[House Report 110-617]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-617
======================================================================
PRIORITIZING RESOURCES AND ORGANIZATION FOR INTELLECTUAL PROPERTY ACT
OF 2008
_______
May 5, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 4279]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4279) to enhance remedies for violations of
intellectual property laws, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 20
Background and Need for the Legislation.......................... 20
Hearings......................................................... 32
Committee Consideration.......................................... 33
Committee Votes.................................................. 33
Committee Oversight Findings..................................... 33
New Budget Authority and Tax Expenditures........................ 33
Congressional Budget Office Cost Estimate........................ 33
Performance Goals and Objectives................................. 37
Constitutional Authority Statement............................... 38
Advisory on Earmarks............................................. 38
Section-by-Section Analysis...................................... 38
Changes in Existing Law Made by the Bill, as Reported............ 45
Committee Jurisdiction Letters................................... 62
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Prioritizing
Resources and Organization for Intellectual Property Act of 2008''.
(b) Table of Contents.--The table of contents is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Reference.
Sec. 3. Definition.
TITLE I--ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAWS
Sec. 101. Registration of claim.
Sec. 102. Registration and infringement actions.
Sec. 103. Civil remedies for infringement.
Sec. 104. Treble damages in counterfeiting cases.
Sec. 105. Statutory damages in counterfeiting cases.
Sec. 106. Exportation of goods bearing infringing marks.
Sec. 107. Importation and exportation.
TITLE II--ENHANCEMENTS TO CRIMINAL INTELLECTUAL PROPERTY LAWS
Sec. 201. Criminal infringement of a copyright.
Sec. 202. Harmonization of forfeiture procedures for intellectual
property offenses.
Sec. 203. Directive to United States Sentencing Commission.
Sec. 204. Trafficking in counterfeit goods or services.
TITLE III--COORDINATION AND STRATEGIC PLANNING OF FEDERAL EFFORT
AGAINST COUNTERFEITING AND PIRACY
Subtitle A--Office of the United States Intellectual Property
Enforcement Representative
Sec. 301. Office of the United States Intellectual Property
Enforcement Representative.
Sec. 302. Definition.
Subtitle B--Joint Strategic Plan
Sec. 321. Joint Strategic Plan.
Sec. 322. Reporting.
Sec. 323. Savings and repeals.
Sec. 324. Authorization of appropriations.
TITLE IV--INTERNATIONAL ENFORCEMENT AND COORDINATION
Sec. 401. Intellectual property attaches.
Sec. 402. Duties and responsibilities of intellectual property
attaches.
Sec. 403. Training and designation of assignment.
Sec. 404. Coordination.
Sec. 405. Authorization of appropriations.
TITLE V--DEPARTMENT OF JUSTICE PROGRAMS
Subtitle A--Coordination
Sec. 501. Intellectual Property Enforcement Officer.
Subtitle B--Law Enforcement Resources
Sec. 511. Local law enforcement grants.
Sec. 512. CHIP units, training, and additional resources.
Sec. 513. Transparency of prosecutorial decisionmaking.
Sec. 514. Authorization of appropriations.
Subtitle C--International Activities
Sec. 521. International intellectual property law enforcement
coordinators.
Sec. 522. International training activities of the computer crime and
intellectual property section.
Subtitle D--Coordination, Implementation, and Reporting
Sec. 531. Coordination.
Sec. 532. Annual reports.
SEC. 2. REFERENCE.
Any reference in this Act to the ``Trademark Act of 1946'' refers to
the Act entitled ``An Act to provide for the registration of trademarks
used in commerce, to carry out the provisions of certain international
conventions, and for other purposes'', approved July 5, 1946 (15 U.S.C.
1051 et seq.).
SEC. 3. DEFINITION.
In this Act, the term ``United States person'' means--
(1) any United States resident or national,
(2) any domestic concern (including any permanent domestic
establishment of any foreign concern), and
(3) any foreign subsidiary or affiliate (including any
permanent foreign establishment) of any domestic concern that
is controlled in fact by such domestic concern,
except that such term does not include an individual who resides
outside the United States and is employed by an individual or entity
other than an individual or entity described in paragraph (1), (2), or
(3).
TITLE I--ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAWS
SEC. 101. REGISTRATION OF CLAIM.
Section 410 of title 17, United States Code, is amended--
(1) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(2) by inserting after subsection (b) the following:
``(c)(1) A certificate of registration satisfies the requirements of
section 411 and section 412 regardless of any inaccurate information
contained in the certificate, unless--
``(A) the inaccurate information was included on the
application for copyright registration with knowledge that it
was inaccurate; and
``(B) the inaccuracy of the information, if known, would have
caused the Register of Copyrights to refuse registration.
``(2) In any case in which inaccuracies described under paragraph (1)
are alleged, the court shall request the Register of Copyrights to
advise the court whether the inaccuracy of the information, if known,
would have caused the Register of Copyrights to refuse registration.
The Register shall respond to the court's request within 45 days after
the request is made.
``(3) Nothing in this subsection shall affect any rights,
obligations, or requirements of a person related to information
contained in a registration certificate except for the institution of
and remedies in infringement actions under sections 411 and 412.''.
SEC. 102. REGISTRATION AND INFRINGEMENT ACTIONS.
(a) Registration in Civil Infringement Actions.--Section 411 of title
17, United States Code, is amended--
(1) in the section heading, by inserting ``civil'' after
``and'' ; and
(2) in subsection (a), by striking ``no action'' and
inserting ``no civil action''.
(b) Technical and Conforming Amendment.--Section 411(b) of title 17,
United States Code, is amended by striking ``506 and sections 509 and''
and inserting ``505 and section''.
SEC. 103. CIVIL REMEDIES FOR INFRINGEMENT.
Section 503(a) of title 17, United States Code, is amended--
(1) by striking ``and of all plates'' and inserting ``of all
plates''; and
(2) by striking the period at the end and inserting the
following: ``, and records documenting the manufacture, sale,
or receipt of things involved in such violation. The court
shall enter an appropriate protective order with respect to
discovery by the applicant of any records that have been
seized. The protective order shall provide for appropriate
procedures to assure that confidential information contained in
such records is not improperly disclosed to the applicant.''.
SEC. 104. TREBLE DAMAGES IN COUNTERFEITING CASES.
Section 35(b) of the Trademark Act of 1946 (15 U.S.C. 1117(b)) is
amended to read as follows:
``(b) In assessing damages under subsection (a) for any violation of
section 32(1)(a) of this Act or section 220506 of title 36, United
States Code, in a case involving use of a counterfeit mark or
designation (as defined in section 34(d) of this Act), the court shall,
unless the court finds extenuating circumstances, enter judgment for
three times such profits or damages, whichever amount is greater,
together with a reasonable attorney's fee, if the violation consists
of--
``(1) intentionally using a mark or designation, knowing such
mark or designation is a counterfeit mark (as defined in
section 34(d) of this Act), in connection with the sale,
offering for sale, or distribution of goods or services;
``(2) intentionally inducing another to engage in a violation
specified in paragraph (1); or
``(3) providing goods or services necessary to the commission
of a violation specified in paragraph (1), with the intent that
the recipient of the goods or services would put the goods or
services to use in committing the violation.
In such a case, the court may award prejudgment interest on such amount
at an annual interest rate established under section 6621(a)(2) of the
Internal Revenue Code of 1986, beginning on the date of the service of
the claimant's pleadings setting forth the claim for such entry of
judgment and ending on the date such entry is made, or for such shorter
time as the court considers appropriate.''.
SEC. 105. STATUTORY DAMAGES IN COUNTERFEITING CASES.
Section 35(c) of the Trademark Act of 1946 (15 U.S.C. 1117) is
amended--
(1) in paragraph (1)--
(A) by striking ``$500'' and inserting ``$1,000'';
and
(B) by striking ``$100,000'' and inserting
``$200,000''; and
(2) in paragraph (2), by striking ``$1,000,000'' and
inserting ``$2,000,000''.
SEC. 106. EXPORTATION OF GOODS BEARING INFRINGING MARKS.
Title VII of the Trademark Act of 1946 (15 U.S.C. 1124) is amended--
(1) in the title heading, by inserting after ``IMPORTATION''
the following: ``OR EXPORTATION''; and
(2) in section 42--
(A) by striking the word ``imported''; and
(B) by inserting after ``customhouse of the United
States'' the following: ``, nor shall any such article
be exported from the United States''.
SEC. 107. IMPORTATION AND EXPORTATION.
(a) In General.--The heading for chapter 6 of title 17, United States
Code, is amended to read as follows:
``CHAPTER 6--MANUFACTURING REQUIREMENTS, IMPORTATION, AND
EXPORTATION''.
(b) Amendment on Exportation.--Section 602(a) of title 17, United
States Code, is amended--
(1) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively, and moving such
subparagraphs 2 ems to the right;
(2) by striking ``(a)'' and inserting ``(a) Infringing
Importation and Exportation.--
``(1) Importation.--'';
(3) by striking ``This subsection does not apply to--'' and
inserting the following:
``(2) Importation or exportation of infringing items.--
Importation into the United States or exportation from the
United States, without the authority of the owner of copyright
under this title, of copies or phonorecords, the making of
which either constituted an infringement of copyright or would
have constituted an infringement of copyright if this title had
been applicable, is an infringement of the exclusive right to
distribute copies or phonorecords under section 106, actionable
under sections 501 and 506.
``(3) Exceptions.--This subsection does not apply to--'';
(4) in paragraph (3)(A) (as redesignated by this subsection)
by inserting ``or exportation'' after ``importation''; and
(5) in paragraph (3)(B) (as redesignated by this
subsection)--
(A) by striking ``importation, for the private use of
the importer'' and inserting ``importation or
exportation, for the private use of the importer or
exporter''; and
(B) by inserting ``or departing from the United
States'' after ``United States''.
(c) Conforming Amendments.--(1) Section 602 of title 17, United
States Code, is further amended--
(A) in the section heading, by inserting ``or exportation''
after ``importation''; and
(B) in subsection (b)--
(i) by striking ``(b) In a case'' and inserting ``(b)
Import Prohibition.--In a case'';
(ii) by striking ``the United States Customs
Service'' and inserting ``U.S. Customs and Border
Protection''; and
(iii) by striking ``the Customs Service'' and
inserting ``U.S. Customs and Border Protection''.
(2) Section 601(b)(2) of title 17, United States Code, is amended by
striking ``the United States Customs Service'' and inserting ``U.S.
Customs and Border Protection''.
(3) The item relating to chapter 6 in the table of chapters for title
17, United States Code, is amended to read as follows:
``6. Manufacturing Requirements, Importation, and Exportation ........
601''.
TITLE II--ENHANCEMENTS TO CRIMINAL INTELLECTUAL PROPERTY LAWS
SEC. 201. CRIMINAL INFRINGEMENT OF A COPYRIGHT.
Section 2319 of title 18, United States Code, is amended--
(1) in subsection (b)(2)--
(A) by inserting ``is a felony and'' after
``offense'' the first place such term appears; and
(B) by striking ``paragraph (1)'' and inserting
``subsection (a)'';
(2) in subsection (c)(2)--
(A) by inserting ``is a felony and'' after
``offense'' the first place such term appears; and
(B) by striking ``paragraph (1)'' and inserting
``subsection (a)'';
(3) in subsection (d)(3)--
(A) by inserting ``is a felony and'' after
``offense'' the first place such term appears; and
(B) by inserting ``under subsection (a)'' before the
semicolon; and
(4) in subsection (d)(4), by inserting ``is a felony and''
after ``offense'' the first place such term appears.
SEC. 202. HARMONIZATION OF FORFEITURE PROCEDURES FOR INTELLECTUAL
PROPERTY OFFENSES.
(a) Trafficking in Counterfeit Labels.--Section 2318 of title 18,
United States Code, is amended--
(1) by amending subsection (d) to read as follows:
``(d) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any counterfeit documentation or packaging, and
any counterfeit label or illicit label and any article
to which a counterfeit label or illicit label has been
affixed, which a counterfeit label or illicit label
encloses or accompanies, or which was intended to have
had such label affixed, enclosing, or accompanying.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
a violation of subsection (a).
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of
subsection (a) that is owned or predominantly
controlled by the violator or by a person conspiring
with or aiding and abetting the violator in committing
the violation, except that property is subject to
forfeiture under this clause only if the Government
establishes that there was a substantial connection
between the property and the violation of subsection
(a).
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under subparagraph (A). At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
counterfeit labels or illicit labels and any article to which a
counterfeit label or illicit label has been affixed, which a
counterfeit label or illicit label encloses or accompanies, or
which was intended to have had such label affixed, enclosing,
or accompanying, be destroyed or otherwise disposed of
according to law.
``(C) In this paragraph, the term `aiding and abetting' means
knowingly providing aid to the violator with the intent to
facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
this section, shall order, in addition to any other sentence
imposed, that the person forfeit to the United States the
following property:
``(i) Any counterfeit documentation or packaging, and
any counterfeit label or illicit label, that was used,
intended for use, or possessed with intent to use in
the commission of an offense under subsection (a), and
any article to which such a counterfeit label or
illicit label has been affixed, which such a
counterfeit label or illicit label encloses or
accompanies, or which was intended to have had such
label affixed, enclosing, or accompanying.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
an offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853), other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court shall order
that any counterfeit label or illicit label and any article to
which a counterfeit label or illicit label has been affixed,
which a counterfeit label or illicit label encloses or
accompanies, or which was intended to have had such label
affixed, enclosing, or accompanying, be destroyed or otherwise
disposed of according to law.
``(3) Restitution.--When a person is convicted of an offense
under this section, the court, pursuant to sections 3556,
3663A, and 3664, shall order the person to pay restitution to
the owner of the marks or copyrighted works involved in the
offense and any other victim of the offense as an offense
against property referred to in section 3663A(c)(1)(A)(ii).'';
(2) by striking subsection (e); and
(3) by redesignating subsection (f) as subsection (e).
(b) Criminal Infringement of a Copyright.--
(1) In general.--Section 2319 of title 18, United States
Code, is amended by adding at the end the following:
``(g) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any copies or phonorecords manufactured,
reproduced, distributed, sold, or otherwise used,
intended for use, or possessed with intent to use in
violation of section 506(a) of title 17, any plates,
molds, matrices, masters, tapes, film negatives, or
other articles by means of which such copies or
phonorecords may be made, and any devices for
manufacturing, reproducing, or assembling such copies
or phonorecords.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
a violation of section 506(a) of title 17.
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of
section 506(a) of title 17 that is owned or
predominantly controlled by the violator or by a person
conspiring with or aiding and abetting the violator in
committing the violation, except that property is
subject to forfeiture under this clause only if the
Government establishes that there was a substantial
connection between the property and the violation of
section 506(a) of title 17.
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under this section. At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
infringing copies or phonorecords, and any plates, molds,
matrices, masters, tapes, and film negatives by means of which
such unauthorized copies or phonorecords may be made, be
destroyed or otherwise disposed of according to law.
``(C) In this paragraph, the term `aiding and abetting' means
knowingly providing aid to the violator with the intent to
facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
subsection (a), shall order, in addition to any other sentence
imposed, that the person forfeit to the United States the
following property:
``(i) Any copies or phonorecords manufactured,
reproduced, distributed, sold, or otherwise used,
intended for use, or possessed with intent to use in
the commission of an offense under subsection (a), any
plates, molds, matrices, masters, tapes, film
negatives, or other articles by means of which the
copies or phonorecords may be reproduced, and any
electronic, mechanical, or other devices for
manufacturing, reproducing, or assembling such copies
or phonorecords.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
an offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853), other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court shall order
that any forfeited infringing copies or phonorecords, and any
plates, molds, matrices, masters, tapes, and film negatives by
means of which such infringing copies or phonorecords may be
made, be destroyed or otherwise disposed of according to law.
``(3) Restitution.--When a person is convicted of an offense
under this section, the court, pursuant to sections 3556,
3663A, and 3664, shall order the person to pay restitution to
the copyright owner and any other victim of the offense as an
offense against property referred to in section
3663A(c)(1)(A)(ii).''.
(2) Conforming amendments.--(A) Section 506(b) of title 17,
United States Code, is amended by striking all that follows
``destruction'' and inserting the following: ``of property as
prescribed by section 2319(g) of title 18.''.
(B) Section 509 of title 17, United States Code, relating
seizure and forfeiture, and the item relating to section 509 in
the table of sections at the beginning of chapter 5 of title
17, United States Code, are repealed.
(c) Unauthorized Fixation and Trafficking.--
(1) In general.--Section 2319A of title 18, United States
Code, is amended--
(A) by striking subsection (c) and redesignating
subsections (d), (e), and (f) as subsections (c), (d),
and (e), respectively; and
(B) by amending subsection (b) to read as follows:
``(b) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any copies or phonorecords of a live musical
performance described in subsection (a)(1) that are
made without the consent of the performer or performers
involved, and any plates, molds, matrices, masters,
tapes, and film negatives by means of which such copies
or phonorecords may be made.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
a violation of subsection (a).
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of
subsection (a) that is owned or predominantly
controlled by the violator or by a person conspiring
with or aiding and abetting the violator in committing
the violation, except that property is subject to
forfeiture under this clause only if the Government
establishes that there was a substantial connection
between the property and the violation of subsection
(a).
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under paragraph (1). At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
unauthorized copies or phonorecords of live musical
performances, and any plates, molds, matrices, maters, tapes,
and film negatives by means of which such unauthorized copies
or phonorecords may be made, be destroyed or otherwise disposed
of according to law.
``(C) In this paragraph, the term `aiding and abetting' means
knowingly providing aid to the violator with the intent to
facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
this section, shall order, in addition to any other sentence
imposed, that the person forfeit to the United States the
following property:
``(i) Any unauthorized copies or phonorecords of a
live musical performance that were used, intended for
use, or possessed with intent to use in the commission
of an offense under subsection (a), and any plates,
molds, matrices, masters, tapes, and film negatives by
means of which such copies or phonorecords may be made.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
an offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853), other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court shall order
that any forfeited unauthorized copies or phonorecords of live
musical performances, and any plates, molds, matrices, masters,
tapes, and film negatives by means of which such unauthorized
copies of phonorecords may be made, be destroyed or otherwise
disposed of according to law.
``(3) Notification of importation.--The Secretary of Homeland
Security shall issue regulations by which any performer may,
upon payment of a specified fee, be entitled to notification by
U.S. Customs and Border Protection of the importation of copies
or phonorecords that appear to consist of unauthorized
fixations of the sounds or sounds and images of a live musical
performance prohibited by this section.
``(4) Restitution.--When a person is convicted of an offense
under this section, the court, pursuant to sections 3556,
3663A, and 3664, shall order the person to pay restitution to
the performer or performers involved, and any other victim of
the offense as an offense against property referred to in
section 3663A(c)(1)(A)(ii).''.
(2) Applicability.--Section 2319A(e), as redesignated by
paragraph (1) of this subsection, is amended by inserting
before the period the following: ``, except that the forfeiture
provisions under subsection (b)(2), as added by the
Prioritizing Resources and Organization for Intellectual
Property Act, shall apply only in a case in which the
underlying act or acts occur on or after the date of the
enactment of that Act''.
(d) Unauthorized Recording of Motion Pictures.--Section 2319B(b) of
title 18, United States Code, is amended to read as follows:
``(b) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any copies of a motion picture or other
audiovisual work protected under title 17 that are made
without the authorization of the copyright owner.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
a violation of subsection (a).
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of
subsection (a) that is owned or predominantly
controlled by the violator or by a person conspiring
with or aiding and abetting the violator in committing
the violation, except that property is subject to
forfeiture under this clause only if the Government
establishes that there was a substantial connection
between the property and the violation of subsection
(a).
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under this section. At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
unauthorized copies or phonorecords of a motion picture or
other audiovisual work, or part thereof, and any plates, molds,
matrices, masters, tapes, and film negatives by means of which
such unauthorized copies or phonorecords may be made, be
destroyed or otherwise disposed of according to law.
``(C) In this paragraph, the term `aiding and abetting' means
knowingly providing aid to the violator with the intent to
facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
this section, shall order, in addition to any other sentence
imposed, that the person forfeit to the United States the
following property:
``(i) Any unauthorized copies of a motion picture or
other audiovisual work protected under title 17, or
part thereof, that were used, intended for use, or
possessed with intent to use in the commission of an
offense under subsection (a).
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
an offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (21
U.S.C. 853), other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court shall order
that any forfeited unauthorized copies or phonorecords of a
motion picture or other audiovisual work, or part thereof, and
any plates, molds, matrices, masters, tapes, and film negatives
by means of which such unauthorized copies or phonorecords may
be made, be destroyed or otherwise disposed of according to
law.
``(3) Restitution.--When a person is convicted of an offense
under this chapter, the court, pursuant to sections 3556,
3663A, and 3664, shall order the person to pay restitution to
the owner of the copyright in the motion picture or other
audiovisual work and any other victim of the offense as an
offense against property referred to in section
3663A(c)(1)(A)(ii).''.
(e) Applicability.--The amendments made by this section shall apply
only in a case in which the underlying act or acts occur on or after
the date of the enactment of this Act.
SEC. 203. DIRECTIVE TO UNITED STATES SENTENCING COMMISSION.
(a) Review and Amendment.--The United States Sentencing Commission,
pursuant to its authority under section 994 of title 28, United States
Code, shall review and, if appropriate, amend the Federal sentencing
guidelines and policy statements applicable in any case sentenced under
section 2B5.3 of the Federal sentencing guidelines for exporting
infringing items in violation of section 602(a)(2) of title 17, United
States Code, to determine whether a defendant in such case should
receive an upward adjustment in the offense level, on the grounds that
exportation introduces infringing items into the stream of foreign
commerce in a manner analogous to the manner in which manufacturing,
importing, and uploading such items introduces them into the stream of
commerce.
(b) Authorization.--The United States Sentencing Commission may amend
the Federal sentencing guidelines under subsection (a) in accordance
with the procedures set forth in section 21(a) of the Sentencing Act of
1987 (28 U.S.C. 994 note) as though the authority under that section
had not expired.
SEC. 204. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.
(a) In General.--Section 2320 of title 18, United States Code, is
amended--
(1) in subsection (a)--
(A) by striking ``Whoever'' and inserting
``Offense.--
``(1) In general.--Whoever'';
(B) by moving the remaining text 2 ems to the right;
and
(C) by adding at the end the following:
``(2) Serious bodily harm or death.--
``(A) Serious bodily harm.--If the offender knowingly
or recklessly causes or attempts to cause serious
bodily injury from conduct in violation of paragraph
(1), the penalty shall be a fine under this title or
imprisonment for not more than 20 years, or both.
``(B) Death.--If the offender knowingly or recklessly
causes or attempts to cause death from conduct in
violation of paragraph (1), the penalty shall be a fine
under this title or imprisonment for any term of years
or for life, or both.''; and
(2) in subsection (b)(l)--
(A) by redesignating subparagraph (B) as subparagraph
(C); and
(B) by inserting after subparagraph (A) the
following:
``(B) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
a violation of subsection (a).''.
TITLE III--COORDINATION AND STRATEGIC PLANNING OF FEDERAL EFFORT
AGAINST COUNTERFEITING AND PIRACY
Subtitle A--Office of the United States Intellectual Property
Enforcement Representative
SEC. 301. OFFICE OF THE UNITED STATES INTELLECTUAL PROPERTY ENFORCEMENT
REPRESENTATIVE.
(a) Establishment Within Executive Office of the President.--There is
established within the Executive Office of the President the Office of
the United States Intellectual Property Enforcement Representative (in
this title referred to as ``the Office'').
(b) United States Intellectual Property Enforcement Representative.--
The head of the Office shall be the United States Intellectual Property
Enforcement Representative (in this title referred to as the ``IP
Enforcement Representative'') who shall be appointed by the President,
by and with the advice and consent of the Senate. As an exercise of the
rulemaking power of the Senate, any nomination of the IP Enforcement
Representative submitted to the Senate for confirmation, and referred
to a committee, shall be referred to the Committee on the Judiciary.
(c) Duties of IP Enforcement Representative.--
(1) In general.--The IP Enforcement Representative shall--
(A) have primary responsibility for developing the
Joint Strategic Plan against counterfeiting and piracy
under section 321 and facilitating the implementation
of the Joint Strategic Plan by the departments and
agencies listed in subsection (d)(2)(A);
(B) serve as a principal advisor to the President on
domestic and international intellectual property
enforcement policy;
(C) assist the United States Trade Representative--
(i) concerning negotiations on behalf of the
United States relating to international
intellectual property enforcement, including
negotiations on any intellectual property
enforcement matter considered under the
auspices of the World Trade Organization or in
the course of commodity or direct investment
negotiations in which the United States
participates; and
(ii) in the programs of the United States
Trade Representative to monitor and enforce
intellectual property enforcement obligations
of other countries under trade agreements with
the United States;
(D) coordinate the issuance of policy guidance to
departments and agencies on basic issues of policy and
interpretation that arise in the exercise of domestic
and international intellectual property enforcement
functions, to the extent necessary to assure the
coordination of intellectual property enforcement
policy and consistency with any other law;
(E) act as a principal spokesperson of the President
on domestic and international intellectual property
enforcement matters;
(F) report directly to the President and the Congress
regarding domestic and international intellectual
property enforcement programs;
(G) advise the President and the Congress with
respect to domestic and international intellectual
property enforcement challenges and priorities;
(H) report to the Congress, as provided in section
322, on the implementation of the Joint Strategic Plan,
and make recommendations to the Congress for
improvements in Federal intellectual property
enforcement efforts;
(I) chair the interagency intellectual property
enforcement advisory committee established under
subsection (d)(2), and consult with such advisory
committee in the performance of the functions of the IP
Enforcement Representative; and
(J) carry out such other functions as the President
may direct.
(2) Sense of congress.--It is the sense of the Congress that
the IP Enforcement Representative should--
(A) be a senior representative on any body that the
President may establish for the purpose of providing to
the President advice on overall policies in which
intellectual property enforcement matters predominate;
and
(B) be included as a participant in economic summit
and other international meetings at which international
intellectual property enforcement is a significant
topic.
(3) Delegation.--The IP Enforcement Representative may--
(A) delegate any of the IP Enforcement
Representative's functions, powers, and duties to such
officers and employees of the Office as the IP
Enforcement Representative may designate; and
(B) authorize such successive redelegations of such
functions, powers, and duties to such officers and
employees of the Office as the IP Enforcement
Representative considers appropriate.
(d) Coordination of Intellectual Property Enforcement Actions.--
(1) In general.--In carrying out the functions of the IP
Enforcement Representative, the IP Enforcement Representative
shall develop recommendations on the allocation of Federal
resources for intellectual property enforcement.
(2) Advisory committee.--
(A) Establishment.--There is established an
interagency intellectual property enforcement advisory
committee composed of the IP Enforcement
Representative, who shall chair the committee, and
senior representatives of the following departments and
agencies who are involved in intellectual property
enforcement, and are appointed by the respective heads
of those departments and agencies:
(i) The Department of Justice (including the
Intellectual Property Enforcement Officer
appointed under section 501).
(ii) The United States Patent and Trademark
Office and other relevant units of the
Department of Commerce.
(iii) The Office of the United States Trade
Representative.
(iv) The Department of State (including the
United States Agency for International
Development and the Bureau of International
Narcotics Law Enforcement).
(v) The Department of Homeland Security
(including U.S. Customs and Border Protection
and U.S. Immigration and Customs Enforcement).
(vi) The United States International Trade
Commission.
(vii) The Food and Drug Administration of the
Department of Health and Human Services.
(viii) The United States Copyright Office.
(ix) Such other agencies as the IP
Enforcement Representative determines to be
substantially involved in the efforts of the
Federal Government to combat counterfeiting and
piracy.
(B) Functions.--The advisory committee established
under subparagraph (A) shall, under the guidance of the
IP Enforcement Representative, develop the Joint
Strategic Plan against counterfeiting and piracy under
section 321.
(3) Exemption from federal advisory committee act.--The
Federal Advisory Committee Act shall not apply to the
interagency intellectual property enforcement advisory
committee established under paragraph (2) or to any of the
activities conducted by the IP Enforcement Representative in
developing the Joint Strategic Plan under section 321.
(e) Identification of Countries That Deny Adequate Protection of
Intellectual Property Rights.--Section 182(b)(2)(A) of the Trade Act of
1974 (19 U.S.C. 2242(b)(2)(A)) is amended by inserting ``the United
States Intellectual Property Enforcement Representative,'' after
``consult with''.
(f) Powers of IP Enforcement Representative.--In carrying out the
responsibilities under this title, the IP Enforcement Representative
may--
(1) select, appoint, employ, and fix the compensation of such
officers and employees as may be necessary to carry out those
responsibilities;
(2) request the head of a department, agency, or program of
the Federal Government to place personnel of such department,
agency, or program who are engaged in intellectual property
enforcement activities on temporary detail to the Office of the
IP Enforcement Representative to assist in carrying out those
responsibilities;
(3) use, with the consent of the Federal, State, and local
government agencies concerned, the available services,
equipment, personnel, and facilities of such Federal, State,
and local government agencies;
(4) procure the services of experts and consultants in
accordance with section 3109 of title 5, United States Code,
relating to the procurement of temporary and intermittent
services, at rates of compensation for individuals not to
exceed the daily equivalent of the rate of pay payable under
level IV of the Executive Schedule under section 5315 of title
5, United States Code, and while such experts and consultants
are so serving away from their homes or regular place of
business, pay such employees travel expenses and per diem in
lieu of subsistence at rates authorized by section 5703 of
title 5, United States Code, for persons in Government service
employed intermittently;
(5) issue such regulations as may be necessary to carry out
the functions vested in the IP Enforcement Representative;
(6) enter into and perform such contracts, leases,
cooperative agreements, or other transactions as may be
necessary in the conduct of the work of the Office and on such
terms as the IP Enforcement Representative considers
appropriate, with any department, agency, or instrumentality of
the United States, or with any public or private person, firm,
association, corporation, or institution;
(7) accept voluntary and uncompensated services,
notwithstanding the provisions of section 1342 of title 31,
United States Code;
(8) adopt an official seal, which shall be judicially
noticed; and
(9) accept, hold, administer, and use gifts, devises, and
bequests of property, both real and personal, for the purpose
of aiding or facilitating the work of the Office.
(g) Compensation.--Section 5312 of title 5, United States Code, is
amended by adding at the end the following:
``United States Intellectual Property Enforcement
Representative.''.
SEC. 302. DEFINITION.
For purposes of this title, the term ``intellectual property
enforcement'' means matters relating to the enforcement of laws
protecting copyrights, patents, trademarks, other forms of intellectual
property, and trade secrets, both in the United States and abroad,
including in particular matters relating to combating counterfeit and
pirated goods.
Subtitle B--Joint Strategic Plan
SEC. 321. JOINT STRATEGIC PLAN.
(a) Purpose.--The objectives of the Joint Strategic Plan against
counterfeiting and piracy that is referred to in section 301(c)(1)(A)
(in this section referred to as the ``joint strategic plan'') are the
following:
(1) Reducing counterfeit and pirated goods in the domestic
and international supply chain.
(2) Identifying and addressing structural weaknesses,
systemic flaws, or other unjustified impediments to effective
enforcement action against the financing, production,
trafficking, or sale of counterfeit or pirated goods.
(3) Assuring that information is identified and shared among
the relevant departments and agencies, to the extent permitted
by law and consistent with law enforcement protocols for
handling information, to aid in the objective of arresting and
prosecuting individuals and entities that are knowingly
involved in the financing, production, trafficking, or sale of
counterfeit or pirated goods.
(4) Disrupting and eliminating domestic and international
counterfeiting and piracy networks.
(5) Strengthening the capacity of other countries to protect
and enforce intellectual property rights, and reducing the
number of countries that fail to enforce laws preventing the
financing, production, trafficking, and sale of counterfeit and
pirated goods.
(6) Working with other countries to establish international
standards and policies for the effective protection and
enforcement of intellectual property rights.
(7) Protecting intellectual property rights overseas by--
(A) working with other countries to ensure that such
countries--
(i) have adequate and effective laws
protecting copyrights, trademarks, patents, and
other forms of intellectual property;
(ii) have legal regimes that enforce their
own domestic intellectual property laws,
eliminate counterfeit and piracy operations,
and arrest and prosecute those who commit
intellectual property crimes;
(iii) provide their law enforcement officials
with the authority to seize, inspect, and
destroy pirated and counterfeit goods,
including at ports of entry; and
(iv) provide for the seizure of property used
to produce pirated and counterfeit goods;
(B) exchanging information with appropriate law
enforcement agencies in other countries relating to
individuals and entities involved in the financing,
production, trafficking, or sale of pirated or
counterfeit goods;
(C) using the information described in subparagraph
(B) to conduct enforcement activities in cooperation
with appropriate law enforcement agencies in other
countries; and
(D) building a formal process for consulting with
companies, industry associations, labor unions, and
other interested groups in other countries with respect
to intellectual property enforcement.
(b) Timing.--Not later than 12 months after the date of the enactment
of this Act, and not later than December 31 of every third year
thereafter, the IP Enforcement Representative shall submit the joint
strategic plan to the President, to the Committee on the Judiciary and
the Committee on Appropriations of the House of Representatives, and to
the Committee on the Judiciary and the Committee on Appropriations of
the Senate.
(c) Responsibility of the IP Enforcement Representative.--During the
development of the joint strategic plan, the IP Enforcement
Representative--
(1) shall consult and coordinate with the appropriate
officers and employees of departments and agencies represented
on the advisory committee appointed under section 301(d)(2) who
are involved in intellectual property enforcement; and
(2) may consult with private sector experts in intellectual
property enforcement.
(d) Responsibilities of Other Departments and Agencies.--To assist in
the development and implementation of the joint strategic plan, the
heads of the departments and agencies identified under section
301(d)(2)(A) (including the heads of any other agencies identified by
the IP Enforcement Representative under section 301(d)(2)(A)(ix))
shall--
(1) designate personnel with expertise and experience in
intellectual property enforcement matters to work with the IP
Enforcement Representative; and
(2) share relevant department or agency information with the
IP Enforcement Representative, including statistical
information on the enforcement activities of the department or
agency against counterfeiting or piracy, and plans for
addressing the joint strategic plan.
(e) Contents of the Joint Strategic Plan.--Each joint strategic plan
shall include the following:
(1) A detailed description of the priorities identified for
carrying out the objectives in the joint strategic plan,
including activities of the Federal Government relating to
intellectual property enforcement.
(2) A detailed description of the means and methods to be
employed to achieve the priorities, including the means and
methods for improving the efficiency and effectiveness of the
Federal Government's enforcement efforts against counterfeiting
and piracy.
(3) Estimates of the resources necessary to fulfill the
priorities identified under paragraph (1).
(4) The performance measures to be used to monitor results
under the joint strategic plan during the following year.
(5) An analysis of the threat posed by violations of
intellectual property rights, including targets, risks, and
threats of intellectual property infringement, the costs to the
economy of the United States resulting from violations of
intellectual property laws, and the threats to public health
and safety created by counterfeiting and piracy.
(6) An identification of the departments and agencies that
will be involved in implementing each priority under paragraph
(1).
(7) A strategy for ensuring coordination between the IP
Enforcement Representative and the departments and agencies
identified under paragraph (6), including a process for
oversight by the executive branch of, and accountability among,
the departments and agencies responsible for carrying out the
strategy.
(8) Such other information as is necessary to convey the
costs imposed on the United States economy by, and the threats
to public health and safety created by, counterfeiting and
piracy, and those steps that the Federal Government intends to
take over the period covered by the succeeding joint strategic
plan to reduce those costs and counter those threats.
(f) Enhancing Enforcement Efforts of Foreign Governments.--The joint
strategic plan shall include programs to provide training and technical
assistance to foreign governments for the purpose of enhancing the
efforts of such governments to enforce laws against counterfeiting and
piracy. With respect to such programs, the joint strategic plan shall--
(1) seek to enhance the efficiency and consistency with which
Federal resources are expended, and seek to minimize
duplication, overlap, or inconsistency of efforts;
(2) identify and give priority to those countries where
programs of training and technical assistance can be carried
out most effectively and with the greatest benefit to reducing
counterfeit and pirated products in the United States market,
to protecting the intellectual property rights of United States
persons and their licensees, and to protecting the interests of
United States persons otherwise harmed by violations of
intellectual property rights in those countries;
(3) in identifying the priorities under paragraph (2), be
guided by the list of countries identified by the United States
Trade Representative under section 182(a) of the Trade Act of
1974 (19 U.S.C. 2242(a)); and
(4) develop metrics to measure the effectiveness of the
Federal Government's efforts to improve the laws and
enforcement practices of foreign governments against
counterfeiting and piracy.
(g) Dissemination of the Joint Strategic Plan.--The joint strategic
plan shall be posted for public access on the website of the White
House, and shall be disseminated to the public through such other means
as the IP Enforcement Representative may identify.
SEC. 322. REPORTING.
(a) Annual Report.--Not later than December 31 of each calendar year
beginning in 2009, the IP Enforcement Representative shall submit a
report on the activities of the Office during the preceding fiscal
year. The annual report shall be submitted to the President and the
Congress, and disseminated to the people of the United States, in the
manner specified in subsections (b) and (g) of section 321.
(b) Contents.--The report required by this section shall include the
following:
(1) The progress made on implementing the strategic plan and
on the progress toward fulfillment of the priorities identified
under section 321(e), including an analysis of the performance
measures used to monitor results described in section
321(e)(4).
(2) The progress made in efforts to encourage Federal, State,
and local government departments and agencies to accord higher
priority to intellectual property enforcement.
(3) The progress made in working with foreign countries to
investigate, arrest, and prosecute entities and individuals
involved in the financing, production, trafficking, and sale of
counterfeit and pirated goods.
(4) The manner in which the relevant departments and agencies
are working together and sharing information to strengthen
intellectual property enforcement.
(5) An assessment of the successes and shortcomings of the
efforts of the Federal Government, including departments and
agencies represented on the committee established under section
301(d)(2)(A), in fulfilling the priorities identified in the
applicable joint strategic plan during the preceding fiscal
year and in implementing the recommendations developed under
section 301(d)(1).
(6) Recommendations for any changes in enforcement statutes,
regulations, or funding levels that the IP Representative
considers would significantly improve the effectiveness or
efficiency of the effort of the Federal Government to combat
counterfeiting and piracy and otherwise strengthen intellectual
property enforcement, including through the elimination or
consolidation of duplicative programs or initiatives.
(7) The progress made in strengthening the capacity of
countries to protect and enforce intellectual property rights.
(8) The successes and challenges in sharing with other
countries information relating to intellectual property
enforcement.
(9) The progress of the United States Trade Representative in
taking the appropriate action under any trade agreement or
treaty to protect intellectual property rights of United States
persons and their licensees.
SEC. 323. SAVINGS AND REPEALS.
(a) Repeal of Coordination Council.--Section 653 of the Treasury and
General Government Appropriations Act, 2000 (15 U.S.C. 1128) is
repealed.
(b) Current Authorities Not Affected.--Except as provided in
subsection (a), nothing in this title shall alter the authority of any
department or agency of the United States (including any independent
agency) relating to--
(1) investigating and prosecuting violations of laws
protecting intellectual property rights;
(2) administratively enforcing, at the borders of the United
States, laws protecting intellectual property rights; or
(3) international trade or the United States trade agreements
program.
(c) Register of Copyrights.--Nothing in this title shall derogate
from the duties and functions of the Register of Copyrights.
SEC. 324. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated for each
fiscal year such sums as may be necessary to carry out this title.
(b) Submission of Projected Budget.--By not later than the date on
which the President submits to the Congress the budget of the United
States Government for a fiscal year, the IP Representative shall submit
to the Committees on the Judiciary of the House of Representatives and
the Senate the projected amount of funds for the succeeding fiscal year
that will be necessary for the Office to carry out its functions.
TITLE IV--INTERNATIONAL ENFORCEMENT AND COORDINATION
SEC. 401. INTELLECTUAL PROPERTY ATTACHES.
The Under Secretary of Commerce for Intellectual Property and
Director of the United States Patent and Trademark Office (in this
title referred to as the ``Director''), in consultation with the
Director General of the United States and Foreign Commercial Service,
shall, within 2 years after the date of the enactment of this Act,
appoint at least 10 intellectual property attaches to serve in United
States embassies or other diplomatic missions. The appointments under
this section shall be in addition to those individuals serving in the
capacity of intellectual property attaches at United States embassies
or other diplomatic missions on the date of the enactment of this Act.
The Director shall provide such managerial, administrative, research,
and other services as the Secretary of Commerce considers necessary to
assist the intellectual property attaches in carrying out their
responsibilities.
SEC. 402. DUTIES AND RESPONSIBILITIES OF INTELLECTUAL PROPERTY
ATTACHES.
The intellectual property attaches appointed under section 401, as
well as others serving as intellectual property attaches of the
Department of Commerce, shall have the following responsibilities:
(1) To promote cooperation with foreign governments in the
enforcement of intellectual property laws generally, and in the
enforcement of laws against counterfeiting and piracy in
particular.
(2) To assist United States persons holding intellectual
property rights, and the licensees of such United States
persons, in their efforts to combat counterfeiting and piracy
of their products or works within the host country, including
counterfeit or pirated goods exported from or transshipped
through that country.
(3) To chair an intellectual property protection task force
consisting of representatives from all other relevant sections
or bureaus of the embassy or other mission.
(4) To coordinate with representatives of the embassies or
missions of other countries in information sharing, private or
public communications with the government of the host country,
and other forms of cooperation for the purpose of improving
enforcement against counterfeiting and piracy.
(5) As appropriate and in accordance with applicable laws and
the diplomatic status of the attaches, to engage in public
education efforts against counterfeiting and piracy in the host
country.
(6) To coordinate training and technical assistance programs
of the United States Government within the host country that
are aimed at improving the enforcement of laws against
counterfeiting and piracy.
(7) To assist in the coordination of the efforts of the
United States Intellectual Property Enforcement Representative,
Federal agencies, and private organizations engaged in the
promotion of United States intellectual property interests
abroad so as to maximize their effectiveness and minimize
duplicative efforts.
(8) To identify and promote other means to more effectively
combat counterfeiting and piracy activities under the
jurisdiction of the host country.
SEC. 403. TRAINING AND DESIGNATION OF ASSIGNMENT.
(a) Training of Attaches.--The Director shall ensure that each
attache appointed under section 401 is fully trained for the
responsibilities of the position before assuming duties at the United
States embassy or other mission in question.
(b) Priority Assignments.--In designating the embassies or other
missions to which attaches are assigned, the Director shall give
priority to those countries where the activities of an attache can be
carried out most effectively and with the greatest benefit to reducing
counterfeit and pirated products in the United States market, to
protecting the intellectual property rights of United States persons
and their licensees, or to protecting the interests of United States
persons otherwise harmed by violations of intellectual property rights
in those countries.
SEC. 404. COORDINATION.
(a) In General.--The activities authorized by this title shall be
carried out in coordination with the United States Intellectual
Property Enforcement Representative appointed under section 301.
(b) Report on Attaches.--The Inspector General of the Department of
Commerce shall perform yearly audits of the intellectual property
attaches of the Department, and shall report to the Committees on the
Judiciary of the House of Representatives and the Senate the results of
each such audit. In addition to an overview of the activities and
effectiveness of the intellectual property attache operations, the
audit shall include--
(1) an evaluation of the current placement of foreign-based
personnel and recommendations for transferring such personnel
in response to newly emerging intellectual property issues
abroad; and
(2) an evaluation of the personnel system and its management,
including the recruitment, assignment, promotion, and
performance appraisal of personnel, and the use of limited
appointees.
SEC. 405. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each fiscal year such
sums as may be necessary for the training and support of the
intellectual property attaches appointed under section 401 and of other
individuals serving as intellectual property attaches of the Department
of Commerce.
TITLE V--DEPARTMENT OF JUSTICE PROGRAMS
Subtitle A--Coordination
SEC. 501. INTELLECTUAL PROPERTY ENFORCEMENT OFFICER.
(a) Establishment.--There is established within the Office of the
Deputy Attorney General in the Department of Justice the ``Intellectual
Property Enforcement Division''. The head of the Intellectual Property
Enforcement Division shall be the Intellectual Property Enforcement
Officer (in this title referred to as the ``IP Officer''). The IP
Officer shall be appointed by the Attorney General and shall report
directly to the Deputy Attorney General.
(b) Duties.--The IP Officer shall--
(1) coordinate all efforts of the Department of Justice
relating to the enforcement of intellectual property rights and
to combating counterfeiting and piracy;
(2) serve as the lead representative of the Department of
Justice on the advisory committee provided for in section
301(d)(2) and as the liaison of the Department of Justice with
foreign governments with respect to training conducted under
section 522; and
(3) carry out such other related duties that may be assigned
by the Deputy Attorney General.
(c) Transfer of Functions.--
(1) Criminal intellectual property enforcement.--There are
transferred to the Intellectual Property Enforcement Division
those functions of the Computer Crime and Intellectual Property
Section of the Criminal Division of the Department of Justice
that relate to the enforcement of criminal laws relating to the
protection of intellectual property rights and trade secrets,
including the following:
(A) Sections 506 and 1204 of title 17, United States
Code.
(B) Sections 2318 through 2320 of title 18, United
States Code.
(C) Sections 1831 and 1832 of title 18, United States
Code.
(D) Any other provision of law, including the
following, to the extent such provision involves the
enforcement of any provision of law referred to in
subparagraphs (A) through (C) or comparable provision
of law:
(i) Section 1341 of title 18, United States
Code, relating to frauds and swindles.
(ii) Section 1343 of title 18, United States
Code, relating to fraud by wire, radio, or
television.
(iii) Section 2512 of title 18, United States
Code, relating to trafficking in interception
devices.
(iv) Section 633 of the Communications Act of
1934 (47 U.S.C. 553), relating to the
unauthorized reception of cable service.
(v) Section 705 of the Communications Act of
1934 (47 U.S.C. 605), relating to the
unauthorized publication or use of
communications.
(2) Intellectual property enforcement coordinators.--The
Intellectual Property Law Enforcement Coordinators of the
Department of Justice to whom section 521 applies shall also be
in the Intellectual Property Enforcement Division.
Subtitle B--Law Enforcement Resources
SEC. 511. LOCAL LAW ENFORCEMENT GRANTS.
(a) Authorization.--Section 2 of the Computer Crime Enforcement Act
(42 U.S.C. 3713) is amended--
(1) in subsection (b), by inserting after ``computer crime''
each place it appears the following: ``, including infringement
of copyrighted works over the Internet''; and
(2) in subsection (e)(1), relating to authorization of
appropriations, by striking ``fiscal years 2001 through 2004''
and inserting ``fiscal years 2009 through 2013''.
(b) Grants.--The Office of Justice Programs of the Department of
Justice shall make grants to eligible State or local law enforcement
entities, including law enforcement agencies of municipal governments
and public educational institutions, for training, prevention,
enforcement, and prosecution of intellectual property theft and
infringement crimes (in this subsection referred to as ``IP-TIC
grants''), in accordance with the following:
(1) Use of ip-tic grant amounts.--IP-TIC grants may be used
to establish and develop programs to do the following with
respect to the enforcement of State and local true name and
address laws and State and local criminal laws on anti-piracy,
anti-counterfeiting, and unlawful acts with respect to goods by
reason of their protection by a patent, trademark, service
mark, trade secret, or other intellectual property right under
State or Federal law:
(A) Assist State and local law enforcement agencies
in enforcing those laws, including by reimbursing State
and local entities for expenses incurred in performing
enforcement operations, such as overtime payments and
storage fees for seized evidence.
(B) Assist State and local law enforcement agencies
in educating the public to prevent, deter, and identify
violations of those laws.
(C) Educate and train State and local law enforcement
officers and prosecutors to conduct investigations and
forensic analyses of evidence and prosecutions in
matters involving those laws.
(D) Establish task forces that include personnel from
State or local law enforcement entities, or both,
exclusively to conduct investigations and forensic
analyses of evidence and prosecutions in matters
involving those laws.
(E) Assist State and local law enforcement officers
and prosecutors in acquiring computer and other
equipment to conduct investigations and forensic
analyses of evidence in matters involving those laws.
(F) Facilitate and promote the sharing, with State
and local law enforcement officers and prosecutors, of
the expertise and information of Federal law
enforcement agencies about the investigation, analysis,
and prosecution of matters involving those laws and
criminal infringement of copyrighted works, including
the use of multi-jurisdictional task forces.
(2) Eligibility.--To be eligible to receive an IP-TIC grant,
a State or local government entity must provide to the Attorney
General--
(A) assurances that the State in which the government
entity is located has in effect laws described in
paragraph (1);
(B) an assessment of the resource needs of the State
or local government entity applying for the grant,
including information on the need for reimbursements of
base salaries and overtime costs, storage fees, and
other expenditures to improve the investigation,
prevention, or enforcement of laws described in
paragraph (1); and
(C) a plan for coordinating the programs funded under
this section with other federally funded technical
assistance and training programs, including directly
funded local programs such as the Edward Byrne Memorial
Justice Assistance Grant Program authorized by subpart
1 of part E of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).
(3) Matching funds.--The Federal share of an IP-TIC grant may
not exceed 90 percent of the costs of the program or proposal
funded by the IP-TIC grant, unless the Attorney General waives,
in whole or in part, the 90 percent requirement.
(4) Authorization of appropriations.--
(A) Authorization.--There is authorized to be
appropriated to carry out this subsection the sum of
$25,000,000 for each of fiscal years 2008 through 2012.
(B) Limitation.--Of the amount made available to
carry out this subsection in any fiscal year, not more
than 3 percent may be used by the Attorney General for
salaries and administrative expenses.
SEC. 512. CHIP UNITS, TRAINING, AND ADDITIONAL RESOURCES.
(a) Evaluation of CHIP Units.--The Attorney General shall review the
allocation and activities of the Computer Hacking and Intellectual
Property (in this section referred to as ``CHIP'') units that have been
established in various Federal judicial districts, with the goals of--
(1) improving the effectiveness of CHIP units in
investigating and prosecuting criminal offenses arising from
counterfeiting or piracy activities;
(2) ensuring that CHIP units are established and funded in
every judicial district in which they can be effectively
deployed;
(3) upgrading the training and expertise of Department of
Justice personnel participating in CHIP units; and
(4) improving the coordination of the activities of CHIP
units with corresponding efforts of State and local law
enforcement agencies operating within the Federal judicial
district in question.
(b) Requirements.--In addition to any initiatives undertaken as a
result of the review conducted under subsection (a), the Attorney
General, in consultation with the Director of the Federal Bureau of
Investigation, shall ensure that--
(1) each CHIP unit is supported by at least 2 additional
agents of the Federal Bureau of Investigation for the purpose
of investigating intellectual property crimes;
(2) each CHIP unit is assigned at least 1 additional
assistant United States attorney to support such unit for the
purpose of prosecuting intellectual property crimes or other
crimes involved in counterfeiting or piracy activities;
(3) CHIP units are established and staffed in at least 10
Federal judicial districts in addition to those districts in
which CHIP units exist on the date of the enactment of this
Act; and
(4) an operational unit is created consisting of not less
than 5 agents of the Federal Bureau of Investigation, attached
to the headquarters of the Federal Bureau of Investigation in
Washington, D.C., and dedicated to working with the
Intellectual Property Enforcement Division established by
section 501 on the development, investigation, and coordination
of complex, multi-district, and international criminal
intellectual property cases.
(c) Coordination With State and Local Authorities.--The United States
attorney for each Federal judicial district in which a CHIP unit is in
operation shall ensure that the activities of that unit are coordinated
with the corresponding activities of State and local law enforcement
agencies operating within that Federal judicial district in the
investigation of intellectual property crimes and other crimes involved
in counterfeiting or piracy, including by coordinating Federal, State,
and local operations and intelligence sharing to the extent
appropriate.
(d) Additional Responsibilities of the Attorney General.--The
Attorney General, in consultation with the Director of the Federal
Bureau of Investigation as appropriate, shall ensure the following:
(1) All assistant United States attorneys who are assigned to
CHIP units, and all agents of the Federal Bureau of
Investigation who support those units, have received advanced
training, on an annual basis, in the investigation and
prosecution of intellectual property crimes and other crimes
involved in counterfeiting and piracy.
(2) All relevant units of the Department of Justice are
allocated sufficient funding and other resources as may be
necessary to provide expert computer forensic assistance,
including from nongovernmental entities, in investigating and
prosecuting intellectual property crimes in a timely manner.
For purposes of this paragraph, the term ``all relevant units''
includes those officers and employees assigned to carry out the
functions transferred by section 501(c)(1), CHIP units, offices
of the United States attorneys, and units of the Federal Bureau
of Investigation that are engaged in the investigation of
intellectual property crimes.
SEC. 513. TRANSPARENCY OF PROSECUTORIAL DECISIONMAKING.
(a) In General.--The Attorney General shall direct each United States
attorney--
(1) to review the formal or informal standards currently in
effect in that Federal judicial district for accepting or
declining prosecution of cases involving criminal violations of
intellectual property laws;
(2) to consider whether the standards should be modified or
applied more flexibly--
(A) to ensure that significant violations are not
being declined for prosecution inappropriately; or
(B) in light of the broader impact of individual
cases on the overall strategy to combat counterfeiting
and piracy; and
(3) to review the practices and procedures currently in place
for providing information to complainants and victims in cases
and investigations involving criminal violations of
intellectual property laws regarding the status of such cases
and investigations, including the practices and procedures for
apprising interested parties of the decision to decline
prosecution of such cases.
(b) Construction.--
(1) Prosecutorial matters.--Nothing in this section shall be
construed to impinge on the appropriate exercise of
prosecutorial discretion with regard to cases involving
criminal violations of intellectual property laws or to require
the promulgation of formal standards or thresholds regarding
prosecution of any cases.
(2) No claims, etc., may be asserted.--Nothing in the section
shall give rise to any claim, cause of action, defense,
privilege, or immunity that may be asserted by any party to
Federal litigation.
SEC. 514. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each fiscal year such
sums as may be necessary to carry out this subtitle.
Subtitle C--International Activities
SEC. 521. INTERNATIONAL INTELLECTUAL PROPERTY LAW ENFORCEMENT
COORDINATORS.
(a) Deployment of Additional Coordinators.--The Attorney General
shall, within 180 days after the date of the enactment of this Act,
deploy 5 Intellectual Property Law Enforcement Coordinators, in
addition to those serving in such capacity on such date of enactment.
Such deployments shall be made to those countries and regions where the
activities of such a coordinator can be carried out most effectively
and with the greatest benefit to reducing counterfeit and pirated
products in the United States market, to protecting the intellectual
property rights of United States persons and their licensees, and to
protecting the interests of United States persons otherwise harmed by
violations of intellectual property rights in those countries. The
mission of all International Intellectual Property Law Enforcement
Coordinators shall include the following:
(1) Acting as liaison with foreign law enforcement agencies
and other foreign officials in criminal matters involving
intellectual property rights.
(2) Performing outreach and training to build the enforcement
capacity of foreign governments against intellectual property-
related crime in the regions in which the coordinators serve.
(3) Coordinating United States law enforcement activities
against intellectual property-related crimes in the regions in
which the coordinators serve.
(4) Coordinating with the activities of the intellectual
property attaches appointed under title IV in the countries or
regions to which the coordinators are deployed.
(5) Coordinating the activities of the coordinators with the
IP Officer.
(b) Authorization of Appropriations.--There are authorized to be
appropriated for each fiscal year such sums as may be necessary for the
deployment and support of all International Intellectual Property
Enforcement Coordinators of the Department of Justice, including those
deployed under subsection (a).
SEC. 522. INTERNATIONAL TRAINING ACTIVITIES OF THE COMPUTER CRIME AND
INTELLECTUAL PROPERTY SECTION.
(a) Increased Training and Technical Assistance to Foreign
Governments.--The Attorney General shall increase the efforts of the
Department of Justice to provide training and technical assistance to
foreign governments, including foreign law enforcement agencies and
foreign courts, to more effectively combat counterfeiting and piracy
activities falling within the jurisdiction of such governments.
(b) Conduct of Programs.--The increased training and technical
assistance programs under subsection (a) shall be carried out by the
Intellectual Property Enforcement Division established by section 501,
as well as through such other divisions, sections, or agencies of the
Department of Justice as the Attorney General may direct.
(c) Priority Countries.--The Attorney General, in providing increased
training and technical assistance programs under this section, shall
give priority to those countries where such programs can be carried out
most effectively and with the greatest likelihood of reducing
counterfeit and pirated products in the United States market, of
protecting the intellectual property rights of United States persons,
or of protecting the interests of United States persons otherwise
harmed by violations of intellectual property rights in those
countries.
(d) Authorization of Appropriations.--There are authorized to be
appropriated for each fiscal year such sums as may be necessary to
carry out this section.
Subtitle D--Coordination, Implementation,
and Reporting
SEC. 531. COORDINATION.
The IP officer shall ensure that activities undertaken under this
title are carried out in a manner consistent with the joint strategic
plan developed under section 321.
SEC. 532. ANNUAL REPORTS.
Not later than 1 year after the date of the enactment of this Act,
and annually thereafter, the Attorney General shall submit to the
Committees on the Judiciary of the Senate and the House of
Representatives a report on actions taken to carry out this title,
including a report on the activities of the IP Officer.
Purpose and Summary
The purpose of H.R. 4279, the ``Prioritizing Resources and
Organization for Intellectual Property Act of 2008'' (PRO IP
Act), is to improve intellectual property enforcement in the
United States and abroad. Titles 1 and 2 of the PRO IP Act
strengthen civil and criminal intellectual property laws. This
includes providing stiffer penalties for piracy and
counterfeiting activities, harmonizing forfeiture procedures
for intellectual property offenses, making it illegal to export
counterfeit goods, and eliminating loopholes that might prevent
enforcement of otherwise validly registered copyrights. Title 3
establishes an Intellectual Property Enforcement Representative
(IPER) responsible for coordinating all Federal Government IP
enforcement efforts. The IPER will be established in the
Executive Office of the President and, with the cooperation of
all the relevant government agencies, will be responsible for
producing a Joint Strategic Plan for national intellectual
property enforcement. Titles 4 and 5 of the Act strengthen the
Administration's ability to address intellectual property
rights violations. It reorganizes intellectual property
enforcement within the Department of Justice and provides
additional resources to investigate and prosecute intellectual
property crimes. It provides for intellectual property
enforcement coordinators and additional intellectual property
attaches to strengthen respect for intellectual property rights
in foreign countries. And, it authorizes $25 million in grant
money to help state and local law enforcement combat
intellectual property crimes.
Background and Need for the Legislation
The knowledge, creativity, and industry of American
citizens are essential to the economic strength of our nation.
Intellectual property law provides the principal incentives
that stimulate the creation and production of new innovations,
inventions, and works. Countless studies have shown that many
United States businesses and entrepreneurs rely on intellectual
property rights to protect the significant investments of time,
resources, and creativity that result in copyrights,
trademarks, and patents. According to a recent report on
intellectual property-intensive manufacturing, ``two-thirds of
the value of America's large businesses can be traced back to
intangible assets that embody ideas, especially . . . patents
and trademarks.'' \1\
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\1\ Robert Shapiro and Nam Pham, Economic Effects of Intellectual
Property-Intensive Manufacturing in the United States, prepared for
World Growth (July 2007).
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Another report, which focused solely on the copyright
industries, found that their direct and indirect contributions
to the United States economy amounted to $1.3 trillion in 2004
and $1.38 trillion in 2005.\2\ In total, intellectual property-
related businesses accounted for, on average, about 18 percent
of the United States Gross Domestic Product (GDP) from 1998
through 2003. Intellectual property-based industries employed
18 million workers, or about 13 percent of the United States
labor force. Intellectual property-based industries are also
estimated to have accounted for 26 percent of the annual real
GDP growth rate from 1998 to 2003, and about 40 percent of
United States exports of goods and services in 2003 through
2004.\3\ The reliance by United States businesses on
intellectual property has grown over time, and is expected to
continue to grow as the United States further develops into a
predominantly knowledge-based economy.
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\2\ Stephen Siwek, Copyright Industries in the U.S. Economy; The
2006 Report, prepared for the International Intellectual Property
Alliance (Nov. 2006).
\3\ Government Accountability Office, Intellectual Property:
Federal Enforcement has Generally Increased, but Assessing Performance
Could Strengthen Law Enforcement Efforts (GAO-08-157), Report to
Ranking Member, Subcommittee on Oversight of Government Management, the
Federal Workforce, and the District of Columbia, Committee on Homeland
Security and Government Affairs, U.S. Senate (Mar. 2008) [hereinafter
``GAO March 2008 Report''].
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While intellectual property is the bedrock upon which
United States businesses have grown and thrived, increasing
intellectual property theft in the United States and globally
threatens the future economic prosperity of our nation.
Conservative estimates indicate that the United States economy
loses between $200 and $250 billion per year, and has lost
750,000 jobs, due to intellectual property theft.\4\ Some
estimates indicate that counterfeit and pirated goods comprise
six to nine percent of all world trade, the bulk of which
violates the intellectual property rights of United States
businesses and entrepreneurs.\5\
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\4\ International Anti-Counterfeiting Coalition, Get Real - The
Truth About Counterfeiting (visited September 21, 2007), .
\5\ Counterfeiting and Theft of Intellectual Property: Challenges
and Solutions: Hearing Before the S. Comm. on the Judiciary, 108th
Cong. (2004) (statement of Thomas Donohue, President and CEO of the
U.S. Chamber of Commerce).
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Intellectual property theft also poses major risks to
public health and safety, as goods like prescription drugs,
food products, electrical equipment and products, and
automobile and airline parts increasingly become the targets of
intellectual property thieves. Often, counterfeit and pirated
products do not meet minimum regulatory or industry standards,
are made with substandard parts, or contain harmful and in some
cases potentially fatal ingredients. In June 2007, counterfeit
toothpaste that contained diethylene glycol, a chemical used in
antifreeze, was distributed and sold to American consumers.\6\
In another incident, the United States Food and Drug
Administration recalled 200,000 bottles of fake Lipitor, a drug
used by millions to control high cholesterol.\7\ In yet another
high profile incident, investigators in New York City
apprehended six auto parts dealers who were selling more than
$700,000 worth of counterfeit ignition coils, sway bars, and
brake pads.\8\ Countless more news articles have documented the
variety of counterfeit products that impact public health and
safety.\9\
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\6\ Mac Daniel, Officials find contaminated toothpaste in Hub
stores, Boston Globe, July 12, 2007, at B7.
\7\ David Schwab, Phony Lipitor Scheme Detailed, The Star-Ledge,
Oct. 16, 2003, at 25.
\8\ Briefing, Auto Bust, Newsday, Dec. 2, 2004, at A18.
\9\ Warning: Substandard Batteries Linked to Explosions, U.S.
Newswire, Apr. 3, 2008; Fake Parts are Seeping Into Military Aircraft
Maintenance Depots, Inside the Air Force, Mar. 28, 2008, Vol. 19, No.
13; Sarah Netter, More Counterfeit Extension Cords Found, The Journal
News (New York), Dec. 30, 2007, at 6A; Peter Pitts, Copycat Drugs
Present Long-Term Threat to U.S., Tampa Trib., Nov. 29, 2007, at 13;
David Kolman, Suppliers Warn Fleets About Parts Deals That Seem Too
Good to be True, Bulk Transporter, Nov. 1, 2007, at 26; Fake Crane
Parts Pose Danger to Contractors, Contract J., July 18, 2007, at 1;
Kerry Burke & Dave Goldliner, Bogus Condoms a Trojan Horse, Daily News
(New York), May 30, 2007, at 6.
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In recent years, the United States government has responded
to the threats posed by the rise in intellectual property theft
by increasing the resources available for intellectual property
enforcement, and by developing new mechanisms to meet this
challenge. The Department of Justice has increased the number
of attorneys available for intellectual property prosecutions.
The United States Patent and Trademark Office has established
an intellectual property attache program that places experts
internationally where United States rights holders are
encountering obstacles to effective intellectual property
protection and enforcement.
While IP enforcement resources have increased, these
increases unfortunately have not kept pace with the dramatic
growth in the volume and proliferation of counterfeit and
pirated goods produced and distributed globally. Further,
growing evidence indicates that intellectual property thieves
have become more sophisticated, employing loosely organized,
decentralized multinational networks to facilitate the movement
of illegal goods. These networks are designed to quickly adopt
new technologies, strategies, suppliers, or distributors in
order to adeptly evade detection, capture, and prosecution.\10\
According to INTERPOL, intellectual property theft is so
lucrative that international organized criminal syndicates have
entered into and are profiting from trade in these illegal
markets.
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\10\ See generally, Moises Naim, Illicit: How Smugglers,
Traffickers, and Copycats are Hijacking the Global Economy (2005).
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Given the substantial and rising importance of intellectual
property to the United States economy, the threat that IP theft
poses to United States businesses and to public health and
safety, and the growing capabilities of intellectual property
thieves, it is critical that IP enforcement be improved both
domestically and internationally. To this end, a number of
entities have recently released documents that provide detailed
recommendations on the methods and mechanisms that the United
States government can employ to strengthen intellectual
property enforcement. These recommendations have been reviewed
and were considered in the drafting of this Act. Among the most
important of these documents are the Campaign to Protect
America proposal from the Coalition Against Counterfeiting and
Piracy,\11\ the Department of Justice's Intellectual Property
Protection Act legislative proposal, and a series of Government
Accountability Office (GAO) reports and testimony before
Congress.\12\
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\11\ The Coalition Against Counterfeiting and Piracy (CACP),
Intellectual Property Enforcement Initiative: Campaign to Protect
America (2007). The CACP is an initiative organized by the United
States Chamber of Commerce. The CACP's members include over 500
companies and trade associations including 3M, Cargill, Gillette,
Honeywell, Nike, Verizon, the National Association of Manufacturers,
the Pharmaceutical Research and Manufacturers Association. The CACP's
recommendations are also supported by major labor groups like the
International Brotherhood of Teamsters, the Service Employee
International Union, the American Federation of Music, and others.
\12\ While a number of Government Accountability Office reports and
testimony informed this Act, the most helpful include: Finding and
Fighting Fakes: Reviewing the Strategy Targeting Organized Piracy,
before the S. Comm. on Homeland Security and Government Affairs,
Subcomm. 109th Cong. (June 2005) (statement of Loren Yager, Director of
International Affairs and Trade, Government Accountability Office)
[hereinafter ``GAO June 2005 Testimony'']; Government Accountability
Office, Strategy for Targeting Organized Piracy (STOP) Requires Changes
for Long-term Success, Report to the Chairman, Committee on Government
Reform, House of Representatives (Nov. 2006) [hereinafter ``GAO
November 2006 Report'']; Pirating the American Dream: Intellectual
Property Theft's Impact on America's Place in the Global Economy and
Strategies for Improving Enforcement, before the S. Comm. on Banking,
Housing and Urban Affairs, Subcomm. on Security and International Trade
and Finance, 110th Cong. (Apr. 2007) (Statement of Loren Yager,
Director of International Affairs and Trade, Government Accountability
Office) [hereinafter ``GAO April 2007 Testimony'']; International
Piracy: The Challenges of Protecting Intellectual Property in the 21st
Century, before the H. Comm. on the Judiciary, Subcomm. on Courts, the
Internet, and Intellectual Property, 110th Cong. (Mar. 2007) (statement
of Loren Yager, Director of International Affairs and Trade, Government
Accountability Office)[hereinafter ``GAO October 2007 Testimony'']; GAO
March 2008 Report, supra note 3.
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In summary, this Act will: 1) enhance civil and criminal
penalties for intellectual property violations, to make
commercial scale IP theft less profitable and easier to
prosecute; 2) institutionalize key IP enforcement leadership
within the Executive Office of the President and provide a
mechanism by which the President can more effectively lead
coordination of Federal IP enforcement efforts; and 3) provide
greater resources for IP enforcement efforts, including
increased resources and enhanced focus for the effort to
investigate and prosecute domestic and international
intellectual property crimes. The bill has received letters of
support from key industries and associations, including the
Consumer Electronics Association, Digital Media Association,
Net Coalition, the Internet Commerce Coalition, Coalition for
Consumers' Pictures Rights, and the Printing Industries of
America. This is in addition to the support the bill has
already received from the Teamsters, Directors Guild of
America, SEIU, AFTRA, Unite Here, AFM, Laborers, OPEIU, the
Coalition Against Counterfeiting and Piracy, the Motor
Equipment Manufacturing Association, PhRMA, and NBC Universal.
ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAW
Title I makes a number of changes to copyright and
trademark law that will enhance the ability of intellectual
property rights holders to enforce their rights. Title I also
makes it easier for rights holders to secure judgments that
deter infringing activities and reduce the incentives available
to intellectual property thieves.
Under current law, registration of a copyright with the
Copyright Office is a prerequisite for a United States right
holder to seek statutory damages in a civil infringement
action. According to the Department of Justice (DOJ), effective
prosecution of criminal infringement of valuable works,
especially those that have just been released or that have not
yet been made available to the public, is sometimes hampered by
uncertainties regarding the provision of current law that
requires registration of U.S. works as a prerequisite of any
``action for infringement of the copyright.'' \13\ DOJ points
out that it isn't clear whether the registration requirement
for U.S. copyright holders has any effect on criminal
prosecutions undertaken by DOJ.\14\ This Act clarifies that
copyright registration is not a prerequisite for DOJ to
criminally prosecute copyright pirates.
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\13\ 17 U.S.C. Sec. 411(a).
\14\ Letter from the Office of the Assistant Attorney General, U.S.
Department of Justice, to Hon. Nancy Pelosi, Speaker, House of
Representatives, concerning a legislative proposal titled
``Intellectual Property Act of 2007,'' May 14, 2007, at 1.
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While copyright registration benefits the public, it was
never intended as a way for copyright pirates to evade
prosecution. Prosecution of copyright crimes serves the public
interest by punishing and deterring criminal activity. A
prosecutor's ability to serve this public interest should not
be hamstrung by the fact that a work has not yet been
registered. The lack of a registration does not make the
criminal activity any less egregious, especially in a case in
which the target of the infringement is an unreleased or just-
released work at the peak of its commercial value, or in which
numerous works, some of them unregistered, are being infringed
on the Internet. DOJ recommends, and the Committee agrees, that
current law should be amended to make clear that the
registration prerequisite affects civil actions only. The
Committee does not intend for this language, found in section
102 of the bill, to have any effect on the enforcement
authority of United States Customs and Border Protection under
sections 602 or 603 of Title 17 of the United States Code.
It has also been argued in litigation that a mistake in the
registration documents, such as checking the wrong box on the
registration form, renders a registration invalid and thus
forecloses the availability of statutory damages.\15\ To
prevent intellectual property thieves from exploiting this
potential loophole, the Act makes clear that a registration
containing inaccuracies will satisfy the registration
requirements of the Copyright Act unless the mistake was
knowingly made and the inaccuracy, if known, would have caused
the Register of Copyrights to refuse the registration. And in
cases where mistakes in a copyright registration are alleged,
courts will be required to seek the advice of the Register of
Copyrights as to whether the asserted mistake, if known at the
time of application, would have caused the Copyright Office to
refuse registration.
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\15\ See In re Napster, Inc., Copyright Litigation, 191 F. Supp. 2d
1087, 1099 (N.D. Cal. 2002).
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The Act contains a savings clause to protect and preserve
the rights and interests of any person with respect to claims,
including adverse claims, of authorship and ownership apart
from the jurisdictional and remedial provisions of sections 411
and 412, at any time, in any judicial or administrative forum,
and without any procedural or substantive limitation except as
set forth in other provisions of the Copyright Act.
Under current copyright law, the ability of the court to
order impoundment of evidence of infringement is restricted to
the infringing copies themselves and the means by which they
may be made, but does not extend to the records that document
the violation. This gap may provide copyright pirates who have
been sued a window of opportunity to destroy evidence. To
address this problem, the Act gives courts authority to also
impound records that document the manufacture, sale, or receipt
of things involved in a copyright violation, providing a tool
similar to that available for many years to trademark owners in
counterfeiting cases.
Experts point out that counterfeiters have developed a
``long value chain'' in their operations, thus limiting the
risk of each party being caught and the possible penalties if
they are apprehended. Although under current law contributory
trademark liability can be found against parties who
intentionally induce others to commit acts of counterfeiting,
or who intentionally provide goods or services to facilitate
the commission of acts of counterfeiting, with the intent that
the recipient of the goods or services would put them to use in
committing the violation, the damages to which those parties
are exposed may fall far short of deterrent levels. To remedy
this, and to take into account the realities of today's
counterfeiting environment, the Act directs courts to award
treble damages and attorney's fees against such knowing
participants in the value chain, just as is the case under
current law with direct infringers engaged in counterfeit
operations.
The level of statutory damages that can be assessed against
counterfeiters has not been adjusted since 1996. In the ensuing
12 years, the profits of counterfeiters and the volume of their
traffic has skyrocketed. The existing statutory damage levels
no longer serve as an adequate deterrent in this more lucrative
environment. Therefore, the Act doubles current statutory
damages for use of a counterfeit mark, raising the minimum to
from $500 to $1,000 and the maximum from to $100,000 to
$200,000 per mark, with willful counterfeiting activity subject
to a maximum statutory damage award of $2,000,000.
Lastly, to address reciprocity concerns, the Act explicitly
makes it a violation of the Lanham Act and Copyright Act to
export counterfeit or pirated goods from the United States, and
also clarifies that the willful importation of pirated goods
can constitute a criminal copyright offense.
ENHANCEMENTS TO CRIMINAL INTELLECTUAL PROPERTY LAW
Title II effectuates a number of enhancements to copyright
and trademark law that will facilitate criminal prosecution of
repeat copyright infringers, harmonize forfeiture laws related
to intellectual property offenses, and increase penalties for
counterfeiting violations that endanger public health and
safety.
Under current law, penalties for the repeat offense of
three major criminal copyright acts--infringement for
commercial advantage or private financial gain, infringement
for non-commercial purposes above a certain threshold, and
infringement of pre-release works over a publicly accessible
computer network--automatically subject the infringer to
enhanced penalties. For enhanced penalties to apply under
current law, however, the repeat offender must commit the same
offense twice. DOJ recommends, and the Committee agrees, that
if a person has been convicted for any one of these acts, a
second conviction for any of these acts should be considered a
repeat offense for purposes of enhanced damages.
Under current law, there are substantial variations among
the civil and criminal forfeiture laws for violations of
various criminal statutes prohibiting piracy and
counterfeiting, as well as with regard to restitution orders.
DOJ has recommended that this patchwork of provisions, enacted
at various times over the past three decades, all be harmonized
at the current standard adopted by Congress in 2006 with regard
to trafficking in counterfeit goods. This would increase the
consistency and predictability of the law, and would facilitate
seizure of the proceeds of counterfeiting and piracy, and the
tools used to carry out these crimes, in appropriate cases.
Thus, the Act amends the forfeiture provisions of 18 U.S.C.
Sec. Sec. 2318, 2319, 2319A, and 2319B, to bring them closer in
line with 18 U.S.C. Sec. 2320. The Act adds safeguards,
however, including in Chapter 46 of Title 18, to ensure that
civil forfeiture of property involved in the commission of the
offense is restricted to property owned or predominantly
controlled by the violator, a co-conspirator, or an aider and
abettor of the crime, and that the property has a substantial
connection to the offense.
The Act also directs the U.S. Sentencing Commission to
review the Sentencing Guidelines to consider whether the two-
level enhancement that currently applies to criminal
infringement involving manufacturing, importing, and uploading
of infringing items should be expanded to include exportation
of such items.
Lastly, to address the increasing dangers that counterfeit
goods pose to public health and safety, the Act increases
maximum penalties for trafficking in counterfeit goods where
the defendant knowingly or recklessly causes or attempts to
cause serious bodily injury or death.
ESTABLISH AND INSTITUTIONALIZE EFFECTIVE INTELLECTUAL PROPERTY
ENFORCEMENT LEADERSHIP AND COORDINATION MECHANISMS
The Administration has made a number of efforts to address
the threat of counterfeiting and piracy, which have led to
increases in intellectual property enforcement activity. These
increases, however, have not kept pace with the volume of
counterfeit and pirated goods appearing in the United States
and in other countries around the world. Thus, while
enforcement has been aggressively pursued, the effect on IP
crime has been insufficient to meet the challenges posed by IP
thieves.
In recent reports and testimony to Congress, GAO identified
a number of flaws in current Federal intellectual property
enforcement efforts. One of the most significant deficiencies
identified is the lack of permanent and effective leadership in
coordinating these efforts. Federal enforcement actions have
increased over the course of fiscal years 2001 through 2006,
but the key agencies have not taken important steps necessary
to assess their achievements. For example, most do not
systematically analyze their IP enforcement statistics to
inform management and resource allocation decisions, collect
data on their efforts to address IP crimes that affect public
health and safety, or establish IP-related performance measures
or targets to assess their achievements. Also, GAO has pointed
out, based on available information, that Customs and Border
Protection's enforcement of exclusion orders, which stop
certain IP-infringing goods from entering the country, has been
limited in part due to certain procedural weaknesses. Finally,
enforcement of intellectual property has not been a top
priority within the agencies and thus has not received adequate
resources.
Currently, there are programs to provide for interagency
strategic planning and implementation of a national strategy.
Many objective observers and participants, however, believe
these processes have not resulted in a cohesive plan or in
adequate assurances of accountability for implementation.
The challenges in coordinating Federal enforcement efforts
in support of intellectual property rights are considerable.
GAO has pointed out that eight different Federal agencies, and
several entities within these agencies, play some role in
supporting intellectual property rights. Among those agencies,
five play a key role in IP enforcement efforts. Each of these
bodies has its own mission and its own set of priorities; and
thus, the protection and enforcement of IP rights does not have
the same priority in each agency. GAO has classified government
efforts into either policy initiatives, training and technical
assistance programs, or law enforcement. Most agencies and
offices involved in IP-related issues participate in at least
two of these types of activities. Under current conditions, it
is not surprising that most of these agencies undertake
similar--and in some cases duplicative--activities and
programs. With so many entities dedicated to different
purposes, setting different priorities, and under different
direct leadership, coordinated cross-agency planning and
implementation is needed to optimize effectiveness and
efficiency. GAO has identified two main mechanisms for the
coordination of Federal intellectual property enforcement
efforts--the National Intellectual Property Law Enforcement
Coordination Council (NIPLECC) and the Strategy Targeting
Organized Piracy (``STOP'') initiative.\16\
---------------------------------------------------------------------------
\16\ Another interagency IP enforcement coordination mechanism
mentioned by GAO is the National Intellectual Property Rights
Coordination Center. The Center was created by the Executive Branch in
2000 to serve as an interagency mechanism to coordinate Federal
investigative efforts. The Center, however, has not achieved its
mission, and staff levels have decreased. Currently, only one agency
participates in the Center's activities, and the Center's focus is on
private sector outreach. Agencies have lacked a common understanding of
the Center's purpose and their role in its mission. GAO March 2008
Report, supra note 3, at 36-39.
---------------------------------------------------------------------------
NIPLECC was statutorily created in 1999 to coordinate
domestic and international intellectual property enforcement
activities. The Council's membership is dictated by statute,
and includes the Director of the United States Patent and
Trademark Office (USPTO), the Assistant Attorney General of the
Department of Justice's Criminal Division, the Undersecretary
of State for Economic and Agricultural Affairs, the Deputy
United States Trade Representative, the Commissioner of
Customs, and the Undersecretary of Commerce for International
Trade. The USPTO Director and the Assistant Attorney General
are designated co-chairs of the Council.
According to GAO, many in the intellectual property
community believe that NIPLECC has been unsuccessful in its
mission to serve as a facilitator of interagency coordination
for domestic and international IP enforcement. NIPLECC has
lacked consistent leadership for most of its existence and has
struggled to define its mission.\17\ In 2004, Congress passed
amendments to clarify its role and provide additional funding.
These amendments also created a Coordinator for International
Intellectual Property Enforcement to head the Council. Further
GAO analysis, however, concludes that NIPLECC continues to
suffer from inactivity and ineffectiveness.\18\
---------------------------------------------------------------------------
\17\ Id. at 35-37.
\18\ GAO June 2005 Testimony, supra note 12, at 11; GAO November
2006 Report, supra note 12, at 26; GAO April 2007 Report, supra note
12, at 10.
---------------------------------------------------------------------------
In contrast to NIPLECC, GAO has found that the STOP
initiative is perceived to have achieved a higher degree of
success in its multi-agency IP protection and enforcement
coordination mission.\19\ STOP was created in 2004 as a
presidential initiative led by the White House under the
auspices of the National Security Council. The STOP initiative
includes representatives of the Departments of Homeland
Security, Commerce, Justice, and State, the Office of the
United States Trade Representative (USTR), and the Food and
Drug Administration (FDA). The STOP initiative is widely viewed
as successful in increasing attention to intellectual property
issues. Government officials have found that STOP has been an
effective means of sharing ideas and supporting common goals.
The private sector has praised the STOP initiative for
improving communication between the business community and
government agencies on intellectual property issues. GAO,
however, has pointed out that the STOP initiative lacks several
elements of an effective national strategic plan. Most
importantly, GAO reports that the STOP initiative: 1) does not
have defined performance measures such as a clear articulation
of priorities or a process to monitor and report on the
progress of its efforts; 2) does not provide a clear
articulation of the resources needed to achieve its goals and
from where these resources will come; and 3) lacks permanence
and could cease existence with the end of the current
Administration in January 2009.\20\
---------------------------------------------------------------------------
\19\ GAO April 2007 Testimony, supra note 12, at 9.
\20\ Id. at 14-15. GAO did note that in recent years NIPLECC has
provided information concerning intellectual property enforcement
efforts taken under the STOP initiative in its annual reports, but this
exercise is merely a catalogue of activities and lacks any real
evaluation of their effectiveness.
---------------------------------------------------------------------------
To address the need for permanent and effective leadership
to prioritize and coordinate United States intellectual
property enforcement efforts across agencies, Title III
establishes an Intellectual Property Enforcement Representative
(IPER) within the Executive Office of the President. The IPER's
directive is to coordinate with all eight Federal agencies, and
in some instances multiple entities within an agency. By
placing the IPER in the Executive Office of the President, it
is envisioned that the IPER will have the influence and
credibility to serve as an effective coordinator of
intellectual property enforcement efforts. The IPER will be a
principal advisor to and a spokesperson for the President
concerning IP enforcement issues. The IPER will also be
responsible for advising Congress on the IP enforcement
challenges the country faces, as well as reporting to Congress
on the progress made towards implementing the Joint Strategic
Plan (JSP).
It is envisioned that the JSP will serve as the framework
for coordinating and assessing Federal efforts to combat piracy
and counterfeiting. The JSP will include detailed information
on the threats of piracy and counterfeiting to the United
States economy and to public health and safety; outline the
various roles and responsibilities that government agencies
will have in tackling intellectual property enforcement
efforts; provide priorities and goals that will guide IP
enforcement efforts; provide an accounting of the resources
that will be needed to carry out the plan; and provide
performance measures to gauge the success of the JSP in curbing
counterfeiting and piracy.
Title III also establishes an Intellectual Property
Enforcement Advisory Committee (Advisory Committee) composed
of, at least, representatives of the Departments of Homeland
Security, Justice and State, the USPTO, the USTR, the Food and
Drug Administration, the United States International Trade
Commission, and the United States Copyright Office. It is
envisioned that each member of the Advisory Committee will
participate in the development of the JSP, which shall serve as
the chief mechanism by which coordination of government efforts
to combat piracy and counterfeiting will occur. The JSP is
intended to be more than individual agency and department
documents that are compiled by the IPER.
The primary function of the IPER is to produce a strategic
plan for the United States in combating counterfeiting and
piracy. In the rare event that there is a substantial dispute
that can not be resolved among members of the Advisory
Committee, it is envisioned that the IPER, as chair of the
Advisory Committee, will seek resolution of the dispute by the
President. The Committee believes that the need for
Presidential resolution will be a rare occurrence, and will be
triggered only when there is substantial disagreement among the
Advisory Committee members.
Finally, although the IPER is expected to make
recommendations to agencies for implementation of the JSP, it
is not intended that the IPER have operational or other direct
control over the everyday activities of United States
intellectual property protection, enforcement actions, or other
efforts. Activities the IPER is specifically prohibited from
conducting include those directly affecting prosecutorial
decisions. Additionally, the IPER's critical coordination and
planning role should concentrate on the enforcement of IP laws
and not on the development of underlying substantive laws.
While the IPER is empowered to issue housekeeping regulations
relevant to the IPER's activities, this legislation does not
authorize the IPER to, for instance, undertake rule-making
proceedings on matters of substantive intellectual property.
IMPROVING INTERNATIONAL INTELLECTUAL PROPERTY
ENFORCEMENT EFFORTS
Federal efforts to protect and enforce intellectual
property rights domestically and internationally are crucial to
preventing billions of dollars in losses to the United States
economy. Although improving, IP protection in many parts of the
world is inadequate. According to the Organization for Economic
Cooperation and Development, governments and private companies
report a recent expansion in IP crimes, noting that organized
criminal networks are increasingly moving into this domain due
to high profit potential, ease of market entry, and relatively
low risk.\21\
---------------------------------------------------------------------------
\21\ Organization for Economic Cooperation and Development, The
Economic Impact of Counterfeiting and Piracy, Executive Summary (2007).
---------------------------------------------------------------------------
To counter this growing threat, Federal agencies and
members of NIPLECC report they have taken steps to strengthen
IP laws and enforcement globally. They assert that they have
put IP protection and enforcement at the forefront of
multilateral and bilateral relationships, have built effective
global IP training and capacity-building programs, and have
placed IP experts in American embassies overseas.
In October 2007, the Subcommittee on Courts, the Internet,
and Intellectual Property held a hearing on international
piracy at which GAO and others testified on IP risks and
enforcement challenges. In December 2007, the Subcommittee held
a hearing on H.R. 4279. These hearings demonstrated that while
there has been an increased Federal effort to enforce IP
rights, our domestic efforts alone will not effectively protect
American businesses, our markets, or the U.S. economy, unless
there is a corresponding effort overseas.
Title IV provides additional intellectual property attaches
to promote stronger and more effective enforcement of
intellectual property laws in key overseas markets. Currently,
the Department of Commerce has placed eight attaches in six
United States embassies or diplomatic missions around the
world. This Act would expand that program by authorizing ten
additional intellectual property attaches. The intellectual
property attache program will provide U.S. businesses
intellectual property-related assistance in securing and
protecting their rights in an expanded number of countries than
the current Department of Commerce program provides.
INCREASED RESOURCES FOR INTELLECTUAL PROPERTY-RELATED INVESTIGATIONS
AND PROSECUTIONS
Increased investigation and prosecution activities at the
Department of Justice in the last few years have yielded some
successes. Specifically, the Department filed 217 intellectual
property cases in FY 2007, representing a 7% increase over
cases reported in FY 2006 (204), and a 33% increase over cases
reported in FY 2005 (169). Also in FY 2007, 287 defendants were
sentenced for intellectual property crimes, representing a 35%
increase over FY 2006 (213) and a 92% increase over FY 2005
(149).\22\
---------------------------------------------------------------------------
\22\ H.R. 4279, The Prioritizing Resources and Organization for
Intellectual Property Act of 2007, before the H. Comm. on the
Judiciary, Subcomm. on Courts, the Internet, and Intellectual Property,
110th Cong. 3 (Dec. 2007) (statement of Sigal P. Mandelker, Deputy
Assistant Attorney General, Criminal Division, Department of Justice).
---------------------------------------------------------------------------
Notwithstanding the increase in efforts by the Department
of Justice to combat intellectual property crimes, there is a
widespread perception among the stakeholders that additional
resources and personnel are required to investigate, enforce,
and prosecute infringers to the level that is needed to serve
as a strong deterrent to future acts of piracy and
counterfeiting. The data bears out that perception. Fewer than
one in 300 Federal prosecutions, or less than one half of 1
percent of DOJ cases in FY 2006, were related to IP
enforcement. This low number is not due to a lack of criminal
activity to pursue. A recent study, conducted by the Gallup
Organization at the request of the U.S. Chamber of Commerce,
demonstrated the widespread availability of pirated material to
the extent that 25% of the population of Los Angeles County
admitted to knowingly purchasing, copying, or downloading
illegal goods. The number of IP crime prosecutions is
inadequate given the effect that such crimes have on this
country's businesses, jobs, and overall economic well-
being.\23\
---------------------------------------------------------------------------
\23\ The International Intellectual Property Law Enforcement
Coordinators act as liaisons with foreign law enforcement agencies and
officials to assist U.S. right holders with enforcement of their
intellectual property rights abroad.
---------------------------------------------------------------------------
To ensure DOJ's IP enforcement efforts keep better pace
with the level of intellectual property theft domestically and
abroad, this legislation provides DOJ with more resources to
combat IP crimes. Currently, much of DOJ's intellectual
property enforcement activities are carried out by Computer
Hacking and Intellectual Property (CHIP) units assigned to
various United States Attorney Offices. Title V will provide at
least two additional FBI agents and one additional Assistant
United States Attorney to each CHIP unit. Title V also
authorizes the Attorney General to deploy an additional five
International Intellectual Property Law Enforcement
Coordinators to facilitate international IP criminal
investigations and provide increased training and technical
assistance to foreign law enforcement personnel.
Title V also provides grants to local and State law
enforcement for activities directed at combating intellectual
property violations. Encouraging increased cooperation and
communication across jurisdictions and agencies is a primary
goal of this legislation and the Committee believes that active
participation of State and local authorities is critical to
meaningfully address piracy and counterfeiting. Day-to-day
piracy and counterfeiting enforcement operations often fall to
State and local entities, thus the Federal Government should
provide monetary assistance, especially in light of the fact
that a local department's hierarchy of public safety priorities
typically dictates that piracy and counterfeiting crimes do not
receive the attention or resources they deserve. Moreover,
counterfeiting investigations and operations are typically
lengthy, trigger overtime for the participating officers, and
require uncommon expenditures (such as evidence storage for
vast quantities of confiscated contraband), cutting into a
State or local agency's already lean budget. For these reasons,
this legislation establishes a new grant program in the
Department of Justice's Office of Justice Programs to assist
State and local law enforcement entities engaged in anti-piracy
and counterfeiting crime prevention, investigation,
enforcement, or prosecution.
Lastly, to ensure that DOJ places a greater priority on
investigating and prosecuting intellectual property crimes,
this legislation reorganizes IP enforcement responsibilities
within the Department. In addition to CHIPS units, DOJ's
intellectual property enforcement efforts are also carried out
by the Computer Crime and Intellectual Property Section at DOJ
headquarters in Washington, D.C. Instead of combining
intellectual property with computer crime, Title V establishes
a separate division for intellectual property enforcement
within DOJ headquarters. This division will be headed by an
Intellectual Property Enforcement Officer who reports directly
to the Deputy Attorney General, and who will be responsible for
coordinating all DOJ efforts related to IP enforcement.
Many of these changes, particularly the reorganization of
resources within DOJ, will increase the importance that DOJ
places on intellectual property enforcement. In addition, these
changes address GAO's concerns about a lack of sufficient
institutionalized leadership and are consistent with GAO's
recommendations as well as those provided by the CACP.
In developing the above changes, particularly to the
organizational structure of intellectual property enforcement
personnel, input from DOJ was actively sought. DOJ's responses
have not been particularly substantive or responsive to the
Committee's goal of increasing the effectiveness of DOJ's
current IP enforcement mechanisms. The Committee believes that
substantial changes are necessary to permanently elevate the
priority of IP enforcement within DOJ.
ECONOMIC BENEFITS OF INCREASED INTELLECTUAL PROPERTY ENFORCEMENT
While the economic cost and the threat to American health
and safety caused by counterfeiting and piracy are well
documented, from a fiscal standpoint it is also important to
quantify the benefits that can be expected from increased
efforts to enforce intellectual property rights. A recent study
conducted by Dr. Laura Tyson, with the respected economic firm
of LECG, LLC, provides a cost-benefit analysis of the CACP
initiative, from which many provisions of this Act were
derived. The report conservatively estimates the expected
budgetary costs of increasing enforcement on the high side of
the likely range, and estimates benefits of the initiative's
implementation on the low side of the likely range.\24\
---------------------------------------------------------------------------
\24\ Laura Tyson, Economic Analysis of the Proposed CACP Anti-
Counterfeiting and Piracy Initiative, prepared for the Coalition
Against Counterfeiting and Piracy (2007).
---------------------------------------------------------------------------
The report reaches the following conclusions about the
costs and benefits of implementing the CACP initiative:
[T]he CACP initiative is a sound investment for the
Federal Government. Even under very conservative
assumptions, it would produce sizeable reductions in
business losses caused by piracy and counterfeiting, it
would generate meaningful increases in output and
employment levels in the US economy, and it would
increase Federal Government revenues by substantially
more than its costs.
For every dollar spent prudently on the CACP
initiative, Federal tax revenues would increase by at
least $2.9 and by as much as $9.7 with an intermediate
range of $4.9 to $5.7. These Federal tax revenue
increases are due to the increase in U.S. output and
employment that would occur as a result of implementing
the CACP initiative. For every dollar spent on the CACP
initiative, U.S. output would increase by at least $38
and would increase by as much as $127 with an
intermediate range of $64 to $75.3. The increase in
output due to implementing the CACP program will result
in the creation of between 174,000 and 348,000 new jobs
during the third year. Therefore, the return to the
Federal Government and the economy of investing in the
CACP initiative is very high. In addition, State and
local governments can expect to receive incremental
revenues between $1.25 billion and $1.50 billion, in
present value terms, over 3 years, if the CACP
initiative is implemented.
Over time, by enabling the IP-intensive industries to
earn a higher return, the CACP measures would encourage
more investment and foster faster U.S. economic growth.
In addition to these quantifiable benefits, enactment
of the CACP initiative would increase the protection of
American consumers against the health and safety risks
of counterfeited and pirated goods. Finally, more
effective policies to combat piracy and counterfeiting
are an important complement to policies to combat
organized crime and terrorism and to enhance national
security.\25\
---------------------------------------------------------------------------
\25\ Id. at v-vi.
The Committee believes that enactment of H.R. 4279 will produce
similar benefits to the United States economy.
Hearings
The Committee's Subcommittee on Courts, the Internet, and
Intellectual Property held 1 day of hearings on H.R. 4279 on
December 13, 2007. Testimony was received from Sigal P.
Mandelker, Deputy Assistant Attorney General, Criminal
Division, United States Department of Justice; James P. Hoffa,
General President, International Brotherhood of Teamsters; Gigi
B. Sohn, President and Co-Founder, Public Knowledge; and Rick
Cotton, Executive Vice President and General Counsel, NBC
Universal, New York, N.Y.
In addition to this hearing, the Subcommittee on Courts,
the Internet, and Intellectual Property held 1 day of hearings
on the subject of International Piracy: The Challenges of
Protecting Intellectual Property in the 21st Century, on
October 18, 2007. Testimony was received from Victoria A.
Espinel, Assistant United States Trade Representative for
Intellectual Property & Innovation, Office of the United States
Trade Representative; Eric H. Smith, President, International
Intellectual Property Alliance; Loren Yager, Director of
International Affairs and Trade, United States General
Accounting Office; Mark MacCarthy, Senior Vice President for
Global Public Policy, Visa Incorporated.
Committee Consideration
On March 6, 2008, the Subcommittee on Courts, the Internet,
and Intellectual Property met in open session and ordered the
bill H.R. 4279 favorably reported, as amended, by voice vote, a
quorum being present. On April 30, 2007, the Committee met in
open session and ordered the bill H.R. 4279 favorably reported,
as amended, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 4279.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4279, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 5, 2008.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4279, the
Prioritizing Resources and Organization for Intellectual
Property Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 4279--Prioritizing Resources and Organization for Intellectual
Property Act of 2008.
SUMMARY
H.R. 4279 would authorize additional resources for the
Executive Office of the President, the Patent and Trademark
Office (PTO), and the Department of Justice (DOJ) to enforce
intellectual property laws and to reduce counterfeiting and
piracy of protected intellectual property. CBO estimates that
implementing the bill would cost $435 million over the 2009-
2013 period, subject to the appropriation of the necessary
amounts. The legislation could affect direct spending and
revenues, but we estimate that any such effects would be less
than $500,000 annually.
H.R. 4279 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 4279 is shown in the
following table. The costs of this legislation fall within
budget functions 750 (administration of justice), 370 (commerce
and housing credit), and 800 (general government).
By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2009 2010 2011 2012 2013
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Title III: Executive Office of the
President Enforcement Activities
Estimated Authorization Level 10 15 20 25 30
Estimated Outlays 9 14 19 24 29
Title IV: PTO Enforcement Activities
Estimated Authorization Level 12 18 18 20 20
Estimated Outlays 10 17 18 19 20
Title V: DOJ Enforcement Activities
Estimated Authorization Level 62 67 72 72 47
Estimated Outlays 22 43 58 66 67
Total Changes
Estimated Authorization Level 84 100 110 117 97
Estimated Outlays 41 74 95 109 116
------------------------------------------------------------------------
1Note: PTO = Patent and Trademark Office; DOJ = Department of Justice.
BASIS OF ESTIMATE
For this estimate CBO assumes that the bill would be
enacted by the beginning of fiscal year 2009.
Spending Subject to Appropriation
CBO estimates that implementing the bill would cost $435
million over the 2009-2013 period, subject to the appropriation
of the necessary amounts. Those amounts would be used to
enhance activities to enforce intellectual property rights by
the Executive Office of the President, PTO, and DOJ.
Title III: Executive Office of the President Enforcement
Activities. Title III would establish an Office of the United
States Intellectual Property Enforcement Representative within
the Executive Office of the President. The representative would
be appointed by the President and confirmed by the Senate to
advise the President and report to the Congress. The
representative would develop, coordinate, and provide
recommendations on governmentwide policies for enforcing
intellectual property rights, including the protection of
copyrights, patents, and trademarks, both within the United
States and abroad. In addition, the representative would chair
an interagency committee and be primarily responsible for
developing and implementing a plan for eliminating
counterfeiting and piracy of intellectual property.
Based on the costs of similar offices and programs, CBO
estimates that the new office would need about $30 million a
year to carry out its responsibilities under title III. CBO
expects that the office would steadily expand its staff over
the next five years to reach that level of effort. We estimate
that implementing title III would cost $95 million over the
2009-2013 period, assuming appropriation of the necessary
amounts.
Title IV: PTO Enforcement Activities. Title IV would
authorize the Department of Commerce to appoint at least 10
intellectual property attaches to serve in United States
embassies or other diplomatic missions. The attaches would work
with foreign governments to enforce intellectual property laws
generally and to reduce counterfeiting and piracy of protected
intellectual property. The Patent and Trademark Office (PTO)
would be responsible for training the attaches and providing
managerial and administrative support.
The bill would authorize the appropriation of such sums as
necessary for both the intellectual property attaches
authorized by title IV as well as other Department of Commerce
personnel already serving as intellectual property attaches.
Currently, eight attaches are working in Brazil, China, Egypt,
India, Russia, and Thailand at a cost of about $8 million a
year. Based on that cost, CBO estimates that implementing title
IV of the bill would cost $84 million over the 2009-2013
period, assuming appropriation of the necessary amounts.
Title V: DOJ Enforcement Activities. Title V would
reorganize DOJ's activities involving enforcement of
intellectual property rights, authorize additional resources
for attorneys and the Federal Bureau of Investigation (FBI),
and authorize state grants to combat cyber-crime (crime related
to computer and Internet activities). CBO estimates that
implementing title V would cost $256 million over the 2009-2013
period, subject to the appropriation of the necessary amounts.
DOJ Intellectual Property Enforcement Division and FBI
Unit. Title V would create an Intellectual Property Enforcement
Division within DOJ. Existing DOJ activities relating to the
criminal enforcement of intellectual property rights and trade
secrets would be transferred to the new division. Under the
bill, the head of the division would be the Intellectual
Property Enforcement Officer, who would be responsible for
coordinating efforts at DOJ for combating counterfeiting and
piracy of intellectual property and serving as the DOJ liaison
to the Office of the United States Intellectual Property
Representative. Because most of the activities of the new
division are being performed under current law, CBO estimates
that the cost for creating this new division would be less than
$500,000 a year over the 2009-2013 period, subject to the
availability of appropriated funds. Most of that amount would
be for hiring the Enforcement Officer and for other
administrative costs.
Title V also would create an operational unit of not less
than five agents at the FBI headquarters to work with the new
DOJ division to coordinate complex, multidistrict, and
international intellectual property cases. CBO estimates that
hiring five new agents would cost about $5 million over the
2009-2013 period.
Expansion of Computer Hacking and Intellectual Property
(CHIP) Units. The bill would create 10 new CHIP units in
different Federal judicial districts in addition to the 25
existing units. CHIP units, currently staffed by approximately
80 Assistant United States Attorneys (AUSAs) nationwide, are
located in regions that experience a high incidence of
intellectual property and cyber-crime. Enforcement activities
are supported by FBI agents. CBO estimates that creating the
new CHIP units would involve hiring 40 new AUSAs, 20 new FBI
agents, and 10 additional support staff.
The bill also would expand the size of the existing CHIP
units by adding at least 25 AUSAs and 50 supporting FBI agents.
Based on personnel cost information provided by DOJ, CBO
estimates that the cost to create and expand CHIP operations
would total $77 million over the 2009-2013 period.
State Grants for Cyber-Crime. Title V would authorize the
appropriation of $25 million annually over the 2009-2013 period
for DOJ to make grants to states for programs to combat
computer crime. Title V also would authorize the appropriation
of $25 million annually over the 2009-2012 period for grants to
state and local governments for programs to combat intellectual
property crimes. Assuming appropriation of the authorized
amounts, CBO estimates that implementing those provisions would
cost $162 million over the 2009-2013 period.
International Intellectual Property Law Enforcement
Coordinators. The bill would require the deployment of five
additional coordinators in addition to those serving under
current law. The coordinators manage U.S. law enforcement
activities to combat intellectual property crimes in foreign
countries. Based on information provided by DOJ, increasing the
number of coordinators would cost $12 million over the 2009-
2013 period.
Direct Spending and Revenues
H.R. 4279 would increase civil damages and penalties for
certain intellectual property offenses. Criminal fines are
recorded as revenues, deposited into the Crime Victims Fund,
and later spent. In addition, proceeds from forfeited cash and
the sale of assets are recorded as revenues, deposited into the
Assets Forfeiture Fund, and spent mostly in the same year.
Thus, enacting H.R. 4279 could increase revenues and direct
spending; however, CBO expects that any such impact would not
be significant.
Title III would allow the Office of the United States
Intellectual Property Enforcement Representative to accept and
use gifts, and therefore, the legislation could increase
revenues and direct spending. However, CBO estimates that any
revenues from contributions and subsequent direct spending
would be less than $500,000 annually.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 4279 contains no intergovernmental or private-sector
mandates as defined in UMRA. The bill would benefit state and
local law enforcement agencies by authorizing grants for
enforcement and prosecutorial activities.
ESTIMATE PREPARED BY:
Federal Costs: Leigh Angres, Mark Grabowicz, Susan Willie, and
Matthew Pickford
Impact on State, Local, and Tribal Governments: Melissa Merrell
Impact on the Private Sector: Paige Piper/Bach
ESTIMATE APPROVED BY:
Theresa Gullo
Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states, pursuant to clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, H.R. 4279
will strengthen civil and criminal intellectual property laws
to better address commercial-scale intellectual property theft,
strengthen the organization of Federal intellectual property
enforcement efforts, and provide greater resources to law
enforcement agencies so that they can investigate and prosecute
more intellectual property crimes.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clauses 3 and 8 of
the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 4279 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
Sec. 1. Short Title; Table of Contents. Section 1 sets
forth the short title of the bill as the ``Prioritizing
Resources and Organization for Intellectual Property Act of
2008.'' It also includes a table of contents for the bill.
Sec. 2. Reference. Section 2 clarifies that any reference
in the bill to the ``Trademark Act of 1946'' is intended to
refer to ``An Act to provide for the registration of trademarks
used in commerce, to carry out the provisions of certain
international conventions, and for other purposes,'' approved
July 5, 1946.\26\
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\26\ 15 U.S.C. Sec. Sec. 1051 et seq. (2007).
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Sec. 3. Definition. Section 3 sets out for United States
person as used in this Act.
TITLE I. ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAWS
Sec. 101. Registration of Claim. Section 101 amends 17
U.S.C. Sec. 410, which sets forth the duties of the Register of
Copyrights in registering and issuing to an applicant a
certificate of registration. Under current law, section 410(b)
requires the Register to refuse registration if the material
deposited does not constitute copyrighted material or if the
claim is invalid for any other reason. Section 101 of the bill
amends this provision by adding a new subsection (c), to
provide that a certificate of registration shall satisfy the
registration requirements regardless of any inaccurate
information on the registration application, unless the
incorrect information was included on the application with the
knowledge that it was incorrect, and unless the inaccurate
information, if known, would have caused the Register of
Copyrights to refuse registration. In any case in which
inaccuracies in the application are alleged, the legislation
requires the court to request the Register of Copyrights to
advise the court as to whether the inaccuracy would have
resulted in a refusal of the registration application.
The savings clause stating that ``Nothing in this section
shall affect any rights, obligations, or requirements of a
person related to information contained in a registration
certificate except for the institution of and remedies for
infringement actions under Sec. Sec. 411 and 412 of Title 17 of
the United States Code'' is intended, in part, to protect and
preserve the rights and interests of any person with respect to
claims, including adverse claims, of authorship and ownership
apart from the jurisdictional and remedial provisions of
sections 411 and 412, at any time, in any judicial or
administrative forum, and without any procedural or substantive
limitation except as set forth in other provisions of the
Copyright Act.
Sec. 102. Registration and Infringement Actions. Section
102 of the bill amends 17 U.S.C. Sec. 411, which provides that
``[n]o action for infringement of the copyright in any United
States work shall be instituted until registration of the
copyright claim has been made.'' Section 102 amends this
provision to clarify that this rule only applies to civil
infringement actions and not to criminal prosecutions. This
provision is consistent with established DOJ policy.\27\ It
makes no change in existing practices of how and when
prosecutors prove the existence of a copyright in an
infringement case, and it does not affect any pending cases.
The Committee does not believe that this clarification will
exacerbate the problem of orphan works, nor will it reduce the
incentives for creators and authors to register their works. A
copyright holder would not give up his or her ability to file a
civil suit, collect statutory damages, and get attorney's fees
on the hope that a prosecutor will prosecute an infringer of
the copyrighted work. On the other hand, some small, individual
copyright holders, such as photographers or journalists who
often do not have sufficient resources to register their works
or to pursue expensive litigation, would benefit from this
change because it clarifies that DOJ is still able to prosecute
the violation in these circumstances. Section 102 does not have
any effect on the enforcement authority of United States
Customs and Border Protection under sections 602 or 603 of
title 17 of the United States Code.
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\27\ See Computer Crime and Intellectual Property Section, U.S.
Dept. Of Justice, Prosecuting Intellectual Property Crime Sec. II.B.1.d
(3d ed. 2006).
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Sec. 103. Civil Remedies for Infringement. Section 103 of
the bill amends 17 U.S.C. Sec. 503(a) to authorize a court to
order the impounding of records documenting manufacture, sale,
or receipt of things involved in infringing activity. This
section also directs the court to enter a protective order to
provide appropriate procedures to assure that confidential
information contained in the records is not improperly
disclosed. A similar provision exists in the Lanham Act, which
authorizes a court to issue an ex parte order for the seizure
not only of counterfeit goods and marks and the means of making
them, but also of ``records documenting the manufacture, sale
or receipt of things involved in such violation.'' \28\ Since
copyright pirates are just as likely to destroy evidence as
trademark counterfeiters (indeed, it is not uncommon for the
same violator to be engaged in both activities), it is
appropriate to update the list of items subject to impoundment
under the Copyright Act.
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\28\ 15 U.S.C. Sec. 1116(d)(1)(A) (2007).
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Sec. 104. Treble Damages in Counterfeiting Cases. Section
104 amends 15 U.S.C. Sec. 1117 to direct courts to award treble
damages and attorney's fees, absent extenuating circumstances,
when someone is found to have intentionally induced another to
engage in an act that violates the anti-counterfeiting
prohibitions of the Lanham Act or to have supplied goods or
services necessary to the commission of such a violation of the
Lanham Act, with the intent that the recipient of the goods or
services would put the goods or services to use in committing
the violation. Under section 1117 as amended, proof of intent
is required only for the mandatory imposition of treble damages
(and attorney's fees) on a party contributing to
counterfeiting. Section 104 does not change the standards the
courts have applied to determine liability for contributory
trademark infringement. Nor would it restrict in any way the
courts' existing discretion, under section 35(a) of the Lanham
Act, to impose treble damages in any case involving
infringement of a registered mark, or a false designation of
origin in violation of section 43(a).
Sec. 105. Statutory Damages in Counterfeiting Cases.
Section 105 increases statutory damages in counterfeiting
cases, by raising the minimum award from $500 to $1000, and the
maximum award from $100,000 to $200,000 for use of a
counterfeit mark, and raises the maximum from $1,000,000 to
$2,000,000 for willful use of a counterfeit mark.
Sec. 106. Exportation of Goods Bearing Infringing Marks.
Section 106 amends the Lanham Act to provide that exportation
of counterfeit merchandise is in violation of the law, similar
to importation under current law.
Sec. 107. Importation and Exportation. Section 107 amends
17 U.S.C. Sec. 602, which currently only addresses infringing
importations, to specify that exportation of infringing copies
is also prohibited and considered an infringement of the
exclusive right to distribute copies or phonorecords to the
public. This section also makes importation and exportation of
infringing copies a criminal copyright violation, prosecutable
under 17 U.S.C. Sec. 506, and makes conforming changes to
section 602(b). The language used in section 107 to describe
the goods whose importation or exportation may attract criminal
liability--``where the making of copies or phonorecords would
have constituted an infringement of copyright if this title had
been applicable''--was chosen to conform to current language
already in section 602(b). Section 107 is not intended to
alter, amend, or otherwise change current law, regulation, or
practice relating to the manufacture, importation, exportation,
or distribution of genuine products, made under authority of
the United States intellectual property rights holder or its
designee.
TITLE II. ENHANCEMENTS TO CRIMINAL INTELLECTUAL
PROPERTY LAWS
Sec. 201. Criminal Infringement of a Copyright. Section 201
addresses repeat offender penalties for the three major
criminal acts contained in the criminal copyright statute:
infringement for commercial advantage or private financial
gain; infringement for non-commercial purposes above a certain
threshold; and infringement of pre-release works over a
publicly-accessible computer network. Currently, to be a repeat
offender, an individual must be convicted of committing the
same criminal act twice. If an individual commits an act of
infringement for commercial advantage or private financial gain
first, and then releases a pre-release work over a computer
network, and was convicted of felony criminal copyright
infringement on both occasions, the individual currently would
not be considered for repeat offender penalties. This section
amends 18 U.S.C. Sec. 2319 to allow the felony violations to be
interchangeable for repeat offender enhanced penalties.
Sec. 202. Harmonization of Forfeiture Procedures for
Intellectual Property Offenses. Section 202 harmonizes all
forfeiture and restitution laws for intellectual property
offenses by amending 18 U.S.C. Sec. Sec. 2318, 2319, 2319A,
2319B to bring these provisions substantially in line with 18
U.S.C. Sec. 2320, which was enacted into law last year. The new
provisions contain additional safeguards, such as the
requirement that property involved in the commission of an
offense be owned or predominantly controlled by the violator, a
co- conspirator, or an aider and abettor of the violation in
order to be seized under the civil forfeiture provisions. The
definition of aiding and abetting is taken from Central Bank of
Denver, NA. v. First Interstate Bank of Denver, N.A.\29\
Furthermore, such property is not subject to seizure unless a
substantial connection between the property and the offense is
proven. Use by a violator (or co-conspirator or aider or
abetter) of commercially valuable digital communications or e-
commerce services for, e.g., electronic mail or data storage,
absent extraordinary circumstances, would not constitute
predominant control of the servers and similar facilities used
to provide the services. If, however, a computer were used by a
violator (or co-conspirator or aider or abetter) primarily to
store data used to further the infringement, the violator could
be held to have substantially controlled the property and the
computer would be subject to forfeiture. Another safeguard
contained in this Act is the requirement that, for seizure
under a criminal facilitation theory, the property be used to
substantially facilitate the crime.
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\29\ 511 U.S. 164 (1994).
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Sec. 203. Directive to United States Sentencing Commission.
Section 203 directs the U.S. Sentencing Commission to review
the Sentencing Guidelines to consider whether the two-level
enhancement that already applies under 2B5.3 of the Guidelines
to criminal infringement that involves manufacturing,
importing, and uploading of infringing items should be expanded
to also include exporting such items.
Sec. 204. Trafficking in Counterfeit Goods or Services.
Section 204 provides enhanced maximum statutory penalties for
counterfeiting offenses that endanger public health and safety.
It increases maximum penalties for 18 U.S.C. Sec. 2320 offenses
from 10 years imprisonment to 20 years where the defendant
knowingly or recklessly causes or attempts to cause serious
bodily injury. It increases the maximum penalty to life
imprisonment where the defendant knowingly or recklessly causes
or attempts to cause death.
TITLE III. COORDINATION AND STRATEGIC PLANNING OF
FEDERAL EFFORT AGAINST COUNTERFEITING AND PIRACY
Sec. 301. Office of the United States Intellectual Property
Enforcement Representative. Section 301 establishes within the
Executive Office of the President, the Office of the United
States Intellectual Property Enforcement Representative and the
position of the United States Intellectual Property Enforcement
Representative (IPER). The IPER is appointed by the President
of the United States with the advice and consent of the Senate.
The IPER will serve as a principal advisor to the President on
domestic and international intellectual property enforcement
policy and will report and provide advice to the President and
to Congress. In order to carry out these efforts, the IPER will
chair an interagency Intellectual Property Enforcement Advisory
Committee (``Advisory Committee''), formed pursuant to this
section, which includes senior representatives from every
Federal department and agency involved in the protection and
enforcement of intellectual property rights. The Advisory
Committee, under the guidance of the IPER, develops the Joint
Strategic Plan (JSP). The Advisory Committee is specifically
exempted from the Federal Advisory Committee Act.
Sec. 302. Definition. Section 302 defines intellectual
property enforcement as relating to the enforcement of laws
protecting copyrights, patents, trademarks, and other forms of
intellectual property and trade secrets, both within the United
States and abroad.
Sec. 321. Joint Strategic Plan. Section 321 specifies the
objectives and content of the JSP against counterfeiting and
piracy that shall be developed by the interagency Advisory
Committee, under the guidance of the IPER.
Sec. 322. Reporting. Section 322 requires the Office of the
United States Intellectual Property Enforcement Representative
to submit an annual report to the President and to the House
and Senate Committees on the Judiciary regarding the activities
of the Office during the preceding fiscal year, and to also
disseminate that report to the public. The report will provide
progress updates on the implementation of the JSP, including
the manner in which the relevant departments and agencies of
the U.S. government are working together and sharing
information toward advancing the recommendations, goals, and
priorities contained within the JSP. This section also provides
for the IPER to provide recommendations for the consolidation
of Federal intellectual property activities to prevent
duplicative efforts and to ensure maximum efficiency and
effectiveness of governments efforts.
Sec. 323. Savings and Repeals. Section 323 abolishes
NIPLECC, which is superseded by the structure created by this
Act, and preserves the existing authority of the agencies in
areas such as criminal investigation and prosecution,
administrative enforcement at U.S. borders, and international
trade. The purpose of this section is to ensure cross-agency
cooperation, consolidation, and implementation with regard to
enforcement of the laws concerning intellectual property laws.
Sec. 324. Authorization of Appropriations. Section 324
authorizes the appropriation of such funds as may be necessary
to carry out title III of the bill. It also contains a
requirement that the United States Intellectual Property
Enforcement Representative submit a proposed budget annually
for the projected amount of funds for the succeeding fiscal
year.
TITLE IV. INTERNATIONAL ENFORCEMENT AND COORDINATION
Sec. 401. Intellectual Property Attaches. Section 401
directs the Undersecretary of Commerce for Intellectual
Property and the Director of the United Stated Patent and
Trademark Office, in consultation with the Director General of
the U.S. Foreign Commercial Service, to appoint, within the
next 2 years, ten intellectual property attaches to serve in
U.S. embassies. These personnel are intended to be in addition
to persons already serving in a similar capacity as the
intellectual property attaches as of the date of enactment.
Sec. 402. Duties and Responsibilities of Intellectual
Property Attaches. Section 402 specifies the duties and
responsibilities of the intellectual property attaches.
Specifically, the attaches are responsible for promoting
cooperation with foreign governments in enforcement of IP laws;
assisting U.S. persons in efforts to combat counterfeiting and
piracy in the host countries; chairing IP task forces;
coordinating with embassies or missions of other countries in
information sharing and other forms of cooperation; engaging in
public education efforts; coordinating training and technical
assistance of U.S. government expertise with host countries;
assisting in the coordination of the efforts of the IPER,
Federal agencies, and private organizations; and identifying
and promoting other means of combating counterfeiting and
piracy. This section also provides the Undersecretary of
Commerce for Intellectual Property and Director of the United
States Patent and Trademark Office with the authority to
provide such managerial, administrative, research, and other
services as the Secretary of Commerce considers necessary to
assist the intellectual property attaches in carrying out their
responsibilities.
Sec. 403. Training and Designation of Assignment. Section
403 requires the Director of the USPTO to ensure that attaches
are fully trained and, when considering in which countries to
deploy attaches, to give priority to countries where the
attache can be most effective and offer the greatest benefit in
reducing counterfeit and pirated products in the United States.
Sec. 404. Coordination. Section 404 specifies that the
activities of title IV of the bill must be carried out in
coordination with the IPER appointed under section 301. This
section also requires the submission of an annual report to
Congress on the activities of all Department of Commerce
attaches serving at United States embassies or other diplomatic
missions.
Sec. 405. Authorization of Appropriations. Section 405
authorizes to be appropriated each fiscal year such sums as may
be necessary for the training and support of the intellectual
property attaches.
TITLE V. DEPARTMENT OF JUSTICE PROGRAMS
Sec. 501. Intellectual Property Enforcement Officer.
Section 501 establishes within the Office of the Deputy
Attorney General in the Department of Justice the Intellectual
Property Enforcement Division. The head of the Intellectual
Property Enforcement Division will be the Intellectual Property
Enforcement Officer, who will be appointed by the Attorney
General and will report directly to the Deputy Attorney
General. The functions of the existing Computer Crime and
Intellectual Property Section (CCIPS), currently part of the
Criminal Division of the Department of Justice, are divided,
with the intellectual property law enforcement functions moving
to the new Intellectual Property Enforcement Division. In
addition, the current and newly added International
Intellectual Property Law Enforcement Coordinators (IIPLEC),
specified in section 521, will also become part of the
Intellectual Property Enforcement Division. The Intellectual
Property Enforcement Officer will head the new division, and
will be responsible for: 1) coordinating all efforts at the
Department of Justice relating to combating counterfeiting and
piracy; 2) serving on the Advisory Committee as the Department
of Justice liaison with the Office of the United States
Intellectual Property Enforcement Representative established
under Title III of this Act; and 3) undertaking any other
related duties that may be assigned by the Deputy Attorney
General.
Sec. 511. Local Law Enforcement Grants. Section 511
authorizes grants to State and local law enforcement entities
for training, prevention, enforcement, and prosecution of
intellectual property theft and infringement cases. Grants may
be used to assist State and local law enforcement agencies in
enforcing IP-related crimes, including to reimburse State and
local entities for expenses incurred from enforcement
operations; to assist State and local agencies in educating the
public to prevent, deter, and identify IP-related crimes; to
educate and train State and local entities to conduct
investigations and forensic analyses of evidence; to establish
dedicated task forces to conduct investigations; to assist
police and prosecutors in acquiring computer and other
equipment to conduct investigations; and to facilitate and
promote sharing of Federal law enforcement expertise with State
and local agencies. The eligibility requirements that must be
met for receipt of such a grant are specified in this section.
Sec. 512. CHIP Units, Training, and Additional Resources.
Section 512 requires DOJ to review established Computer Hacking
and Intellectual Property (CHIP) units to improve
effectiveness; ensure they are established and funded in every
judicial district in which they can be effectively deployed;
upgrade training and expertise of DOJ personnel participating
in CHIP units; and improve coordination of CHIP unit activities
with corresponding State and local entities. This Act provides
for CHIP units to be establish and staffed in at least ten
Federal judicial districts in addition to those districts in
which CHIP units exist on the date of the enactment of this
Act. In addition, section 512 requires the Attorney General to
establish and staff at least ten additional CHIP units, and
ensure that each is supported by at least two additional FBI
agents and at least one additional assistant United States
Attorney (AUSA) for the specific purpose of investigating or
prosecuting intellectual property crimes. An operational unit
at FBI headquarters is created consisting of five FBI agents
dedicated to working with CCIPS on the development,
investigation and coordination of complex, multi-district and
international criminal IP cases. The AUSAs will ensure
coordination with State or local law enforcement. Section 512
also sets additional standards for training and funding of DOJ
personnel involved in investigating and prosecuting
intellectual property crimes.
Sec. 513. Transparency of Prosecutorial Decision-Making.
Section 513 specifies that all U.S. Attorneys must review their
current standards for accepting or declining prosecution of
criminal IP cases, consider whether the current standards
should be modified, and review their procedures for advising
complainants and victims of intellectual property violations
that are declined for prosecution.
Sec. 514. Authorization of Appropriations. Section 514
authorizes such sums as may be necessary to carry out the
subtitle.
Sec. 521. International Intellectual Property Law
Enforcement Coordinators. Section 521 requires the Attorney
General to deploy five IIPLECs, in addition to those serving in
that capacity on the date of enactment of this Act, to
countries and regions where the IIPLECs can be best utilized.
The IIPLECs will act as liaisons with foreign law enforcement
agencies and officials, perform outreach and training to build
enforcement capacity of foreign governments, coordinate U.S.
law enforcement activities against intellectual property crimes
in the regions, coordinate with the intellectual property
attaches specified in Title IV, and report to the Department of
Justice Intellectual Property Enforcement Officer.
Sec. 522. International Training Activities of the Computer
Crime and Intellectual Property Section. Section 522 directs
the Attorney General to increase the Department of Justice's
efforts to provide training and technical assistance to foreign
governments to more effectively combat counterfeiting and
piracy activities. This section specifies that priority shall
be given to countries where programs can be carried out
effectively and with the greatest likelihood of reducing
counterfeit and pirated products.
Sec. 531. Coordination. Section 531 states that all
activities of title V of the bill must be carried out in a
manner consistent with the JSP developed under section 321.
Sec. 532. Annual Reports. Section 532 specifies that the
Attorney General shall ensure that the requirements set forth
in title V are met no later than 1 year after enactment.
Annually thereafter, the Attorney General must submit a report
to the House and Senate Judiciary Committees on actions taken
to carry out those requirements.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic existing law in which no change is
proposed is shown in roman):
TITLE 17, UNITED STATES CODE
Chapter Sec.
Subject Matter and Scope of Copyright..........................101
* * * * * * *
Manufacturing Requirements and Importation....................601]
601 Manufacturing Requirements, Importation, and Exportation..........
* * * * * * *
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
* * * * * * *
Sec. 410. Registration of claim and issuance of certificate
(a) * * *
* * * * * * *
(c)(1) A certificate of registration satisfies the
requirements of section 411 and section 412 regardless of any
inaccurate information contained in the certificate, unless--
(A) the inaccurate information was included on the
application for copyright registration with knowledge
that it was inaccurate; and
(B) the inaccuracy of the information, if known,
would have caused the Register of Copyrights to refuse
registration.
(2) In any case in which inaccuracies described under
paragraph (1) are alleged, the court shall request the Register
of Copyrights to advise the court whether the inaccuracy of the
information, if known, would have caused the Register of
Copyrights to refuse registration. The Register shall respond
to the court's request within 45 days after the request is
made.
(3) Nothing in this subsection shall affect any rights,
obligations, or requirements of a person related to information
contained in a registration certificate except for the
institution of and remedies in infringement actions under
sections 411 and 412.
[(c)] (d) In any judicial proceedings the certificate of a
registration made before or within five years after first
publication of the work shall constitute prima facie evidence
of the validity of the copyright and of the facts stated in the
certificate. The evidentiary weight to be accorded the
certificate of a registration made thereafter shall be within
the discretion of the court.
[(d)] (e) The effective date of a copyright registration is
the day on which an application, deposit, and fee, which are
later determined by the Register of Copyrights or by a court of
competent jurisdiction to be acceptable for registration, have
all been received in the Copyright Office.
Sec. 411. Registration and civil infringement actions
(a) Except for an action brought for a violation of the
rights of the author under section 106A(a), and subject to the
provisions of subsection (b), no civil action for infringement
of the copyright in any United States work shall be instituted
until preregistration or registration of the copyright claim
has been made in accordance with this title. In any case,
however, where the deposit, application, and fee required for
registration have been delivered to the Copyright Office in
proper form and registration has been refused, the applicant is
entitled to institute an action for infringement if notice
thereof, with a copy of the complaint, is served on the
Register of Copyrights. The Register may, at his or her option,
become a party to the action with respect to the issue of
registrability of the copyright claim by entering an appearance
within sixty days after such service, but the Register's
failure to become a party shall not deprive the court of
jurisdiction to determine that issue.
(b) In the case of a work consisting of sounds, images, or
both, the first fixation of which is made simultaneously with
its transmission, the copyright owner may, either before or
after such fixation takes place, institute an action for
infringement under section 501, fully subject to the remedies
provided by sections 502 through [506 and sections 509 and] 505
and section 510, if, in accordance with requirements that the
Register of Copyrights shall prescribe by regulation, the
copyright owner--
(1) * * *
* * * * * * *
CHAPTER 5--COPYRIGHT INFRINGEMENT AND REMEDIES
Sec.
501. Infringement of copyright.
* * * * * * *
[509. Seizure and forfeiture.]
* * * * * * *
* * * * * * *
Sec. 503. Remedies for infringement: Impounding and disposition of
infringing articles
(a) At any time while an action under this title is pending,
the court may order the impounding, on such terms as it may
deem reasonable, of all copies or phonorecords claimed to have
been made or used in violation of the copyright owner's
exclusive rights, [and of all plates] of all plates, molds,
matrices, masters, tapes, film negatives, or other articles by
means of which such copies or phonorecords may be
reproduced[.], and records documenting the manufacture, sale,
or receipt of things involved in such violation. The court
shall enter an appropriate protective order with respect to
discovery by the applicant of any records that have been
seized. The protective order shall provide for appropriate
procedures to assure that confidential information contained in
such records is not improperly disclosed to the applicant.
* * * * * * *
Sec. 506. Criminal offenses
(a) * * *
(b) Forfeiture and Destruction.--When any person is convicted
of any violation of subsection (a), the court in its judgment
of conviction shall, in addition to the penalty therein
prescribed, order the forfeiture and destruction [or other
disposition of all infringing copies or phonorecords and all
implements, devices, or equipment used in the manufacture of
such infringing copies or phonorecords.] of property as
prescribed by section 2319(g) of title 18.
* * * * * * *
[Sec. 509. Seizure and forfeiture
[(a) All copies or phonorecords manufactured, reproduced,
distributed, sold, or otherwise used, intended for use, or
possessed with intent to use in violation of section 506(a),
and all plates, molds, matrices, masters, tapes, film
negatives, or other articles by means of which such copies or
phonorecords may be reproduced, and all electronic, mechanical,
or other devices for manufacturing, reproducing, or assembling
such copies or phonorecords may be seized and forfeited to the
United States.
[(b) The applicable procedures relating to (i) the seizure,
summary and judicial forfeiture, and condemnation of vessels,
vehicles, merchandise, and baggage for violations of the
customs laws contained in title 19, (ii) the disposition of
such vessels, vehicles, merchandise, and baggage or the
proceeds from the sale thereof, (iii) the remission or
mitigation of such forfeiture, (iv) the compromise of claims,
and (v) the award of compensation to informers in respect of
such forfeitures, shall apply to seizures and forfeitures
incurred, or alleged to have been incurred, under the
provisions of this section, insofar as applicable and not
inconsistent with the provisions of this section; except that
such duties as are imposed upon any officer or employee of the
Treasury Department or any other person with respect to the
seizure and forfeiture of vessels, vehicles, merchandise, and
baggage under the provisions of the customs laws contained in
title 19 shall be performed with respect to seizure and
forfeiture of all articles described in subsection (a) by such
officers, agents, or other persons as may be authorized or
designated for that purpose by the Attorney General.]
* * * * * * *
[CHAPTER 6--MANUFACTURING REQUIREMENTS AND IMPORTATION]
CHAPTER 6--MANUFACTURING REQUIREMENTS, IMPORTATION, AND EXPORTATION
* * * * * * *
Sec. 601. Manufacture, importation, and public distribution of certain
copies
(a) * * *
(b) The provisions of subsection (a) do not apply--
(1) * * *
(2) where [the United States Customs Service] U.S.
Customs and Border Protection is presented with an
import statement issued under the seal of the Copyright
Office, in which case a total of no more than two
thousand copies of any one such work shall be allowed
entry; the import statement shall be issued upon
request to the copyright owner or to a person
designated by such owner at the time of registration
for the work under section 408 or at any time
thereafter;
* * * * * * *
Sec. 602. Infringing importation or exportation of copies or
phonorecords
[(a)] (a) Infringing Importation and Exportation.--
(1) Importation.--Importation into the United States,
without the authority of the owner of copyright under
this title, of copies or phonorecords of a work that
have been acquired outside the United States is an
infringement of the exclusive right to distribute
copies or phonorecords under section 106, actionable
under section 501. [This subsection does not apply to--
]
(2) Importation or exportation of infringing items.--
Importation into the United States or exportation from
the United States, without the authority of the owner
of copyright under this title, of copies or
phonorecords, the making of which either constituted an
infringement of copyright or would have constituted an
infringement of copyright if this title had been
applicable, is an infringement of the exclusive right
to distribute copies or phonorecords under section 106,
actionable under sections 501 and 506.
(3) Exceptions.--This subsection does not apply to--
[(1)] (A) importation or exportation of
copies or phonorecords under the authority or
for the use of the Government of the United
States or of any State or political subdivision
of a State, but not including copies or
phonorecords for use in schools, or copies of
any audiovisual work imported for purposes
other than archival use;
[(2) importation, for the private use of the
importer] (B) importation or exportation, for
the private use of the importer or exporter and
not for distribution, by any person with
respect to no more than one copy or phonorecord
of any one work at any one time, or by any
person arriving from outside the United States
or departing from the United States with
respect to copies or phonorecords forming part
of such person's personal baggage; or
[(3)] (C) importation by or for an
organization operated for scholarly,
educational, or religious purposes and not for
private gain, with respect to no more than one
copy of an audiovisual work solely for its
archival purposes, and no more than five copies
or phonorecords of any other work for its
library lending or archival purposes, unless
the importation of such copies or phonorecords
is part of an activity consisting of systematic
reproduction or distribution, engaged in by
such organization in violation of the
provisions of section 108(g)(2).
[(b) In a case] (b) Import Prohibition.--In a case where the
making of the copies or phonorecords would have constituted an
infringement of copyright if this title had been applicable,
their importation is prohibited. In a case where the copies or
phonorecords were lawfully made, [the United States Customs
Service] U.S. Customs and Border Protection has no authority to
prevent their importation unless the provisions of section 601
are applicable. In either case, the Secretary of the Treasury
is authorized to prescribe, by regulation, a procedure under
which any person claiming an interest in the copyright in a
particular work may, upon payment of a specified fee, be
entitled to notification by [the Customs Service] U.S. Customs
and Border Protection of the importation of articles that
appear to be copies or phonorecords of the work.
* * * * * * *
----------
TRADEMARK ACT OF 1946
* * * * * * *
TITLE VI--REMEDIES
* * * * * * *
Sec. 35.(a) * * *
[(b) In assessing damages under subsection (a), the court
shall, unless the court finds extenuating circumstances, enter
judgment for three times such profits or damages, whichever is
greater, together with a reasonable attorney's fee in the case
of any violation of section 32(1)(a) of this Act (15 U.S.C.
1114(1)(a)) or section 220506 of title 36, United States Code,
that consists of intentionally using a mark or designation,
knowing such mark or designation is a counterfeit mark (as
defined in section 34(d) of this Act (15 U.S.C. 1116(d)), in
connection with the sale, offering for sale, or distribution of
goods or services. In such cases, the court may in its
discretion award prejudgment interest on such amount at an
annual interest rate established under such 6621(a)(2) of the
Internal Revenue Code of 1986, commencing on the date of the
service of the claimant's pleadings setting forth the claim for
such entry and ending on the date such entry is made, or for
such shorter time as the court deems appropriate.]
(b) In assessing damages under subsection (a) for any
violation of section 32(1)(a) of this Act or section 220506 of
title 36, United States Code, in a case involving use of a
counterfeit mark or designation (as defined in section 34(d) of
this Act), the court shall, unless the court finds extenuating
circumstances, enter judgment for three times such profits or
damages, whichever amount is greater, together with a
reasonable attorney's fee, if the violation consists of--
(1) intentionally using a mark or designation,
knowing such mark or designation is a counterfeit mark
(as defined in section 34(d) of this Act), in
connection with the sale, offering for sale, or
distribution of goods or services;
(2) intentionally inducing another to engage in a
violation specified in paragraph (1); or
(3) providing goods or services necessary to the
commission of a violation specified in paragraph (1),
with the intent that the recipient of the goods or
services would put the goods or services to use in
committing the violation.
In such a case, the court may award prejudgment interest on
such amount at an annual interest rate established under
section 6621(a)(2) of the Internal Revenue Code of 1986,
beginning on the date of the service of the claimant's
pleadings setting forth the claim for such entry of judgment
and ending on the date such entry is made, or for such shorter
time as the court considers appropriate.
(c) In a case involving the use of a counterfeit mark (as
defined in section 34(d) (15 U.S.C. 1116(d)) in connection with
the sale, offering for sale, or distribution of goods or
services, the plaintiff may elect, at any time before final
judgment is rendered by the trial court, to recover, instead of
actual damages and profits under subsection (a), an award of
statutory damages for any such use in connection with the sale,
offering for sale, or distribution of goods or services in the
amount of--
(1) not less than [$500] $1,000 or more than
[$100,000] $200,000 per counterfeit mark per type of
goods or services sold, offered for sale, or
distributed, as the court considers just; or
(2) if the court finds that the use of the
counterfeit mark was willful, not more than
[$1,000,000] $2,000,000 per counterfeit mark per type
of goods or services sold, offered for sale, or
distributed, as the court considers just.
* * * * * * *
TITLE VII--IMPORTATION OR EXPORTATION FORBIDDEN OF GOODS BEARING
INFRINGING MARKS OR NAMES
Sec. 42. Except as provided in subsection (d) of section 526
of the Tariff Act of 1930, no article of [imported] merchandise
which shall copy or simulate the name of any domestic
manufacture, or manufacturer, or trader, or of any manufacturer
or trader located in any foreign country which, by treaty,
convention, or law affords similar privileges to citizens of
the United States, or which shall copy or simulate a trademark
registered in accordance with the provisions of this Act or
shall bear a name or mark calculated to induce the public to
believe that the article is manufactured in the United States,
or that it is manufactured in any foreign country or locality
other than the country or locality in which it is in fact
manufactured, shall be admitted to entry at any customhouse of
the United States, nor shall any such article be exported from
the United States; and, in order to aid the officers of the
customs in enforcing this prohibition, any domestic
manufacturer or trader, and any foreign manufacturer or trader,
who is entitled under the provisions of a treaty, convention,
declaration, or agreement between the United States and any
foreign country to the advantages afforded by law to citizens
of the United States in respect to trademarks and commercial
names, may require his name and residence, and the name of the
locality in which his goods are manufactured, and a copy of the
certificate of registration of his trademark, issued in
accordance with the provisions of this Act, to be recorded in
books which shall be kept for this purpose in the Department of
the Treasury, under such regulations as the Secretary of the
Treasury shall prescribe, and may furnish to the Department
facsimiles of his name, the name of the locality in which his
goods are manufactured, or of his registered trademark, and
thereupon the Secretary of the Treasury shall cause one or more
copies of the same to be transmitted to each collector or other
proper officer of customs.
* * * * * * *
----------
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 113--STOLEN PROPERTY
* * * * * * *
Sec. 2318. Trafficking in counterfeit labels, illicit labels, or
counterfeit documentation or packaging
(a) * * *
* * * * * * *
[(d) When any person is convicted of any violation of
subsection (a), the court in its judgment of conviction shall
in addition to the penalty therein prescribed, order the
forfeiture and destruction or other disposition of all
counterfeit labels or illicit labels and all articles to which
counterfeit labels or illicit labels have been affixed or which
were intended to have had such labels affixed, and of any
equipment, device, or material used to manufacture, reproduce,
or assemble the counterfeit labels or illicit labels.
[(e) Except to the extent they are inconsistent with the
provisions of this title, all provisions of section 509, title
17, United States Code, are applicable to violations of
subsection (a).]
(d) Forfeiture and Destruction; Restitution.--
(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
(i) Any counterfeit documentation or
packaging, and any counterfeit label or illicit
label and any article to which a counterfeit
label or illicit label has been affixed, which
a counterfeit label or illicit label encloses
or accompanies, or which was intended to have
had such label affixed, enclosing, or
accompanying.
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of a violation of
subsection (a).
(iii) Any property used, or intended to be
used, to commit or facilitate the commission of
a violation of subsection (a) that is owned or
predominantly controlled by the violator or by
a person conspiring with or aiding and abetting
the violator in committing the violation,
except that property is subject to forfeiture
under this clause only if the Government
establishes that there was a substantial
connection between the property and the
violation of subsection (a).
(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil
forfeiture under subparagraph (A). At the conclusion of
the forfeiture proceedings, the court shall order that
any forfeited counterfeit labels or illicit labels and
any article to which a counterfeit label or illicit
label has been affixed, which a counterfeit label or
illicit label encloses or accompanies, or which was
intended to have had such label affixed, enclosing, or
accompanying, be destroyed or otherwise disposed of
according to law.
(C) In this paragraph, the term ``aiding and
abetting'' means knowingly providing aid to the
violator with the intent to facilitate the violation.
(2) Criminal forfeiture proceedings.--(A) The court,
in imposing sentence on a person convicted of an
offense under this section, shall order, in addition to
any other sentence imposed, that the person forfeit to
the United States the following property:
(i) Any counterfeit documentation or
packaging, and any counterfeit label or illicit
label, that was used, intended for use, or
possessed with intent to use in the commission
of an offense under subsection (a), and any
article to which such a counterfeit label or
illicit label has been affixed, which such a
counterfeit label or illicit label encloses or
accompanies, or which was intended to have had
such label affixed, enclosing, or accompanying.
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of an offense under
subsection (a).
(iii) Any property used, or intended to be
used, to commit or substantially facilitate the
commission of an offense under subsection (a).
(B) The forfeiture of property under subparagraph
(A), including any seizure and disposition of the
property and any related judicial or administrative
proceeding, shall be governed by the procedures set
forth in section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853),
other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court
shall order that any counterfeit label or illicit label
and any article to which a counterfeit label or illicit
label has been affixed, which a counterfeit label or
illicit label encloses or accompanies, or which was
intended to have had such label affixed, enclosing, or
accompanying, be destroyed or otherwise disposed of
according to law.
(3) Restitution.--When a person is convicted of an
offense under this section, the court, pursuant to
sections 3556, 3663A, and 3664, shall order the person
to pay restitution to the owner of the marks or
copyrighted works involved in the offense and any other
victim of the offense as an offense against property
referred to in section 3663A(c)(1)(A)(ii).
[(f)] (e) Civil Remedies.--
(1) * * *
* * * * * * *
Sec. 2319. Criminal infringement of a copyright
(a) * * *
(b) Any person who commits an offense under section
506(a)(1)(A) of title 17--
(1) * * *
(2) shall be imprisoned not more than 10 years, or
fined in the amount set forth in this title, or both,
if the offense is a felony and is a second or
subsequent offense under [paragraph (1)] subsection
(a); and
* * * * * * *
(c) Any person who commits an offense under section
506(a)(1)(B) of title 17--
(1) * * *
(2) shall be imprisoned not more than 6 years, or
fined in the amount set forth in this title, or both,
if the offense is a felony and is a second or
subsequent offense under [paragraph (1)] subsection
(a); and
* * * * * * *
(d) Any person who commits an offense under section
506(a)(1)(C) of title 17--
(1) * * *
* * * * * * *
(3) shall be imprisoned not more than 6 years, fined
under this title, or both, if the offense is a felony
and is a second or subsequent offense under subsection
(a); and
(4) shall be imprisoned not more than 10 years, fined
under this title, or both, if the offense is a felony
and is a second or subsequent offense under paragraph
(2).
* * * * * * *
(g) Forfeiture and Destruction; Restitution.--
(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
(i) Any copies or phonorecords manufactured,
reproduced, distributed, sold, or otherwise
used, intended for use, or possessed with
intent to use in violation of section 506(a) of
title 17, any plates, molds, matrices, masters,
tapes, film negatives, or other articles by
means of which such copies or phonorecords may
be made, and any devices for manufacturing,
reproducing, or assembling such copies or
phonorecords.
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of a violation of
section 506(a) of title 17.
(iii) Any property used, or intended to be
used, to commit or facilitate the commission of
a violation of section 506(a) of title 17 that
is owned or predominantly controlled by the
violator or by a person conspiring with or
aiding and abetting the violator in committing
the violation, except that property is subject
to forfeiture under this clause only if the
Government establishes that there was a
substantial connection between the property and
the violation of section 506(a) of title 17.
(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil
forfeiture under this section. At the conclusion of the
forfeiture proceedings, the court shall order that any
forfeited infringing copies or phonorecords, and any
plates, molds, matrices, masters, tapes, and film
negatives by means of which such unauthorized copies or
phonorecords may be made, be destroyed or otherwise
disposed of according to law.
(C) In this paragraph, the term ``aiding and
abetting'' means knowingly providing aid to the
violator with the intent to facilitate the violation.
(2) Criminal forfeiture proceedings.--(A) The court,
in imposing sentence on a person convicted of an
offense under subsection (a), shall order, in addition
to any other sentence imposed, that the person forfeit
to the United States the following property:
(i) Any copies or phonorecords manufactured,
reproduced, distributed, sold, or otherwise
used, intended for use, or possessed with
intent to use in the commission of an offense
under subsection (a), any plates, molds,
matrices, masters, tapes, film negatives, or
other articles by means of which the copies or
phonorecords may be reproduced, and any
electronic, mechanical, or other devices for
manufacturing, reproducing, or assembling such
copies or phonorecords.
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of an offense under
subsection (a).
(iii) Any property used, or intended to be
used, to commit or substantially facilitate the
commission of an offense under subsection (a).
(B) The forfeiture of property under subparagraph
(A), including any seizure and disposition of the
property and any related judicial or administrative
proceeding, shall be governed by the procedures set
forth in section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853),
other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court
shall order that any forfeited infringing copies or
phonorecords, and any plates, molds, matrices, masters,
tapes, and film negatives by means of which such
infringing copies or phonorecords may be made, be
destroyed or otherwise disposed of according to law.
(3) Restitution.--When a person is convicted of an
offense under this section, the court, pursuant to
sections 3556, 3663A, and 3664, shall order the person
to pay restitution to the copyright owner and any other
victim of the offense as an offense against property
referred to in section 3663A(c)(1)(A)(ii).
Sec. 2319A. Unauthorized fixation of and trafficking in sound
recordings and music videos of live musical
performances
(a) * * *
[(b) Forfeiture and Destruction.--When a person is convicted
of a violation of subsection (a), the court shall order the
forfeiture and destruction of any copies or phonorecords
created in violation thereof, as well as any plates, molds,
matrices, masters, tapes, and film negatives by means of which
such copies or phonorecords may be made. The court may also, in
its discretion, order the forfeiture and destruction of any
other equipment by means of which such copies or phonorecords
may be reproduced, taking into account the nature, scope, and
proportionality of the use of the equipment in the offense.
[(c) Seizure and Forfeiture.--If copies or phonorecords of
sounds or sounds and images of a live musical performance are
fixed outside of the United States without the consent of the
performer or performers involved, such copies or phonorecords
are subject to seizure and forfeiture in the United States in
the same manner as property imported in violation of the
customs laws. The Secretary of the Treasury shall, not later
than 60 days after the date of the enactment of the Uruguay
Round Agreements Act, issue regulations to carry out this
subsection, including regulations by which any performer may,
upon payment of a specified fee, be entitled to notification by
the United States Customs Service of the importation of copies
or phonorecords that appear to consist of unauthorized
fixations of the sounds or sounds and images of a live musical
performance.]
(b) Forfeiture and Destruction; Restitution.--
(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
(i) Any copies or phonorecords of a live
musical performance described in subsection
(a)(1) that are made without the consent of the
performer or performers involved, and any
plates, molds, matrices, masters, tapes, and
film negatives by means of which such copies or
phonorecords may be made.
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of a violation of
subsection (a).
(iii) Any property used, or intended to be
used, to commit or facilitate the commission of
a violation of subsection (a) that is owned or
predominantly controlled by the violator or by
a person conspiring with or aiding and abetting
the violator in committing the violation,
except that property is subject to forfeiture
under this clause only if the Government
establishes that there was a substantial
connection between the property and the
violation of subsection (a).
(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil
forfeiture under paragraph (1). At the conclusion of
the forfeiture proceedings, the court shall order that
any forfeited unauthorized copies or phonorecords of
live musical performances, and any plates, molds,
matrices, maters, tapes, and film negatives by means of
which such unauthorized copies or phonorecords may be
made, be destroyed or otherwise disposed of according
to law.
(C) In this paragraph, the term ``aiding and
abetting'' means knowingly providing aid to the
violator with the intent to facilitate the violation.
(2) Criminal forfeiture proceedings.--(A) The court,
in imposing sentence on a person convicted of an
offense under this section, shall order, in addition to
any other sentence imposed, that the person forfeit to
the United States the following property:
(i) Any unauthorized copies or phonorecords
of a live musical performance that were used,
intended for use, or possessed with intent to
use in the commission of an offense under
subsection (a), and any plates, molds,
matrices, masters, tapes, and film negatives by
means of which such copies or phonorecords may
be made.
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of an offense under
subsection (a).
(iii) Any property used, or intended to be
used, to commit or substantially facilitate the
commission of an offense under subsection (a).
(B) The forfeiture of property under subparagraph
(A), including any seizure and disposition of the
property and any related judicial or administrative
proceeding, shall be governed by the procedures set
forth in section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853),
other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court
shall order that any forfeited unauthorized copies or
phonorecords of live musical performances, and any
plates, molds, matrices, masters, tapes, and film
negatives by means of which such unauthorized copies of
phonorecords may be made, be destroyed or otherwise
disposed of according to law.
(3) Notification of importation.--The Secretary of
Homeland Security shall issue regulations by which any
performer may, upon payment of a specified fee, be
entitled to notification by U.S. Customs and Border
Protection of the importation of copies or phonorecords
that appear to consist of unauthorized fixations of the
sounds or sounds and images of a live musical
performance prohibited by this section.
(4) Restitution.--When a person is convicted of an
offense under this section, the court, pursuant to
sections 3556, 3663A, and 3664, shall order the person
to pay restitution to the performer or performers
involved, and any other victim of the offense as an
offense against property referred to in section
3663A(c)(1)(A)(ii).
[(d)] (c) Victim Impact Statement.--(1) * * *
* * * * * * *
[(e)] (d) Definitions.--As used in this section--
(1) * * *
* * * * * * *
[(f)] (e) Applicability.--This section shall apply to any Act
or Acts that occur on or after the date of the enactment of the
Uruguay Round Agreements Act, except that the forfeiture
provisions under subsection (b)(2), as added by the
Prioritizing Resources and Organization for Intellectual
Property Act, shall apply only in a case in which the
underlying act or acts occur on or after the date of the
enactment of that Act.
Sec. 2319B. Unauthorized recording of Motion pictures in a Motion
picture exhibition facility
(a) * * *
[(b) Forfeiture and Destruction.--When a person is convicted
of a violation of subsection (a), the court in its judgment of
conviction shall, in addition to any penalty provided, order
the forfeiture and destruction or other disposition of all
unauthorized copies of motion pictures or other audiovisual
works protected under title 17, or parts thereof, and any
audiovisual recording devices or other equipment used in
connection with the offense.]
(b) Forfeiture and Destruction; Restitution.--
(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
(i) Any copies of a motion picture or other
audiovisual work protected under title 17 that
are made without the authorization of the
copyright owner.
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of a violation of
subsection (a).
(iii) Any property used, or intended to be
used, to commit or facilitate the commission of
a violation of subsection (a) that is owned or
predominantly controlled by the violator or by
a person conspiring with or aiding and abetting
the violator in committing the violation,
except that property is subject to forfeiture
under this clause only if the Government
establishes that there was a substantial
connection between the property and the
violation of subsection (a).
(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil
forfeiture under this section. At the conclusion of the
forfeiture proceedings, the court shall order that any
forfeited unauthorized copies or phonorecords of a
motion picture or other audiovisual work, or part
thereof, and any plates, molds, matrices, masters,
tapes, and film negatives by means of which such
unauthorized copies or phonorecords may be made, be
destroyed or otherwise disposed of according to law.
(C) In this paragraph, the term ``aiding and
abetting'' means knowingly providing aid to the
violator with the intent to facilitate the violation.
(2) Criminal forfeiture proceedings.--(A) The court,
in imposing sentence on a person convicted of an
offense under this section, shall order, in addition to
any other sentence imposed, that the person forfeit to
the United States the following property:
(i) Any unauthorized copies of a motion
picture or other audiovisual work protected
under title 17, or part thereof, that were
used, intended for use, or possessed with
intent to use in the commission of an offense
under subsection (a).
(ii) Any property constituting or derived
from any proceeds obtained directly or
indirectly as a result of an offense under
subsection (a).
(iii) Any property used, or intended to be
used, to commit or substantially facilitate the
commission of an offense under subsection (a).
(B) The forfeiture of property under subparagraph
(A), including any seizure and disposition of the
property and any related judicial or administrative
proceeding, shall be governed by the procedures set
forth in section 413 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 853),
other than subsection (d) of that section. At the
conclusion of the forfeiture proceedings, the court
shall order that any forfeited unauthorized copies or
phonorecords of a motion picture or other audiovisual
work, or part thereof, and any plates, molds, matrices,
masters, tapes, and film negatives by means of which
such unauthorized copies or phonorecords may be made,
be destroyed or otherwise disposed of according to law.
(3) Restitution.--When a person is convicted of an
offense under this chapter, the court, pursuant to
sections 3556, 3663A, and 3664, shall order the person
to pay restitution to the owner of the copyright in the
motion picture or other audiovisual work and any other
victim of the offense as an offense against property
referred to in section 3663A(c)(1)(A)(ii).
* * * * * * *
Sec. 2320. Trafficking in counterfeit goods or services
(a) [Whoever] Offense.--
(1) In general.--Whoever intentionally traffics or
attempts to traffic in goods or services and knowingly
uses a counterfeit mark on or in connection with such
goods or services, or intentionally traffics or
attempts to traffic in labels, patches, stickers,
wrappers, badges, emblems, medallions, charms, boxes,
containers, cans, cases, hangtags, documentation, or
packaging of any type or nature, knowing that a
counterfeit mark has been applied thereto, the use of
which is likely to cause confusion, to cause mistake,
or to deceive, shall, if an individual, be fined not
more than $2,000,000 or imprisoned not more than 10
years, or both, and, if a person other than an
individual, be fined not more than $5,000,000. In the
case of an offense by a person under this section that
occurs after that person is convicted of another
offense under this section, the person convicted, if an
individual, shall be fined not more than $5,000,000 or
imprisoned not more than 20 years, or both, and if
other than an individual, shall be fined not more than
$15,000,000.
(2) Serious bodily harm or death.--
(A) Serious bodily harm.--If the offender
knowingly or recklessly causes or attempts to
cause serious bodily injury from conduct in
violation of paragraph (1), the penalty shall
be a fine under this title or imprisonment for
not more than 20 years, or both.
(B) Death.--If the offender knowingly or
recklessly causes or attempts to cause death
from conduct in violation of paragraph (1), the
penalty shall be a fine under this title or
imprisonment for any term of years or for life,
or both.
(b)(1) The following property shall be subject to forfeiture
to the United States and no property right shall exist in such
property:
(A) Any article bearing or consisting of a
counterfeit mark used in committing a violation of
subsection (a).
(B) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of
a violation of subsection (a).
[(B)] (C) Any property used, in any manner or part,
to commit or to facilitate the commission of a
violation of subsection (a).
* * * * * * *
----------
SECTION 182 OF THE TRADE ACT OF 1974
* * * * * * *
SEC. 182. IDENTIFICATION OF COUNTRIES THAT DENY ADEQUATE PROTECTION, OR
MARKET ACCESS, FOR INTELLECTUAL PROPERTY RIGHTS.
(a) * * *
(b) Special Rules for Identifications.--
(1) * * *
(2) In identifying priority foreign countries under
subsection (a)(2), the Trade Representative shall--
(A) consult with the United States
Intellectual Property Enforcement
Representative, the Register of Copyrights, the
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office, other appropriate
officers of the Federal Government, and
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TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART D--PAY AND ALLOWANCES
* * * * * * *
CHAPTER 53--PAY RATES AND SYSTEMS
* * * * * * *
SUBCHAPTER II--EXECUTIVE SCHEDULE PAY RATES
Sec. 5312. Positions at level I
Level I of the Executive Schedule applies to the following
positions for which the annual rate of basic pay shall be the
rate determined with respect to such level under chapter 11 of
title 2, as adjusted by section 5318 of this title:
Secretary of State.
* * * * * * *
United States Intellectual Property Enforcement
Representative.
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TREASURY AND GENERAL GOVERNMENT APPROPRIATIONS ACT, 2000
* * * * * * *
TITLE VI--GENERAL PROVISIONS
DEPARTMENTS, AGENCIES, AND CORPORATIONS
* * * * * * *
[Sec. 653. (a) Establishment.--There is established the
National Intellectual Property Law Enforcement Coordination
Council (in this section referred to as the ``Council''). The
Council shall consist of the following members--
[(1) The Assistant Secretary of Commerce and Commissioner of
Patents and Trademarks, who shall serve as co-chair of the
Council.
[(2) The Assistant Attorney General, Criminal Division, who
shall serve as co-chair of the Council.
[(3) The Under Secretary of State for Economic and
Agricultural Affairs.
[(4) The Ambassador, Deputy United States Trade
Representative.
[(5) The Commissioner of Customs.
[(6) The Under Secretary of Commerce for International Trade.
[(7) The Coordinator for International Intellectual Property
Enforcement.'' after ``Under Secretary of Commerce for
International Trade.
[(b) Duties.--The Council established in subsection (a) shall
coordinate domestic and international intellectual property law
enforcement among federal and foreign entities.
[(c) Consultation Required.--The Council shall consult with
the Register of Copyrights on law enforcement matters relating
to copyright and related rights and matters.
[(d) Non-derogation.--Nothing in this section shall derogate
from the duties of the Secretary of State or from the duties of
the United States Trade Representative as set forth in section
141 of the Trade Act of 1974 (19 U.S.C. 2171), or from the
duties and functions of the Register of Copyrights, or
otherwise alter current authorities relating to copyright
matters.
[(e) Report.--The Council shall report annually on its
coordination activities to the President, and to the Committees
on Appropriations and on the Judiciary of the Senate and the
House of Representatives.
[(f) Funding.--Notwithstanding section 1346 of title 31,
United States Code, or section 610 of this Act, funds made
available for fiscal year 2000 and hereafter by this or any
other Act shall be available for interagency funding of the
National Intellectual Property Law Enforcement Coordination
Council.]
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COMPUTER CRIME ENFORCEMENT ACT
* * * * * * *
SEC. 2. STATE GRANT PROGRAM FOR TRAINING AND PROSECUTION OF COMPUTER
CRIMES.
(a) * * *
(b) Use of Grant Amounts.--Grants under this section may be
used to establish and develop programs to--
(1) assist State and local law enforcement agencies
in enforcing State and local criminal laws relating to
computer crime, including infringement of copyrighted
works over the Internet;
(2) assist State and local law enforcement agencies
in educating the public to prevent and identify
computer crime, including infringement of copyrighted
works over the Internet;
(3) educate and train State and local law enforcement
officers and prosecutors to conduct investigations and
forensic analyses of evidence and prosecutions of
computer crime, including infringement of copyrighted
works over the Internet;
* * * * * * *
(e) Authorization of Appropriations.--
(1) In general.--There is authorized to be
appropriated to carry out this section $25,000,000 for
each of [fiscal years 2001 through 2004] fiscal years
2009 through 2013.
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Committee Jurisdiction Letters