The Center for Democracy & Technology respectfully submits these comments in response to the September 13, 2018 Federal Register notice requesting public input regarding the development of an updated Joint Strategic Plan on Intellectual Property Enforcement.
New digital technologies, services, and the internet have led to novel factual disputes, calls for new types of enforcement actions, and areas of legal uncertainty on copyright issues. At the same time, growing tensions between trading partners regarding the use of intellectual property and enforcement of IP rights have placed even greater weight on the need for a coordinated approach to both trade negotiations and IP enforcement. CDT shares the Coordinator’s interest in crafting a practical, workable, approach.
Although these comments focus specifically on copyright, some of the more general principles set forth may also be useful for other areas of intellectual property. However, those areas raise distinct issues that the Intellectual Property Enforcement Coordinator (IPEC) must take into account when determining how best to craft enforcement strategies and devote resources to them. For example, some forms of counterfeiting pose serious risks to human health and safety that copyright infringement does not. CDT appreciates that, in 2017, the bulk of the enforcement actions taken by the Intellectual Property Task Force (IPTF) focused on the interception of counterfeit goods, many of which posed these health and safety risks.
On copyright matters, CDT seeks pragmatic approaches to policy and enforcement that respect the rights of creators without curtailing the internet’s tremendous potential for fostering innovation and free expression. We support vigorous enforcement of existing copyright laws and view such enforcement as consistent with both innovation and free expression. However, the Joint Strategic Plan (JSP or Plan) should focus on tactics and practices that do not impose significant costs on innovation or constrain free expression.
The landscape has not changed dramatically since the creation of the first JSP in 2010, and many of CDT’s comments are consistent with the observations and suggestions that CDT made during the development of the 2010 JSP. Indeed, these multi-year plans are designed 3 to span across administrations in order to ensure greater consistency and continuity in enforcement efforts, and provide predictability and stability for both industry and consumers. CDT supports the IPEC maintaining a similar approach to enforcement in the new JSP. Above all, CDT offers the following suggestions:
- The Plan should not call for imposing new network-policing roles on internet intermediaries.
- The Plan should target enforcement against true bad actors and avoid ratcheting up copyright protections across the board in a manner that would impair legitimate business activity and chill technological innovation and fair use.
- The Plan should focus on effective and efficient use of existing tools, rather than seeking to increase penalties, expand the scope of copyright liability, or otherwise make substantive changes to the copyright regime.
- The Plan’s goal for copyright should be realistic: making participation in legal markets easier and more attractive than widespread infringement.