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A mere 5 months after SOPA and PIPA met their very public demise, a new intellectual property enforcement bill is on the fast track through the House Judiciary Committee. The bill, which was largely secret until a day before it was scheduled to be marked up, is an attempt to revive an idea that was killed as part of SOPA earlier this year. In addition to being a surprising attempt to develop intellectual property (IP) legislation in secret again, it highlights a phenomenal waste of taxpayer resources. After all, what is going to improve our copyright system more: international IP attaches or being able to look up who actually owns a copyright?
The bill itself establishes an “intellectual property attaché program.” Among other things, the program creates a new Assistant Secretary of Commerce for Intellectual Property and seeds intellectual property attaches in U.S. embassies across the world. The people in this program will basically be tasked with patrolling intellectual property rights for private US rightsholders.
Secret Bills Are a Nonstarter
Before getting to the substance of the bill, perhaps the most shocking thing about it is how it is being handled by Committee Chairman Smith (who was a driving force behind SOPA). If Congress learned no other lesson from SOPA and PIPA, you would think that they got the message about not developing IP-related laws in secret. But you would be wrong. This bill leaked, fully formed, over the weekend and was scheduled for markup today. Needless to say, this came as a surprise to just about everyone not directly involved with drafting it and provided a very limited opportunity to meaningfully participate in the markup process. Step zero for any new IP bill should be a transparent drafting process.
Do We Really Need More Officials In Charge of IP?
While the intellectual property attaché program may be new, the idea of using government officials to police intellectual property rights for rightsholders is not. We already have, to name a few examples, an Intellectual Property Enforcement Coordinator, Office of Intellectual Property Rights at the Department of Commerce, Office of International Intellectual Property Enforcement at the State Department, Office of the Administrator for Policy and External Affairs – Enforcement at the Patent and Trademark Office, National Intellectual Property Rights Coordination Center, Office of Intellectual Property and Innovation at the United States Trade Representative, and Intellectual Property Task Force at the Department of Justice.
And remember, we still do not have anything approaching an Office of Innovation.
Cost Effective Ways to Improve Copyright
The real embarrassment here is that this entire debate is playing out while the Copyright Office is desperately trying to modernize our system for registering and tracking who actually owns copyrights. Today, there is no way to electronically search the Copyright Office’s records for works registered before 1978 (some of which will still be protected by copyright in 2070). In order to search those records you have to pay the Copyright Office $165/hour (2 hour minimum). Additionally, the electronic registration process for new works has a months-long processing backlog. As a result, only a tiny fraction of copyrights that are actually registered are easily searchable by the public. This means that it is hard to find rightsholders in order to license their work or pay them for use.
And for most things the Copyright Office does not take credit cards - check or money order only.
These shortcomings are only the tip of the iceberg.
If we were serious about making the copyright system work better, step one should be to make sure that there is any easy way to figure out who actually owns what. After all, it is hard to pay a creator if you can’t find them. But instead, Rep. Smith decided to prioritize a secret bill to send government officials hither and yon in search of, well, something.