‘Tis the Season Part IV: PK and allies to USTR - It’s Time for an Office of Innovation

Last Friday, Public Knowledge wrapped up a busy week of Presidential transition team meetings. First, as part of the Open Internet Coalition, PK and a number of its industry and public interest allies met with FCC Agency Review team co-chairs Susan Crawford and Kevin Werbach to discuss the Coalition's priorities and how we would like to see them implemented. Not surprisingly, we discussed the need for a requirement of openness that would prohibit discrimination and allow use of any device or application across platforms, and for the FCC to promote competition in the market for broadband access.

Second, a large group of PK allies, including libraries, higher education institutions, Internet, consumer electronics and telecommunications companies and trade associations met with members of the United States Trade Representative (USTR) transition team, including FCC International Bureau Chief and long-time USTR staffer Don Ableson and former Obama (and Boxer) Senate Staffer Danny Sepulveda. USTR is responsible for negotiating bilateral and multilateral trade agreements on behalf of the United States, and since the 1980's, those trade agreements have included provisions governing intellectual property rights. In many cases, at the behest of the content industries, those agreements restrict use of IP without any corresponding limitations and exceptions (such as fair use), and are sometimes used as laboratories for trying to impose stronger IP protections here at home.

Like our meeting with the USPTO, we urged the USTR team to make three overall changes to their processes and interface with groups like ours: 1) greater transparency - keeping stakeholders apprised of USTR activities that could affect us and providing us with more information about the substance of agreements like the Anti-Counterfeiting Trade Agreement; 2) data driven policymaking - the agency should base its trade policies on independent, empirical data, and should not simply adopt the untested and unproved content industry "piracy" numbers as a basis for IP provisions in trade agreements; and 3) Treat tech and public interest as stakeholders - the world has changed, and the tech and telecommunications industries contribute far more to the national economy than the content industries. Moreover, to the extent that greater IP protection affects taxpayers' ability to use both protected content and technology, they are also affected. Thus, USTR should treat tech companies and public interest groups as equal stakeholders in trade policy, and not as mere pests to be tolerated. To the extent that USTR has advisory committees on various issues, it needs to make membership on those committees more accessible to tech companies and public interest groups.

It was from that last process point that came an idea that all at the meeting agreed should become a priority for the Obama administration: creation of an Office of Innovation in the White House and in appropriate government agencies. Thanks to the Enforcement of Intellectual Property Rights Act of 2008, the White House now has an Intellectual Property Enforcement Coordinator. Several cabinet departments and agencies have offices dedicated to intellectual property protection and enforcement, including the State Department, the US Patent and Trademark Office (USPTO), the Justice Department and USTR (technically, it is called the Office of Intellectual Property Protection and Innovation, but its focus has been almost entirely on the former). And of course, the Copyright Office and the USPTO view their entire mandates through the lens of protection. These offices and agencies are all dedicated first to the protection of copyrights, patents and trademarks rather than a balance of interests that would promote innovation, competition, access and civic discourse. Why shouldn't there be a counterpart in the White House and in these and other agencies that is concerned primarily with promoting technological and other innovation and advancing policies to promote them? Rather than setting policies that seek to build gates around information, we need government entities that seek policies that open those gates and allow for new ideas and inventions to thrive.

So you heard it here first: the Obama administration should create a separate Office of Innovation in the White House and also in every agency that has jurisdiction over domestic and international intellectual property, commerce and antitrust. Only then those seeking balanced copyright, patent and trademark be assured that somebody in government is looking out for our interests.

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