Section 522 of Modified Intellectual Property Enforcement Act introduced

On February 7 2007 US Senators George Voinovich and Evan Bayh introduced Section 522 of the Modified Intellectual Property Rights Enforcement Act, which is intended to create a single interagency body to combat IP counterfeiting and work with international agencies to create a task force of foreign countries to track IP thieves and their enablers.

The bill includes a number of findings by the US Congress concerning the economic, employment, health and safety costs, as well as Homeland Security threats attributable to counterfeiting and piracy of the IP rights of the nation's innovators, entrepreneurs and workers. Noting that "no less than nine US government agencies bear responsibility for supporting IP rights", Section 522 repeals Section 653 of the Treasury and General Government Appropriations Act (15 USC 1128) and establishes the Intellectual Property Enforcement Network (IPEN), made up of the deputy director from the Office of Management and Budget (OMB), the deputy attorney general, and deputy secretaries for homeland security, treasury, commerce and state and a deputy of the US Trade Representative (USTR) and other members of IPEN deemed "necessary and appropriate".

Day-to-day operation of IPEN is to be carried out by a coordinator for IP enforcement appointed by the president. The coordinator is tasked with developing annual budgets and drafting and submitting to Congress and the president a strategic plan and an annual report on IPEN's enforcement and coordination activities. The principal duties of the IPEN coordinator will be (i) to establish policies to eliminate counterfeit and pirated goods, identify those who traffic in and finance the trafficking of such goods, share information among the relevant agencies, disrupt and terminate piracy networks, assist other countries to enforce IP rights and work with like-minded countries to establish international standards for IP enforcement, and (ii) to protect US intellectual property overseas, work with similar networks in foreign countries to create an international IP task force, and focus on networking with countries that protect and enforce IP rights with the same seriousness as the United States and are not on the priority watch list issued by the USTR.

Each of the agencies that make up IPEN are mandated to share information, coordinate civil and criminal actions and to use information that is acquired to investigate, arrest and prosecute wrongdoers, assist the Department of Homeland Security and Department of Justice in seizing and destroying counterfeit and pirated goods, assist the USTR in taking action against countries that violate World Trade Organization rules on intellectual property, trade agreements or treaties to which the United States is a signatory. In addition, the agencies are requested to consult with industry and industry associations, as well as writers, artists and labour unions that suffer from counterfeiting and piracy.

The IPEN coordinator and director of OMB must, within six months of enactment and, thereafter, every two years, submit a Strategic Plan to the president and Congress setting forth, among other things, goals and priorities, threat analysis, methods and performance measures, and on an annual basis, submit a report on:

  • progress in establishing an international task force;

  • progress made with similar foreign IP enforcement networks;

  • the manner in which relevant domestic agencies are cooperating; and

  • the reasons for admitting or denying entry into the international task force.

This legislation will be monitored for future developments.

Russell Falconer, Baker Botts LLP, New York

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