The Office of the United States Trade Representative last year announced that the U.S. would initiate talks with some of its trading partners to form an Anti-Counterfeiting Trade Agreement -- a legal framework for enforcement of intellectual property laws. Since then, negotiations have been going on behind closed doors, prompting speculation and debate on what may be included. Last month, the Group of 8 industrialized nations issued a statement of support urging participating countries to conclude talks by the end of this year.
As executive director of the Copyright Alliance, a coalition including a long list of content creators, Patrick Ross has been closely following the developments of the trade talks. In a conversation with NationalJournal.com's Theresa Poulson, Ross gave his take on some of the controversial proposed elements of the framework, urged Hill action on intellectual property legislation, and expressed optimism for the next administration. Edited excerpts follow. Visit the archives page for more Insider Interviews.
Q: What do you ultimately want to see come out of the Anti-Counterfeiting Trade Agreement talks?
Ross: It's important that we're trying to building on TRIPS [the World Trade Organization's Trade-Related Aspects of Intellectual Property Rights], which has been moderately successful, but not as much as maybe some of us in the copyright community would like. There are a number of ways ACTA could build on TRIPS. We need more efficient real-time coordination among nations and with copyright owners because counterfeiters are already coordinating in real time. We also need unambiguous laws that authorize local enforcement to investigate and to act against infringement. And, this is somewhat separate from ACTA, but we need TRIPS members -- the countries that have signed TRIPS -- to more aggressively adopt and enforce TRIPS provisions.
I think TRIPS was one of the first efforts to reflect the changes that are occurring in the digital age and to empower countries to start responding to those challenges. I think that we have a long way to go in that area, and it would be helpful if more countries were, in fact, actually fully participating in and enforcing TRIPS. But it also helped in many ways to create a sense around the globe... that this is a global phenomenon. Piracy is a global phenomenon, but also economic benefits from intellectual property is a global phenomenon, and we all benefit, around the globe, when intellectual property is protected.
Q: How do you feel about including increased border searches for counterfeit goods in the ACTA framework?
Ross: That's a good thing. We see all the time, including in the National Geographic special "Illicit", there's a tremendous number of counterfeit goods passing through ports every single day -- and other border crossings -- so we desperately need more enforcement, more international coordination in real time.
Now, opponents of copyright have put out this straw man, this canard, that apparently the world's leading trade negotiators are gathering in Geneva in order to conspire to steal people's iPods. And that's just a wee bit ridiculous, and it only takes a few seconds to reflect on that and realize that that is not at all what we're talking about here when it comes to border enforcement.
Q: So you don't think that there's a truly genuine need for concern over individuals' privacy rights when it comes to border searches?
Ross: I suspect that somebody smuggling across CDs or DVDs along a border might cite privacy violations when caught, but I don't think your average tourist going through customs has any concerns....
You have to do what you can to target the infringement that you can, and there's plenty more infringers out there that can be caught with increased coordination, with increased enforcement. Handbags are a good example of what we're seeing, also music and movies; software has long been a major problem. But we've seen some pretty major successes in recent years. And recent studies, including by the Business Software Alliance, show that globally we're starting to see a slight decline in counterfeit goods.
Q: So you think border-targeting measures have been proven effective?
Ross: They have shown that they can be effective when there are proper resources and coordination there. So that's the positive. The negative is that we don't have enough coordination, we don't have enough resources, and that's not just in the U.S. That's global.
Q: Now, looking at who is involved in the ACTA negotiations -- Australia, Canada, the European Union, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the United States -- China is absent. In its annual Special 301 report, the USTR identified China as one of the top U.S. trading partners to put pressure on to bolster IP enforcement. If one of the world's largest counterfeiters is not part of these discussions, how effective can this framework be?
Ross: Well, the framework would certainly help with anyone adopting it. There is an outstanding complaint by the United States against China through the WTO on some of these issues. So there are already treaties that China is party to that some would say they are not adhering to, so having them in ACTA wouldn't necessarily help if they're not going to adhere to it.
I think the idea behind ACTA -- and certainly that seems to be what [U.S. Trade Representative] Susan Schwab indicated when they launched this last year -- is that we wanted to start with nations, and in the case of the European Union, a collection of nations, that have historically demonstrated strong support for intellectual property rights and have recognized the important role that they play economically. You start with the people who are already playing by the rules, and you get those folks to come up with the right way of doing it. And then you go around and try to get some other people to sign on.
Now, there have already been countries that have joined this process midway through; I believe Mexico and Morocco are two of them that have come in as the process has gone on. And of course more are welcome to join.
Q: Another provision that could be part of ACTA would put the onus on Internet service providers globally to monitor the illegal sharing of copyrighted material. Should ISPs be held more accountable for what's happening on their networks?
Ross: I think what we're seeing is, 10 years ago an ISP was viewed as purely a data conduit. And now the definition of ISP has become much broader. Their roles are diversifying, and there's a far greater connection today between broadband adoption and broadband usage and, of course, creative content. And I think ISPs are beginning to realize this symbiotic relationship, and they're starting to look for ways to target illegal activities on their networks.
I think a good example would be what just happened in the UK, where you have a memorandum of understanding between the UK's six leading ISPs and the recorded music and motion picture industries. They're operating in a free market, they're looking to solve this problem together, and they're doing it without a government mandate.
Q: Do you think such an agreement should be reached on a voluntary basis on the part of content creators and ISPs, or is it something that should be part of ACTA?
Ross: Ultimately, I don't know how much that would come out of ACTA as opposed to coming out of each country's own laws. There have been discussions in the EU and in various EU countries about this. I think most Copyright Alliance members, being participants in the free market themselves, would say the ideal solution would be for these partners to act together, and as I mentioned, they do have a symbiotic relationship; there's a mutual interest in solving this problem. But it's a problem that needs to be solved, so you can't rule out any solutions. I think I do find it promising, though -- the UK solution.
Ross: The safe harbor applies when an ISP is unaware of the infringing activity. In today's world, ISPs increasingly are well aware of the infringing traffic, and this is particularly true of Web-hosting sites that are claiming safe harbor protection as ISPs under the DMCA. In short, if an ISP knows about copyright infringement, the onus is already on it, and it should do what it can to stop it.
Q: I understand that the Motion Picture Association of America and the Recording Industry Association of America, members of the Copyright Alliance, have been consulted in negotiations of ACTA.
Ross: I think what you'd find is that the people who are at the table are the representatives from the various countries; these are closed discussions. But the USTR has made it clear that the negotiators from these various countries are talking with stakeholders. That would mean that copyright interests are seen as a resource. They could provide data, they could provide statistics, research. They could explain the role that piracy plays -- the 375,000 lost jobs a year due to piracy in the U.S, the $58 billion hit to the economy.
I don't think it would be accurate, though, to say that the ACTA negotiations are industry-driven. This is something that came from the government. The USTR and the Bush administration have for several years been focused on increasing IP enforcement domestically and abroad, and we're very happy to see them do that.
Q: Turning our attention to domestic U.S. laws, there are several bills that have been introduced in Congress that aim to improve intellectual property rights protection, including the House-passed PRO-IP bill. When Congress returns from recess, which bill should they focus on passing before the end of the 110th Congress?
Ross: There's no question. They need to move and move quickly on the bill [PDF] introduced by Senate Judiciary Chairman Pat Leahy and ranking Republican Arlen Specter. This is the counterpart [to the House-passed bill] in the Senate. It's a different bill, but it's also a copyright and IP enforcement bill and contains very similar provisions.
It's imperative that we get a copyright enforcement bill on the president's desk this year. I mentioned some of the financial hits -- job hits -- that result from piracy. Our economy is not doing too well; everybody is acknowledging that right now. And it just makes sense to go ahead and try to do something to stem the piracy flow. And I think the vote in the House on PRO-IP, 410 to 11, shows that people understand that.
Q: What would Leahy's bill do to improve copyright protection?
Ross: There a number of things. One that I actually particularly like because it supports individual creators -- and it's also in the PRO-IP bill -- is a provision to make sure that if somebody registers a copyright, an individual creator or what have you, and they do an error in registration, that they won't lose their ability to seek statutory damages in a suit, and we've seen that in the past. And there's no reason to expect that a painter or a photographer is necessarily going to know the nuances of copyright filing.
On a broader scale, both of these pieces of legislation look to provide more resources for law enforcement, Department of Justice, international law enforcement. There are a few more provisions in the House bill than the Senate bill, but that's certainly the intent of both. And of course they both take an approach of attempting to coordinate intellectual property policy within the administration and the legislative branch, and I think that's a good thing.
Q: You're in support of putting an IP official at the executive level, which would be authorized under the Leahy bill. Could you tell me what you think that could do for IP protection?
Ross: Let me first state that I'm not for an IP czar; that's another one of those straw men, one of those canards put out there by opponents. I am very much in favor of an IP coordinator. We've got about a dozen federal agencies that are involved in copyright in one way or another, some of them in the executive branch, some in the legislative branch, some in independent agencies, some within the administration. It's really quite diverse. And it's not surprising that sometimes the left hand doesn't know what the right hand is doing.
Now, the Bush administration in 2004 created the STOP! initiative. The STOP! initiative, which stands for Strategy Targeting Organized Piracy, took a big step in terms of trying to get some of these folks to work more closely together. But it's not done at the executive branch level, so it's more difficult to coordinate. By putting it, for example, in the executive office of the president, you have the ability to reach out to all of those different agencies. That person would not be directing or instructing those people; it would not be an authoritative position, it would be a coordinating position.
Q: What would you consider the biggest accomplishment of the Bush administration in protecting intellectual property?
Ross: Again, I would go back to the administration's STOP! initiative. Not only has it helped in terms of coordinating with foreign governments and with actually getting prosecutions of infringers, but I think it has helped to raise the profile of intellectual property within the government. There have always been people who understand its importance and who recognize that it was a leading element in our U.S. exports. But that has really been of benefit. What has limited STOP! has been that it was essentially not operated at the executive office level, and so that's where we come back to the importance of having an IP coordinator at the OP level.
Q: Looking forward to the next administration, between the Democratic and Republican presidential nominees, who do you think would be more sympathetic to copyright protection?
Ross: Copyright traditionally has been bipartisan, and we're very appreciative of that. There hasn't been a lot of talk about the IP coordinator position. They may find that they already have it if it becomes law this year, so it might not be relevant. One thing we've noticed is, Senator Obama has said that intellectual property is to the digital age what physical goods were to the industrial age. And that's absolutely correct. We're in a knowledge economy, and so he's recognizing that intellectual property is the economic engine in this country. Senator McCain has said the entertainment industry is both a vital sector of the domestic economy and among the largest U.S. exporters. So there he is also recognizing the economic engine that is copyright.
So we're very pleased with both of them on this issue. I think that copyright owners and creators can rest assured that the next White House will support their rights. But I need to point out that the Copyright Alliance will be sure to remind the next White House of that commitment whenever we get the opportunity.