USTR Releases Annual Special 301 Report on Intellectual Property Rights

Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, issued a March 15 press release on the White House blog titled “Concrete Steps Congress Can take to Protect America’s Intellectual Property.”

The recommendations make some sense, although increasing sentencing guidelines do little to deter crime and many would argue that prevention always makes more sense.  Take a look at Washington’s proposed law for an innovative prevention example.

Among the tough-on-crime-weak-on-prevention recommendations, a few deserve further discussion or outright elimination.

• Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony; and
• Give law enforcement wiretap authority for criminal copyright and trademark offenses.

Streaming illegal materials is a big activity for kids. Why not work with ISPs instead to prevent illegal content from being streamed? Wiretaps? For streaming media? Shouldn’t such a drastic invasion of privacy be authorized only in rare, criminal matters?

One interesting additional protection is also worth noting.

“We recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations which, in part, will allow copyright owners to obtain overseas royalties that are now denied to them.”

Currently, U.S. artists are not permitted to collect overseas royalties when radio stations abroad transmit their work. (Because they are not granted these rights in the U.S., they can’t claim them abroad, even though nationals of other countries have that right.) The U.S. stands alone among industrialized nations in not recognizing a public performance right in sound recordings. Harmonizing U.S. Copyright laws would level the playing field and would (in my opinion) make a lot of sense.

An unintended consequence of the Uruguay Round Agreements Act of 1994 (URAA) is that it restored copyright to a number of foreign works that had been in the public domain. The petitioners in Golan v. Holder are a group of orchestra conductors, archivists, and film distributors who had previously performed, recorded, adapted and distributed thousands of public domain foreign works.  What was perfectly legal before URAA is now illegal copyright infringement.

Does URAA (specifically Section 514) violate the Progress clause and the 1st Amendment where it repossesses works that are in the public domain?  According to the 10th Circuit, it does not.  The 10th circuit found that the Government had demonstrated a substantial interest in protecting American copyright holders’ interests abroad, that Section 514 is narrowly tailored to advance that interest, and that Congress had the authority to extend copyright to works that were in the public domain. However, the Supreme Court has agreed to review the matter.

On its face removing works from the public domain seems a bit like giving national parks to private individuals.  It also implicates certainty concerns for artists.  If I create an adaptation of a work in the public domain, what happens to my work if the copyright to the original work is suddenly restored?  Perhaps the Supreme Court will split the baby and allow artists who have relied on the public domain status of existing works to continue their use.  It promises to be an interesting case to watch.