-watch.ch.

This work is licensed under a Creative Commons License. All of the news art=
icles and features on Intellectual Property Watch are also subject to a Cre=
ative Commons License which makes them available for widescale, free, non-c=
ommercial reproduction and translation.

You can subscribe for automatic notifications of these stories, via the RSS=
 feed or via the e-mail alerts. Subscribers can choose the frequency of not=
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----- Original message -----
From: Ethan Guillen <ethan.guillen@essentialmedicine.org>
Date: Wed, 05 Mar 2008 21:26:39 -0800
Subject: [Ip-health] HR4279: Worrying IP Legislation
To: "univ-list@lists.riseup.net" <univ-list@lists.riseup.net>,         Iplu=
sA <iplusa@lists.keionline.org>,         "ip-health@lists.essential.org" <i=
p-health@lists.essential.org>

>Hello All,
>
>Below is a link to a bit of analysis and an editorial and link to
>information on a House bill that could have some troubling effects.
>
>Has anyone been following this closely?
>
>Thanks,
>Ethan
>
>http://www.publicknowledge.org/bill/110-hr4279
>
>----------------------------------------------------------------------
>This article was sent to you by someone who found it on SFGate.
>The original article can be found on SFGate.com here:
>http://www.sfgate.com/cgi-bin/article.cgi?file=3D/c/a/2008/02/17/EDR1V0LCD=
.DTL
> ---------------------------------------------------------------------
>Sunday, February 17, 2008 (SF Chronicle)
>U.S. expanding the law - domestic and foreign - to benefit corporations
>Ben Klemens
>
>
>   As a U.S. taxpayer, you may be contributing to fewer cheap drugs on
>international shelves. Public dollars support the Office of the U.S. Trade
>Representative, the trade agency with authority to pressure foreign
>governments to change their domestic intellectual property laws. As such,
>the agency actively presses for laws that would keep generic drugs out of
>markets worldwide.
>   Congress is considering legislation to create a separate executive bran=
ch
>office dedicated to using government resources for lobbying other
>countries to change their laws, sometimes exclusively to benefit certain
>U.S. companies.
>   That's a bad idea for patients here and abroad, because it would give t=
he
>U.S. government more power in an area where it should instead have less.
>   The international intellectual property system is based on an ingenious
>1994 international treaty: Rather than establishing an unwieldy
>international copyright and patent office, the agreement merely stipulates
>that every signatory country must have domestic copyright and patent
>systems that meet certain basic requirements.
>   The trade agency's interpretation of what other countries' domestic law=
s
>need to cover expands beyond the broadest definitions within U.S. law. To
>give one example, data gathered during clinical trials of new drugs are
>not protected by copyright, patent or trademark in the United States. But
>as a rule of bureaucratic procedure, the Food and Drug Administration
>restricts use of test results finding that a brand-name drug is safe when
>considering the safety of identical generic drugs. Even though it is hard
>to argue that this FDA rule is an intellectual property law, the trade
>representative is using its authority to press for comparable rules
>restricting the approval process for generic drugs in other countries.
>   It doesn't take much sleuthing to follow the money back to the U.S.
>pharmaceutical manufacturers on the trade agency's advisory panel, who can
>maintain monopolist profits while a generic drug is blocked from the
>market in Guatemala, Malaysia or any of the dozen other countries that the
>trade agency is pressuring to adopt U.S.-style restrictions on generic
>drug approval.
>   Proselytizing U.S. intellectual property law would be easier if we knew
>exactly what U.S. intellectual property law is, but many debates still
>rage in the courts and in the law journals. Is software patentable?
>Justice Breyer, Justice Stevens and the U.S. Patent and Trademark Office's
>semi-judicial board of appeals have clearly expressed that it is not. Yet
>the trade representative thinks it is, which is why a 2000 agreement with
>Jordan required that country to change its domestic laws to better
>accommodate the patenting of software, and its nonbinding reports find
>fault with countries whose patent systems do not allow software patents.
>   The U.S. Trade Representative's treaties bind all parties to rewrite
>their
>domestic laws accordingly. That is, the agency can dictate how Congress is
>to write domestic law, and how federal courts interpret it, via its
>international treaties. We all want intellectual property law to evolve
>with the times, but every new treaty by the trade agency makes evolution a
>little more difficult.
>   HR4279, now pending in the House Judiciary Committee, would establish a=
n
>Office of the U.S. Intellectual Property Enforcement Representative,
>spinning off intellectual property from the trade representative's
>portfolio into its own office, without repealing the agency's authority to
>negotiate other countries' intellectual property laws. The new office
>would have authority to define the scope of intellectual property as it
>sees fit, and it would have expanded ability to use the resources of other
>departments (the Department of Justice, the State Department, Homeland
>Security, state and local governments, and many others) in pressuring
>other countries to change their domestic laws accordingly.
>   The 1994 treaty on trade-related international property defines a simpl=
e
>base for copyright, patent and trademark, and it makes sense for the trade
>agency to hold countries to the basic framework. But our trade
>representative has gone well beyond that, to simply interpreting
>intellectual property as its corporate advisory boards wish, and then
>using the muscle of the U.S. government and the resources of U.S.
>taxpayers to press other countries into changing their laws to suit that
>interpretation. Congress needs to restrict the trade representative's
>expansive tendencies, instead of releasing what little rein is left.
>
>   Ben Klemens is a guest scholar in Economic Studies at the Brookings
>Institution. Brookings is a private nonprofit organization devoted to
>independent research and innovative policy solutions.
>----------------------------------------------------------------------
>Copyright 2008 SF Chronicle
>
>
>------ End of Forwarded Message
>
>
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William New, Editor-in-Chief
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