LEGISLATIVE UPDATE - LOBBY THIS: RIAA! MPAA! MEIEA?
by Tonya Butler

On OCTOBER 13, 2008 President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act, more affectionately referred to as the Pro-IP Act, § 3325.

The Pro-IP Act, passed by the US Senate and House of Representatives in September 2008, was enacted in order to "enhance remedies for violations of intellectual property laws” by increasing penalties for intellectual property infringement, providing resources for the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) to coordinate federal and state anti-piracy task forces and by encouraging cooperation with other countries in the fight against international infringement.

The Pro-IP Act received strong support from the music, entertainment and business communities, including organizations such as the Recording Industry Association of America (RIAA), Motion Picture Association of America (MPAA), U.S. Chamber of Commerce, National Association of Manufacturers, and labor union AFL-CIO. Supporters of the bill claim that strict intellectual-property enforcement is critical to the enrichment of American culture and to the development of the U.S. economy.

Consumer groups opposed to the bill included the American Association of Law Libraries, American Library Association, Consumer Federation of America, Consumers Union, Digital Future Coalition, Electronic Frontier Foundation, Essential Action, IP Justice, Knowledge Ecology International, Medical Library Association, Public Knowledge and Special Libraries Association. The dissent feared the legislation imposed unfair penalties on non-infringing third parties and allowed the federal government to pursue enforcement on behalf of private rights holders. As a result of their efforts, some of the more controversial provisions of the bill were omitted prior to its submission to the President for signature. Those sections included:

• Increased damages for filesharing from a per album, to a per song basis;
• Creation of an entire intellectual property enforcement agency, similar to the Department Of Homeland Security; (another level of federal bureaucracy);
• Enabling the Attorney General to file civil lawsuits for copyright infringement on behalf of individual owners.

The clause that gave the Attorney General the power to initiate civil suits received the loudest objection. The Recording Industry Association of America, for example, has sued more than 30,000 individuals for infringement. They suffer no apparent obstacles to enforcing the rights of their members, however, the Attorney General, under this provision, would have the authority to sue infringers on behalf of the RIAA, effectively serving as "pro bono lawyers for private copyright holders regardless of their resources." The DOJ participated in the successful challenge to remove this provision.

When the dust settled what remained was a series of initiatives designed to encourage and strengthen intellectual property rights enforcement. A summary is as follows:

Introduced July 24, 2008 and signed into law on October 13, 2008, the Prioritizing Resources and Organization for Intellectual Property Act of 2008,

Amends federal copyright law to:

• Provide that copyright registration requirements apply to civil (not criminal) infringement actions;
• Provide a safe harbor for copyright registrations that contain inaccurate information.

Amends the Trademark Act to:

• Revise treble damages provisions and double statutory damages in counterfeiting cases;
• Prohibit the transshipment and exportation of goods bearing infringing marks.
• Prohibits the importation (current law), transshipment, or exportation, without the authority of the owner of copyright, of copies or phono-records.
Amends the Computer Crime Enforcement Act to:
• Require the Office of Justice Programs of the DOJ to make grants for training, prevention, enforcement, and prosecution of intellectual property theft and infringement crimes.

Requires the Federal Bureau of Investigation to:

• Create an operational unit to work with the Computer Crime and Intellectual Property section of the DOJ on the investigation and coordination of complex intellectual property crimes;
• Implement a comprehensive intellectual property crime program.

Directs the Attorney General to:

• Create a task force to develop and implement a comprehensive plan to investigate and prosecute international organized crime syndicates engaging in crimes relating to intellectual property theft;
• Subject to appropriations, deploy five additional Intellectual Property Law Enforcement Coordinators in foreign countries.

The Pro-IP Act also directs the President to:

• Appoint an Intellectual Property Enforcement Coordinator who shall:
• Chair the Interagency Intellectual Property Enforcement Advisory Committee established by this Act; and
• Coordinate the development, and assist in the implementation, of the Joint
Strategic Plan against counterfeiting and piracy by such advisory committee.

The IPEC appointment will replace the National Intellectual Property Law Enforcement Coordination Council, a group co-chaired by the director of the US Patent and Trademark Office (USPTO). The Coordination Council was responsible for coordinating US domestic and international intellectual property enforcement activities. The new IPEC position is more comprehensive and will potentially yield greater influence. The IPEC will report directly to the President and Congress as a member of the Executive Branch, presumably allowing greater visibility on the hill and direct access to the President, without the constraints of being associated with a particular agency or department.

The Interagency Intellectual Property Enforcement Advisory Committee will consist of several officials from the Office of Management and Budget, the Department of Justice (DOJ), USPTO, Office of the US Trade Representative, US Copyright Office, as well as the State, Homeland Security and Health and Human Services departments; the Joint Strategic Plan will establish domestic and international programs designed to enforce the rights of intellectual property holders worldwide and to combat piracy and counterfeiting.

Perspective

Critics opposed to the Pro-IP legislation are concerned that the law serves only the interest of big media, music and entertainment companies; and that the appointed IPEC is merely a figurehead put in place to project the image of a supportive and proactive intellectually property protection initiative. The real issue, from a music education perspective, and more specifically, the music industry education perspective, is that nowhere in the bill’s long list of penalties, mandates, prohibitions, enactments or appointments is there any mention of intellectual property EDUCATION. The Department of Education is not listed as one of the departments comprising the Interagency Committee chaired by the IPEC. It appears as if the Department of Homeland Security is considered more relevant to the changing intellectual property rights environment than the department whose mission it is to “promote student achievement and preparation for global competitiveness”. Something is obviously missing from this process, and I think it might be us.

When I say "us", I’m referring to those of us who have dedicated our lives, in whole or in part to providing education and information on intellectual property rights in the music and entertainment industries. Music Industry and Entertainment Business programs across the country, and those of us who provide instruction in the areas of Copyright, Trademark, Entertainment, Publishing and other intellectual Property subjects play an integral part in the dissemination of information that can potentially curtail and even eliminate the need for many of the actions considered “critical to development of the US economy”. Education is not anti-enforcement, but a necessary supplement and even precursor to enforcement. I’m reminded of the debate between abstinence and sex education. A combination of the two yields a greater likelihood of success than the individual initiatives on their own.

Music Educators are just as, if not more qualified than an FBI agent to assist in the enforcement of Intellectual Property rights because we have a keen understanding of the practical aspects of copyright usage in the market place. We know that according to the U.S. Chamber of Commerce, intellectual property accounts for more than half of all U.S. exports, worth more than $5 trillion. We know because we are center stage between the creators of artistic works, the rights holders and the alleged largest group of rights infringers: high school and college students. We are the experts because outside of law school,

THE ONLY PLACE TO RECEIVE EDUCATION AND TRAINING ON THE APPLICATION AND ENFORCEMENT OF COPYRIGHT, AND THE ONLY PLACE WHERE YOU ARE TAUGHT HOW TO REGISTER, PROTECT AND ENFORCE YOUR INTELLECTUAL PROPERTY RIGHTS, IS IN ONE OF THE DOZENS OF MUSIC INDUSTRY PROGRAMS IN THE US AND ABROAD. PERIOD.

Lobby This!
Of the numerous organizations credited with influencing the introduction and eventual content of the Pro-IP Act, intentions and motivations aside, the largest, strongest and most dominant were those that represent the music and movie business; and whatever you call them, Advocates, Representatives, Special-Interest Groups or the dreaded Lobbyists, they all serve the same purpose: to promote the interest of their specific constituencies. Good or bad they make their presence known and their voices heard.

As Music and Entertainment Industry Educators, we also have a constituency and a mission. Just as every other educational institution, organization, society, association, department or agency responsible for making a positive impact on the hearts and minds of young people, our mission is to “promote student achievement and preparation for global competitiveness."

Special representatives and lobbyists do not come cheap, which is why the appointment of the new IPEC may work to the advantage of those groups who cannot afford to wine and dine individual members of congress on a daily basis. One person, one name, one face, one road to access may be just what we need to emphasis the importance of preventative education that will only serve to enhance, not detract from enforcement.

Intellectual Property is a global product; infringement and piracy are global problems; and thanks to Congress, President Bush and the Pro-IP Act, intellectual property enforcement is officially a global initiative. We must do our part to make intellectual property education a global necessity. Lobby anyone?

Tonya Butler, Esq., LL.M. is an Assistant Professor and Coordinator of Music Business at the Rudi E. Scheidt School of Music at the University of Memphis. She is an entertainment attorney at the Memphis office of law firm Wyatt, Tarrant & Combs, and serves as the newly appointed Advocacy Representative for the Memphis Chapter of the Recording Academy.