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Enforcement is the latest buzzword being used to describe efforts to expand intellectual property (IP) rights, undermine the rights of consumers and innovators, and shift the responsibility for protecting private rights—such as copyright and trademark rights—from rights holders to government and private parties such as ISPs. Currently, this frenzy for greater "enforcement" is finding an audience in Congress, the Administration, and at international forums.
Enforcement of intellectual property is not, in and of itself, bad. However, enforcement includes the entire body of law that comprises IP, including exclusive rights as well as limitations on those rights. However, current enforcement efforts are losing sight of this purpose and using enforcement as the mechanism to expand the scope of exclusive rights at the expense of balances in IP laws.
Nina Paley, creator of "Sita Sings the Blues," discusses the difficulties she encountered in licensing music for the film
So, What's So Bad About Enforcing IP Rights?
Current enforcement efforts harm users and innovators and warp existing laws in dangerous ways. Here are a few reasons why Public Knowledge opposes efforts to expand the scope of IP enforcement:
International enforcement treaties like ACTA promote the interests of IP owners and fail to take into account the needs of users and innovators.
The Anti-Counterfeiting Trade Agreement (ACTA) may sound uncontroversial, but, in fact, raises many questions and poses a significant threat to the public interest. Everyone can agree that it is important to internationally enforce laws against large-scale commercial counterfeiting and piracy—protecting against things like Louis Vuitton knock-offs and dangerous counterfeit drugs. And that’s what ACTA ostensibly set out to do. However, there are several fundamental problems with the process, the content, and the vagueness of the Agreement that raise significant concerns.
Distinctions between different types of IP and the different types of harms they cause are being ignored.
IP rights cover a vast set of rights, including patents, copyrights and trademarks. The policy reasons for IP protection and harms from stemming from infringement vary depending on the area covered. Yet current enforcement efforts view all IP violations under the same umbrella and provide the same justifications for increased enforcement of all IP rights.
Penalties are being ratcheted up in a manner that does not distinguish between individual infringers and organized criminals.
Enforcement efforts do not distinguish between the dangers of large scale infringement (i.e. infringement by those who copy movies or other works and sell them to a mass audience) compared to the dangers from individual infringement )i.e. a college student who shares a few songs via P2P networks). Current enforcement initiatives, including the PRO IP Act have increased penalties for all copyright and trademark violations without regard to such distinctions. This is likely to adversely affect the rights of ordinary consumers who do not deserve to be treated like organized criminals.
Stepping up enforcement without also increasing the robustness of limitations and exceptions to intellectual property rights will disturb the balance between the rights of users and rights holders.
Proponents of stronger enforcement claim that such efforts have no effect on substantive law because they do not alter or expand the scope of rights or shrink the scope of limitations and exceptions to rights. However, if penalties are increased without a corresponding increase in the robustness of limitations and exceptions to IP rights, users will be discouraged from making legal uses of existing materials. Thus, a documentary filmmaker might choose not to include a clip from a film in her documentary for fear that doing so might result in her having to pay a massive sum in statutory damages. Seeing how such damages are already disproportionate to the harms they purport to address, ratcheting up enforcement will further skew the balance in intellectual property law.
Private parties such as ISPs are being viewed as means to prevent infringement and the role of courts is being diminished giving rise to due process concerns.
A significant portion of current enforcement proposals focus on preventing infringement via digital networks. Rights holders assert that in a networked environment, third parties such as ISPs are well positioned to contain infringement. Some representatives for large copyright owners have called for greater cooperation from ISPs to address online copyright infringement. This “cooperation” has been widely interpreted as the implementation of three-strikes provisions that would cut off the Internet access of those accused of infringing on IP rights. Such an approach relies on an agreement between private parties and as such, sidesteps the thorough examination of an accused party's guilt or lack thereof that would take place in a court of law. In a three strikes regime, an entire household could be cut off from access to educational resources, civic information, and economic opportunity, without the accuser even having to prove that the accused party actually committed an infringing act. ISPs are not well equipped to make determinations as to what does and does not constitute infringement—such determinations should be left to the courts.
Pushing for extreme penalties shows a lack of regard for proportionality.
Current efforts to increase enforcement have lost sight of the need for proportionality in penalizing violations. For instance, the PRO IP Act created new provisions permitting the seizure and forfeiture of not only of infringing goods, but also any equipment connected with infringement. The provision is worded so broadly that it can be read to encompass even general-purpose equipment used by individuals during the course of infringement. For instance, a computer used by a high school student to download a few songs can qualify as such an instrument and may be forfeited to the government. Because the law contains civil forfeiture provisions, enforcement authorities would not even have to prove that the student committed the infringement before seizing the computer —all that would be required proof that the computer was used in the infringement.
The burden of enforcement is being shifted unfairly from rights holders to the government and private companies.
Intellectual property rights are private rights. This means that it's the job of the person who benefits from the right to enforce it. Thus, if a copyright is infringed, the owner —not the government —must sue the infringer and prove that an infringement took place. The current push for greater enforcement is shifting this burden from owners of intellectual property rights to the government and private parties such as ISPs. For example, the PRO IP Act seeks to provide greater resources to the Dept. of Justice and other agencies to fight IP infringements. Meanwhile, ISPs are being pressured to “cooperate” with rights holders in order to protect IP.
The danger with public enforcement of private rights is that such a shift skews the priorities of law enforcement. At a time when there is a general resource crunch, as well as ever increasing demands on law enforcement to address both actual crime and new challenges like terrorism, diverting such resources in order to enforce the rights of private companies is bad policy.