Continuing our examination of S.3325, the PRO-IP bill, we're going to look at two separate provisions that I believe are interrelated. The first of these is Sec. 105 of the new bill, Importation and Exportation; the second is Sec. 303, Joint Strategic Plan.
Don't Bring It In, Don't Take It Out - Sec. 105
Sec. 105 amends Sec. 602(a) of the Copyright Act (17 U.S.C. § 602), formerly Infringing Importation of Copies or Phonorecords. Importing infringing works is considered, along with unauthorized importation of legally made works, to be an infringement of the exclusive distribution right (given in 17 U.S.C. § 106(3)). That provision has been in the Copyright Act since 1976. The new bill adds another way to infringe this right: exporting infringing works.
My initial reaction upon reading this was, "oh, wow, they're trying to help developing countries by doing what they can to limit the amount of pirated materials entering those countries." After all, the Nigerian Copyright Commission's recent study of piracy in Nigeria found the US to be the fourth largest source of pirated goods in Nigeria (tied with India, and falling far behind Singapore, China and Malaysia.) [See Survey of Copyright Piracy in Nigeria, The Ford Foundation (2008), p. 49.]
As I continued looking at the new bill, I realized just how over-generous my reaction was. The more likely real reason for the inclusion of exportation is much more self-serving. I believe Sec. 303 holds a clue.
Never Fear, the Americans are Here! - Sec. 303
The goal of the Joint Strategic Plan outlined in Sec. 303 is to fight piracy, reduce the amount of infringing goods in existence... in the world. It includes a subsection entitled "Enhancing Enforcement Efforts of Foreign Governments." (§ 303(f).) This includes giving "training and technical assistance to foreign governments." It's not a new idea. The current Copyright Act provides for this a bit, just not in such infringement-fighting focused language. (See 17 U.S.C. § 701(b)(3).) The US government has been engaging in foreign trainings on IP law for some time. (Description of the program already in existence can be found on the Intellectual Property Rights Training Program website.) A DOJ workshop in Nigeria last year on "Investigative Skills for Intellectual Property Crimes" discussed amending the Nigerian Copyright Act. In Zambia, Intellectual Property Rights trainings are conducted by the USPTO. (Page 7 of link.)
So, if this provision doesn't really add anything new, why did it catch my attention? Because of Sec. 105.
Simon Says - Sec. 105 in light of Sec. 303
Section 105's inclusion of exportation is probably less for the US and more for developing countries. Developing countries, developing their intellectual property laws, turn to countries like the US for examples, guidance and assistance. It will be much easier for the United States to control the movement of infringing material made in other countries if the DOJ can say "look, we have this provision in our copyright law, you should put it in yours, too." Several directors at the Nigerian Copyright Commission have told me that when the US comes in with suggestions for IP laws, the countries "just eat them right up."
Other countries enacting similar laws would benefit the US in several ways. Not only could this lower the amount of infringing materials moving around the global market, it would also shift the burden of enforcement from the US to countries where the infringing works originate. The pirates will be handled at the export stage, before they've had a chance to import goods into the US.
I neither condemn nor condone these provisions; I'm fairly agnostic towards them. While I do think it's a bit sneaky, I also think it's a fairly decent approach. There is a sense of legitimacy added when a country is willing to do itself what it asks others to do. Additionally, neither of these provisions are creating any drastic changes. The US government will continue to work with other countries in the area of IP laws, perhaps with just a little more focus on piracy. And trading in infringing goods is still illegal, it's just illegal in both directions now. What I'm interested to see is the impact this provision has on the development of global IP standards.