US PRO-IP Act Shows Signs of Compromise

On October 13, President Bush signed a controversial bill that makes some important modifications to the existing American copyright and trademark regimes.  The Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act  toughens civil penalties for movie and music piracy and beefs up criminal sanctions for counterfeiters.  Additionally, the bill creates a new office called the ‘International Intellectual Property Enforcement Coordinator’ (which some have called the IP Czar) that reports directly to the President. Since there has already been some discussion about the potential impacts of this bill elsewhere (such as herehere, and here) – but notably not much from American law professors – , I’ll keep my comments to observations on the copyright lawmaking process.

As is typical with copyright legislation, the stakeholders are many, and as such, there was much debate as to what should and should not be included in the bill.  Though some critics of the bill still see it as unnecessary or excessive, it is worth noting that other critics were able to get their message through.  Specifically, the Electronic Frontier Foundation notes the following omissions from the final bill:

  • Higher damages for filesharing – the original bill allowed the content owners to seek statutory damages per infringed song, but that provision has been removed.  The former rule of restricting statutory damages to per album still applies. 
  • Vast government IP enforcement bureaucracy – the original language in the bill gave the IP Czar “explicit authority to hire, fire, and create new bureaucracies for intellectual property enforcement.”  This power to create a bureaucracy has have been removed, although the position still remains.
  • Pro Bono government lawyers – the bill redrafted by the Senate enabled the Attorney General to file civil suits on behalf of rightsholders.  Upon objection by the Department of Justice that government lawyers would become pro bono lawyers for rightsholders, this provision was dropped.

Nevertheless, some provisions that were objected to still remain, such as a provision that makes it easier to seize equipment even if it does not belong to the pirate.  The fear is that the provision may have the effect of punishing individuals not involved in the actual act of infringement.  However, the idea is that these other individuals will help to make sure that infringing activity does not happen in the first place.

As can be seen, this piece of legislation, like most, was a product of compromise.  While not all may agree with the measures taken, or the potential side effects, what is clear is that the government tried to take into account the interests of those involved.  This is indeed a positive sign for an area of law that impacts so many. 

As Canadian copyright reform will likely heat up again in the near future, I hope the Canadian government will take heed, and open up the lines of communications so that all interested parties may get their voices heard on these important issues.