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The recently maligned IP Attaché Act is just one in a long line of IP bills that include seemingly innocuous provisions that could later prove to be harmful to innovation and the free flow of information. In February I gave a talk at the University of Colorado that showed how over a decade, supporters of increasing copyright protection dropped little-known and little-understood language in IP bills that eventually became the basis for SOPA and PIPA, as well as the Department of Homeland Security’s program for seizing domain names.
According to a former US Patent and Trademark Office (USPTO) official I spoke with, the content industries and their friends have been pushing the changes this bill would make for years. That alone tells you something.
So when someone tells you that an IP enforcement bill is “noncontroversial,” you’d better watch your wallet and your rights.
Much of the focus on the IP Attaché Act has been about the lack of transparency and the attempt by Rep. Lamar Smith to vote a bill out of committee that was never formally introduced. To the extent that the substance of the bill has been discussed, it has largely been about the IP attaché program, which despite the clear language of the bill stating that its purpose is to “create” such a program, appears to already exist.
The bill would put the program under the control of the USPTO rather than main Commerce, where it is today.
But even that is not completely benign. The bill grants new diplomatic status to the IP Attachés, including “First Secretary, Counselor or Minister Counselor.” Currently, IP attachés can achieve only the lower rank of First Secretary. Of course, higher diplomatic rank not only means more visibility and power and a higher salary for a higher rank. It also means that your taxpayer dollars will be diverted from other needed resources, since the bill requires that the PTO use only "existing resources" for these higher-ranked positions.
But what hasn’t been discussed nearly as much as the attaché program are the other provisions of the bill. One would create a new Assistant Secretary of Commerce for Intellectual Property in the USPTO, who in addition to providing training for the IP attaché and other IP-related programs has broad powers to “advance the intellectual property policy of the United States,…both domestically and abroad.”
Remember when everyone thought the Intellectual Property Enforcement Coordinator (IPEC) only had authority to act with regard to “enforcement” as opposed to other IP policy matters? That limitation is nowhere to be found in the 2008 legislation that created the position or in its legislative history, and there is nothing in this bill that limits the Assistant Secretary's powers either.
In addition, the Secretary of Commerce is given carte blanche to hire as many Deputy Assistant Secretaries to help as the USPTO can afford. This means that overnight, the USPTO would become the home of yet another office dedicated wholly to the protection of intellectual property.
Have we told you that the USPTO already has personnel dedicated to Intellectual Property Enforcement? It should come as no shock to anyone that these new positions, as well as the attaché positions, are likely to be filled by those who believe that more IP enforcement is always better.
Speaking of that specific position in the USPTO, the Administrator for Policy and External Affairs, a provision in the IP Attache Act would “redesignate” that position as the Deputy Assistant Secretary of Commerce for Policy and External Affairs. This change in title, like the reorganization of the IP attachés, will bring increased visibility and power to the position. Too bad the change didn’t happen when a known reformer occupied the position rather than someone who has worked in the content industry for years.
In IP enforcement bills as in much in life, “it’s the little things that count.” It’s time we more closely scrutinize these bills to make sure they don’t become big bad things in the future.