Special 301 on steroids? Section 205 of HR 3261, the Stop Online Piracy Act (SOPA) is not just about the Internet

On October 26, 2011, a bipartisan group of members of the U.S. House of Representatives introduced HR 3261, the Stop Online Piracy Act, known as SOPA. While much of the bill deals with "online" piracy," some sections of the bill appear to have nothing to do with the Internet. The bill also creates a new bureaucracy to deal with very broadly defined trade related intellectual property rights issues, including those identified in the annual USTR Special 301 report.

The bill defines intellectual property rights as "the rights of holders of copyrights, patents, trademarks, other forms of intellectual property, and trade secrets."

Section 205 of the bill is titled: "Defending Intellectual Property Rights Abroad." The bill requires the Secretaries of State and Commerce, and the heads of other "appropriate" departments and agencies, "shall ensure that adequate resources are available . . . in any country that is identified under section 182(a)(1) of the Trade Act of 1974 (19 U.S.C. 2242(a)(1)) to ensure—

(A) aggressive support for enforcement action against violations of the intellectual property rights of United States persons in such country;

(B) cooperation with and support for the host government’s efforts to conform its applicable laws, regulations, practices, and processes to enable the host government to honor its international and bilateral obligations with respect to the protection of intellectual property rights;

(C) consistency with the policy and country-specific priorities set forth in the most recent report of USTR under such section 182(a)(1); and

(D) support for holders of United States intellectual property rights and industries whose access to foreign markets is improperly restricted by intellectual property related issues."

For some concrete examples of what section 182(a)(1) of the Trade Act of 1974 involves, see: http://keionline.org/ustr/special301

The bill creates a new bureaucracy to implement the objectives of the act.

The Secretary of State and the Secretary of Commerce, in consultation with the Register of Copyrights, shall appoint at least one intellectual property attaché to be assigned to the United States embassy or diplomatic mission (as the case may be) in a country in each geographic region covered by a regional bureau of the Department of State. The Director of the Patent and Trademark Office shall maintain authority over hiring, personnel ratings, and objectives for the attachés, in consultation with the Secretary of State. Depending on experience and expertise, intellectual property attachés shall be designated as the diplomatic rank in-mission of First Secretary or Counselor.

The new IP attachés:

shall work with United States holders of intellectual property rights and industry to address intellectual property rights violations in the countries where the attachés are assigned.

The attachés "policy goals and priorities shall be consistent with USTR’s reports under section 182(a)(1) of the Trade Act of 1974."

The work of the attachés will be the subject of annual reports to Congress.

The Intellectual Property Enforcement Coordinator shall include in the annual report submitted under section 314 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8114) on the activities of the advisory committee established under section 301 of that Act (15 U.S.C. 8111) information on the appointment, designation for assignment, and activities of all intellectual property attachés of any Federal department or agency who are serving abroad.

The bill was sponsored by Lamar Smith (R-Texas), and so far (November 6, 2011) has attracted 20 cosponsors.

Republicans

  • Smith, Lamar(R-TX-21)
  • Amodei, Mark E. [R-NV-2]
  • Blackburn, Marsha [R-TN-7]
  • Bono Mack, Mary [R-CA-45]
  • Carter, John R. [R-TX-31]
  • Chabot, Steve [R-OH-1]
  • Gallegly, Elton [R-CA-24]
  • Goodlatte, Bob [R-VA-6]
  • Griffin, Tim [R-AR-2]
  • King, Peter T. [R-NY-3]
  • Marino, Tom [R-PA-10]
  • Nunnelee, Alan [R-MS-1]
  • Ross, Dennis [R-FL-12]
  • Terry, Lee [R-NE-2]
  • Watt, Melvin L. [R-NC-12]

Democrats

  • Bass, Karen [D-CA-33]
  • Berman, Howard L. [D-CA-28]
  • Conyers, John, Jr. [D-MI-14]
  • Deutch, Theodore E. [D-FL-19]
  • Schiff, Adam B. [D-CA-29]
  • Wasserman Schultz, Debbie [D-FL-20]
  • Watt, Melvin L. [D-NC-12]

The text of Sec. 205 of the bill follows:

SEC. 205. DEFENDING INTELLECTUAL PROPERTY RIGHTS ABROAD.

(a) Resources To Protect Intellectual Property Rights.—

(1) POLICY.—The Secretary of State and the Secretary of Commerce, in consultation with the Register of Copyrights, shall ensure that the protection in foreign countries of the intellectual property rights of United States persons is a significant component of United States foreign and commercial policy in general, and in relations with individual countries in particular.

(2) DEDICATION OF RESOURCES.—The Secretary of State and the Secretary of Commerce, in consultation with the Register of Copyrights, and the heads of other appropriate departments and agencies, shall ensure that adequate resources are available at the United States embassy or diplomatic mission (as the case may be) in any country that is identified under section 182(a)(1) of the Trade Act of 1974 (19 U.S.C. 2242(a)(1)) to ensure—

(A) aggressive support for enforcement action against violations of the intellectual property rights of United States persons in such country;

(B) cooperation with and support for the host government’s efforts to conform its applicable laws, regulations, practices, and processes to enable the host government to honor its international and bilateral obligations with respect to the protection of intellectual property rights;

(C) consistency with the policy and country-specific priorities set forth in the most recent report of USTR under such section 182(a)(1); and

(D) support for holders of United States intellectual property rights and industries whose access to foreign markets is improperly restricted by intellectual property related issues.

(b) New Appointments.—

(1) APPOINTMENTS AND ADMINISTRATION.—The Secretary of State and the Secretary of Commerce, in consultation with the Register of Copyrights, shall appoint at least one intellectual property attaché to be assigned to the United States embassy or diplomatic mission (as the case may be) in a country in each geographic region covered by a regional bureau of the Department of State. The Director of the Patent and Trademark Office shall maintain authority over hiring, personnel ratings, and objectives for the attachés, in consultation with the Secretary of State. Depending on experience and expertise, intellectual property attachés shall be designated as the diplomatic rank in-mission of First Secretary or Counselor.

(2) REGIONS DEFINED.—The geographic regions referred to in paragraph (1) are the following:

(A) Africa.

(B) Europe and Eurasia.

(C) East Asia and the Pacific.

(D) The Near East.

(E) South and Central Asia and the Pacific.

(F) The Western Hemisphere.

(3) DUTIES.—The intellectual property attachés appointed under this subsection shall focus primarily on intellectual property matters, including the development, protection, and enforcement of applicable law. Each intellectual property attaché shall work, in accordance with guidance from the Director, and in coordination with appropriate staff at the Departments of Commerce and State and the Copyright Office, to advance the policy goals and priorities of the United States Government. Those policy goals and priorities shall be consistent with USTR’s reports under section 182(a)(1) of the Trade Act of 1974. The intellectual property attachés shall work with United States holders of intellectual property rights and industry to address intellectual property rights violations in the countries where the attachés are assigned.

(c) Priority Assignments.—

(1) IN GENERAL.—Subject to paragraph (2), in designating the United States embassies or diplomatic missions where attachés will be assigned under subsection (b), the Secretary of State and the Secretary of Commerce shall give priority to countries where the activities of an attaché are likely to achieve the greatest potential benefit in reducing intellectual property infringement in the United States market, to advance the intellectual property rights of United States persons and their licensees, and to advance the interests of United States persons who may otherwise be harmed by violations of intellectual property rights in those countries.

(2) ASSIGNMENTS TO PRIORITY COUNTRIES.—In carrying out paragraph (1), the Secretary of State and the Secretary of Commerce shall consider assigning intellectual property attachés—

(A) to the countries that have been identified under section 182(a)(1) of the Trade Act of 1974 (19 U.S.C. 2242(a)(1)); and

(B) to countries of critical economic importance to the advancement of United States intellectual property rights and interests.

(d) Training.—The Secretary of State and the Secretary of Commerce shall ensure that each intellectual property attaché appointed under subsection (b) is fully trained for the responsibilities of the position before assuming duties at the United States embassy or diplomatic mission to which the attaché is assigned.

(e) Coordination.—The activities of intellectual property attachés under this section shall be determined in consultation with the Intellectual Property Enforcement Coordinator. The Director shall assist in coordinating the policy priorities and activities of the intellectual property attachés and oversee administrative and personnel matters.

(f) Training And Technical Assistance.—

(1) CONSISTENCY.—Using existing resources, all training and technical assistance provided by intellectual property attachés appointed under subsection (b), or under other authority, relating to intellectual property enforcement and protection abroad shall be designed to be consistent with the policy and country-specific priorities set forth in the most recent report of USTR under section 182(a) of the Trade Act of 1974.

(2) ROLE OF IPEC.—Such training and technical assistance programs shall be carried out in consultation with the Intellectual Property Enforcement Coordinator. The Director shall assist in coordinating the training and technical assistance programs conducted by intellectual property attachés.

(g) Activities In Other Countries.—In the case of countries that are not identified under section 182(a)(1) of the Trade Act of 1974, the activities of Federal departments and agencies with respect to intellectual property rights in those countries, intellectual property programs and outreach of the United States Government in those countries, and training and technical assistance programs of the United States Government relating to intellectual property in those countries may be conducted to the extent they are consistent with compelling commercial or foreign policy interests of the United States.

(h) Reports To Congress.—The Intellectual Property Enforcement Coordinator shall include in the annual report submitted under section 314 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8114) on the activities of the advisory committee established under section 301 of that Act (15 U.S.C. 8111) information on the appointment, designation for assignment, and activities of all intellectual property attachés of any Federal department or agency who are serving abroad.

(i) Definitions.—In this section:

(1) DIRECTOR.—The terms “Director of the Patent and Trademark Office” and “Director” mean the Under Secretary for Intellectual Property and Director of the Untied States Patent and Trademark Office.

(2) INTELLECTUAL PROPERTY ENFORCEMENT.—The term “intellectual property enforcement” has the meaning given that term in section 302 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8112).

(3) INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR.—The term “Intellectual Property Enforcement Coordinator” means the Intellectual Property Enforcement Coordinator appointed under section 301 of the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (15 U.S.C. 8111).

(4) INTELLECTUAL PROPERTY RIGHTS.—The term “intellectual property rights” means the rights of holders of copyrights, patents, trademarks, other forms of intellectual property, and trade secrets.

(5) USTR.—The term “USTR” means the United States Trade Representative.

(6) UNITED STATES PERSON.—The term “United States person” means—

(A) any United States resident or national;

(B) any corporation, partnership, other business entity, or other organization, that is organized under the laws of the United States; and

(C) any foreign subsidiary or affiliate (including any permanent foreign establishment) of any corporation, partnership, business entity, or organization described in subparagraph (B), that is controlled in fact by such corporation, partnership, business entity, or organization.

(j) Authorization Of Appropriations.—The Secretary of State and the Secretary of Commerce shall provide for the training and support of the intellectual property attachés appointed under subsection (b) using existing resources.