Today (June 20, 2013), the Office of the Intellectual Property Enforcement Coordinator (IPEC) released its 2013 Joint Strategic Plan on Intellectual Property Enforcement [PDF].
Here’s a little background: Victoria Espinel is the chief officer of IPEC and serves the White House on matters of IP enforcement. In this capacity, she is tasked with coordinating the many federal agencies that work to prevent copyright infringement and counterfeiting. This covers everything from books, movies, and music to software, designer clothes and potentially harmful consumer items. Espinel’s post at the White House blog provides a good overview of her work and purpose of the Joint Strategic Plan.
Here at FMC, the part of intellectual property we pay the most attention to is copyright.
FMC is pro creative expression, pro artist compensation and pro sustainable innovation. We see intellectual property enforcement as an essential compontent of a healthy music ecology. That’s why we’ve taken part in public filings around the current and previous Joint Strategic Plans, and why we take the time to talk about what they mean for musicians and composers.
Several of the issues that FMC has addressed in our IPEC filings make an appearance in the Plan. These can be boiled down to ongoing efforts to grow the legitimate digital marketplace while maintaining a proper balance between creator protections, free speech and innovation. Easier said than done, but we’re pleased that Espinel is asking what we think are many of the right questions.
As Espinel writes in her opening letter to President Obama:
With respect to the online environment, the Administration believes that when Americans and people around the world are given real choices between legal and illegal options, the vast majority will want to choose the legal option. Accordingly, we encourage the further development and use of legitimate online services as an important part of an effective approach to reducing infringing activity…
….We support and will look for additional ways to encourage and facilitate efforts that will help expand the reach of legitimate alternatives to infringement, including through the development of copyright registries and online databases, micro-licensing arrangements, and other market-driven mechanisms to facilitate smooth and efficient access to content.
IP is a vast area, and its enforcement touches on many sectors and implicates several federal agencies. The Joint Strategic Plan contains suggestions for everything from border inspections to FDA protocols to a comprehensive review of existing enforcement stautes. Our analysis will stick to copyright issues. The following are specific provisions that we believe are most likely to impact the music community, with a dash of context. According to the Plan, IPEC (and the various agencies) will:
-Facilitate voluntary initiatives to reduce online intellectual property infringement
In June of 2011, IPEC announced voluntary “best practices” for payment processors online. The point is to have a process for companies like American Express, Discover, MasterCard, PayPal, and Visa to withdraw their services from sites selling counterfeit or infringing goods. FMC analyzed this voluntary agreement for the music community and pointed out how get involved.
We also closely examined the Copyright Alert System, which grew out of a “memo of understanding” between Internet Service Providers (ISPs) and major labels and film studios. Although these efforts fall under the previous Plan, they point the way forward for IPEC to:
-Reach out to additional sectors (which may include data storage services, domain name registrars, and search engines) and also encourage rightholders to adopt a set of best practices
This basically means that IPEC will continue to work with stakeholders to facilitate further voluntary agreements; we expect this could include online advertising and other areas where infringement can occur. The United States Patent and Trade Office has been tasked with starting a process to assess these initiatives.
-Increase outreach and support to such enterprises through nationwide educational efforts (via Department of Commerce)
The administration and federal agencies are recognizing the need to make IP issues more relevant (and hopefully easier to comprehend). We see education initiatives — government and otherwise — as twofold. First, it’s important to assist the public in understanding the purpose of IP. You can’t respect something you don’t understand. Second, there’s a need to help creators make sense of existing law so that they can make informed choices. FMC does its part with projects like our Artist Revenue Streams research and Money From Music quizzes.
-Improve transparency in intellectual property policymaking
From SOPA to ACTA, recent criticisms of IP lawmaking have included a lack of transparency and/or inclusion in the process. We understand the difficulty of crafting complex policy by committee, especially when potential stakeholders include, you know, the entire internet. Still, we think that the only way to build trust (and achieve support) for IP and copyright initiatives is by making plain the goals and objectives of any proposal, and including more stakeholders —including creators — in the process.
-Improve law enforcement communication with stakeholders
Another recent controversy in IP enforcement concerns the seizing of websites by Immigrations and Customs Enforcement (ICE) — a division of the Department of Homeland Security. Clearly, there is a need to prevent certain sites from profiting from infringement or selling counterfeit and potentially dangerous merchandise. However, there has been some difficulty among enforcers in making a distinction between good guys and bad guys. Many in the music biz are familiar with the record label practice of providing MP3s to taste-making bloggers. But sometimes the legal divisions of these entertainment companies are not able to verify which use has been authorized. We need more transparency and better communication between all parties, as well as recourse for those whose sites may have been unfairly targeted. We’re hoping this goal is a step in that direction.
-Educate authors on “fair use” copyright doctrine
Do you know about fair use? It’s a legal defense against claims of infringement, but it’s hardly the last refuge of IP scofflaws. Fair use is an important part of copyright law, and it gives creators (and everyone else) the ability to make use of copyrighted material in specific instances. But there’s a lot of confusion about the what is or isn’t “fair,” and some would like to pretend there is no such thing. To help clarify, the U.S. Copyright Office will summarize current law and provide general guidance targeted to artists seeking to apply the law to their own situations.
There’s a lot of other stuff in the report, too, including focus areas for individual agencies like the Copyright Office, who are working on FMC interest areas including orphan works and copyright registries. We encourage you to have a closer look.
FMC is very much appreciative of the attention IPEC and Victoria Espinel are paying to IP issues that affect musicians and composers. We are encouraged by the balanced approach laid out in this Joint Strategic Plan and look forward to continuing to work with our friends in the music community to inform its implementation.