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PROP-IP goes to pieces in the Senate - September 11, 2008

The Senate Judiciary Committee today passed the Enforcement of Intellectual Property Rights Act of 2008, one day after Sens. Max Baucus (D-Mont.) and Orrin Hatch (R-Utah) introduced the International Intellectual Property Protection and Enforcement Improvement Act of 2008.Confused? So were a lot of people who follow this stuff for a living here in Washington. Basically, it looks like the Senate is taking up piecemeal what the House handled in one bill when it passed the Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP) earlier this year.

The Baucus-Hatch bill, introduced in the Senate Finance Committee contains two provisions, one of which is also included in PRO-IP: the appointment of IP attaches at U.S. consulates around the world to work with other countries on IPR enforcement. The other provision would enhance the (already considerable) authority of the Office of the U.S. Trade Representative to make IPR enforcement an element of bilateral trade agreements.

So far, the Baucus-Hatch bill has attracted little organized opposition in Washington. The International Intellectual Property Alliance praised the bill as "important legislation" that will "reduce global levels of piracy that damage the U.S. economy and U.S. jobs."

The Senate Judiciary Committee bill is covers more territory, including many provisions for enhanced domestic enforcement and penalties for IPR violations that are included in PRO-IP. However, the Senate bill contains one controversial provision not included in the House measure: giving the Justice Department authority to bring civil suits in copyright-related cases, rather than requiring that federal resources be restricted only to cases of criminal copyright infringement. Critics of the provision argue that it would turn the Justice Department into the private enforcement arm of copyright owners at tax-payer expense.

From Washington-based Public Knowledge:

This provision “would be an enormous gift of federal resources to large copyright owners with no demonstration that the copyright owners are having difficulties enforcing their own rights.
[...]
Movie and television producers, software publishers, music publishers, and print publishers all have their own enforcement programs. There is absolutely no reason for the federal government to assume this private enforcement role.

It's unclear what will happen at this point. With time running out on the legislative calendar for this session of Congress, it's possible the Judiciary Committee bill could get to the Senate floor for a vote before the clock runs out. The Finance Committee bill would still have to go through mark-up by the subcommittee and full committee, which seems unlikely given the limited time left before Congress adjourns for the elections.

My guess would be that at some point the two bills get rolled into one and paired with PRO-IP in a conference committee with the House. At that point, the biggest sticking point would likely be the provision giving the Justice Department authority to bring civil complaints, which is in the Senate bill but not in the version of PRO-IP passed by the House.

Backers of the Senate Judiciary bill, however, are pressing hard to get it to the floor this year as is.

From MPAA CEO Dan Glickman:

We are encouraged that the Senate Judiciary Committee has ushered this bill out of committee and are hopeful that Congress will adopt the legislation in these final weeks of the legislative session. There are few things more important that Congress can do in its closing weeks than to pass this meaningful legislation that will put more Americans to work and protect our nation’s intellectual property.”

Place your bets.

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