The National Intellectual Property Law Enforcement Coordination Council Annual Report 2000

The National Intellectual Property Law Enforcement Coordination Council Annual Report 2000

Submitted to The President of the United States of America and The United States Congress by The Council:

U.S. Department of Justice (Criminal Division) (Co-Chair)

U.S. Department of State (Bureau of Economic, Business, and Agricultural Affairs)

Office of the United States Trade Representative

U.S. Customs Service

U.S. Department of Commerce (International Trade Administration)

and

U.S. Copyright Office (Advisor to the Council)

National Intellectual Property Law Enforcement Coordination Council

Year 2000 Report to Congress

TABLE OF CONTENTS

Introduction 3

Annual Report

I. Legislation 4

1. NIPLECC Established - Reporting Requirement 4

II. NIPLECC Year 2000 Meeting Schedule 6

3. Federal Register Notice #1 and Summary of Public Comments 7
4. Federal Register Notice #2 - Public Meeting 16
5. Individual Agency Reports 18

A. United States Patent and Trademark Office 18

1. U.S. Department of Justice - Criminal Division 24
2. U.S. Department of State - Bureau of Economic, Business,

and Agricultural Affairs 29

3. Office of the United States Trade Representative 31
4. U.S. Customs Service 35
5. U.S. Department of Commerce - International Trade Administration 38
6. U.S. Copyright Office 40

Appendix

Tab A. The Council 44

(Biographies of Principals and List of NIPLECC Agency Staff)

Tab B. Council Documents - Agendas and Related Background Papers 55

Tab C. Federal Register Notice #1 - Industry Responses 95

1. Bristol-Myers Squibb Company 96
2. Center for Information, Technology & Society 98
3. International AntiCounterfeiting Coalition 102
4. International Intellectual Property Alliance 113
5. International Trademark Association 123
6. Software & Information Industry Association 129
7. J.D. Sallen (individual) 134

Tab D. Federal Register Notice #2 - Public Meeting Transcript 136

Tab E. Interagency Database of IP Training 181

Tab F. USTR Special 301 List - Summary 208

Introduction

On September 29, 1999, President William J. Clinton signed into law the Treasury/Postal Appropriations Bill, Public Law No. 106-58, Section 653, which created the "National Intellectual Property Law Enforcement Coordination Council" (the Council). Subsection (e) of the law requires that "[t]he Council shall report annually on its coordination activities to the President, and to the Committees on Appropriations and on the Judiciary of the Senate and the House of Representatives." This document constitutes the Council's first Annual Report.

This Report contains all of the official documents generated by the Council and the agency staffs, and all of the written public submissions to the Council since its creation. This Report reflects the joint agency effort to define and refine the Council's mission, and to identify areas in which interagency coordination could improve the Government's performance in intellectual property law enforcement.

This Report is intended to serve as a basis on which the next Council can begin its work. The Report itself makes no specific recommendations, since the new Administration will define its own priorities in this ongoing process. However, it is hoped that the work of this first Council will demonstrate the importance of the Government's responsibilities in this area, and the need for close coordination among its lead agencies, and between the Government and the private sector.

Submitted January 2001

Editor's Note: This Report is, in large part, a collection of previously circulated documents prepared by the government or the private sector. Those documents are reproduced verbatim in the Report, including any errors, omissions, etc. present in the originals.

NIPLECC First Annual Report

I. Legislation

1. NIPLECC Established - Public Law No. 106-58, Section 653

Treasury and General Government Appropriations Act, 2000,

Pub. L. No. 106-58, 113 Stat. 430, 480-81 (1999)

An Act

Making appropriations for the Treasury Department, the United States Postal Service, the Executive Office of the President, and certain Independent Agencies, for the fiscal year ending September 30, 2000, and for other purposes.

Sec. 653.

(a) Establishment. There is established the National Intellectual Property Law Enforcement Coordination Council (in this section referred to as the "Council"). The Council shall consist of the following members--

(1) The Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, who shall serve as co-chair of the Council

(2) The Assistant Attorney General, Criminal Division, who shall serve as co-chair of the Council.

(3) The Under Secretary of State for Economic and Agricultural Affairs.

(4) The Ambassador, Deputy United States Trade Representative.

(5) The Commissioner of Customs.

(6) The Under Secretary of Commerce for International Trade.

(b) Duties. The Council established in subsection (a) shall coordinate domestic and international intellectual property law enforcement among federal and foreign entities.

(c) Consultation Required. The Council shall consult with the Register of Copyrights on law enforcement matters relating to copyright and related rights and matters.

(d) Non-derogation. Nothing in this section shall derogate from the duties of the Secretary of State or from the duties of the United States Trade Representative as set forth in section 141 of the Trade Act of 1974 (19 U.S.C. 2171), or from the duties and functions of the Register of Copyrights, or otherwise alter current authorities relating to copyright matters.

(e) Report. The Council shall report annually on its coordination activities to the President, and to the Committees on Appropriations and on the Judiciary of the Senate and the House of Representatives.

(f) Funding. Notwithstanding section 1346 of title 31, United States Code, or section 610 of this Act, funds made available for fiscal year 2000 and hereafter by this or any other Act shall be available for interagency funding of the National Intellectual Property Law Enforcement Coordination Council.

2. FBI Membership

The Federal Bureau of Investigation became a statutory Member of the Council upon passage of the 2001 Justice Appropriations Bill in December 2000.

correction 1/17/01

II. NIPLECC Principals' Year 2000 Meeting Schedule

4. Federal Register Notice #1 and Summary of Public Comments

(Written Submissions Appear in the Appendix at Tab C)

United States Patent and Trademark Office

Docket No. [ ]

Request for Comments on Issues Related to Policies and Agenda for the National Intellectual Property Law Enforcement Coordination Council

AGENCIES: U.S. Department of Justice and U.S. Patent and Trademark Office,

ACTION: Notice of request for public comments.

SUMMARY: The Members of the National Intellectual Property Law Enforcement Coordination Council (the Council) seek public comment on issues associated with the Council's mission. Interested members of the public are invited to present written comments on any of the topics outlined in the Supplementary Information section of this Notice.

DATES: All comments are due by June 9, 2000.

ADDRESSES: Persons wishing to offer written comments should address those comments to Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Box 4, Washington, D.C. 20231, marked to the attention of Elizabeth Shaw. Comments may also be submitted by facsimile transmission to (703) 305-7575, or by electronic mail through the Internet to elizabeth.shaw2@uspto.gov. All comments will be maintained for public inspection in Room 902 , Crystal Park II, 2121 Crystal Drive, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Elizabeth Shaw by telephone at

(703) 305-1033, by fax at (703) 305-7575, or by mail marked to her attention and addressed to Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Box 4, Washington, D.C. 20231.

SUPPLEMENTARY INFORMATION:

On September 29, 1999, President William J. Clinton signed into law the Treasury/Postal Appropriations Bill, Public Law No. 106-58, Section 653, which created the "National Intellectual Property Law Enforcement Coordination Council" (the Council). The Council's mission is "to coordinate domestic and international intellectual property law enforcement among federal and foreign entities." The Council is required to "report annually on its coordination activities" to the President and to the Appropriations and Judiciary Committees of the House and Senate.

The statutorily designated Council Members, listed according to their order of mention in the statute, are: the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Co-Chair) (under Public Law No. 106-113, the head of the United States Patent and Trademark Office is the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office) (The Honorable Q. Todd Dickinson); the Assistant Attorney General, Criminal Division (Co-Chair) (The Honorable James K. Robinson); the Under Secretary of State for Economic, Business, and Agricultural Affairs (The Honorable Alan P. Larson); the Deputy United States Trade Representative (Ambassador Richard Fisher); the Commissioner of Customs (The Honorable Raymond W. Kelly); and the Under Secretary of Commerce for International Trade (Acting Under Secretary Robert S. LaRussa). In addition, the statute directs the Council to "consult with the Register of Copyrights (The Honorable Marybeth Peters) on law enforcement matters relating to copyrights and related matters and rights."

The full Council and their staffs have met on several occasions to begin shaping the Council's agenda. This Request for Public Comment is intended to give intellectual property rights owners (and other interested parties) an opportunity to recommend steps in furtherance of the Council's mission.

Interested members of the public are invited to present written comments on issues relevant to the policy-related objectives listed below. This forum is not intended to serve as an opportunity for the public to air individual case-related complaints unless they are relevant to broader law enforcement policy issues.

3. Guidelines for Written Comments

Written comments should include the following information:

Parties offering written comments should also provide their comments in machine-readable (electronic) format. Such submissions may be provided via Internet electronic mail or on a 3.5" floppy disk formatted for use in either a Macintosh or MS-DOS based computer. Machine-readable (electronic) submissions should be provided as unformatted text (e.g., ASCII or plain text) or as formatted text in one of the following formats: Microsoft Word (Macintosh, DOS, or Windows versions); or WordPerfect (Macintosh, DOS, or Windows versions).

Information provided pursuant to this notice will be made part of a public record and may be made available via the Internet. In view of this, parties should not submit information that they do not wish to be publicly disclosed or made electronically accessible. Parties who rely on confidential information to illustrate a point are requested to summarize, or otherwise submit, the information in a way that will permit its public disclosure.

Dated: ____________, 2000 ____________________________________

Q. Todd Dickinson

Under Secretary of Commerce for Intellectual Property and

Director of the United States Patent and Trademark Office

____________________________________ James K. Robinson

Assistant Attorney General for the Criminal Division

United States Department of Justice

DEPARTMENT OF COMMERCE 3510-16

United States Patent and Trademark Office

Extension of Deadline on Request for Comments on Issues Related to Policies and Agenda for the National Intellectual Property Law Enforcement Coordination Council

AGENCY: U.S. Patent and Trademark Office, Co-Chair, National Intellectual Property Law Enforcement Coordination Council.

ACTION: Extension of deadline on notice of request for public comments.

SUMMARY: On Monday, June 5, 2000, the Members of the National Intellectual Property Law Enforcement Coordination Council (the Council) published a Notice seeking public comment on issues associated with the Council’s mission (65 Fed. Reg. 35611 (2000)). Interested members of the public were invited to present written comments on the topics outlined in the Supplementary Information section of the Notice by June 20, 2000. This Notice extends the deadline for submission of comments to July 7, 2000.

DATES: All comments are due by July 7, 2000.

ADDRESSES: Persons wishing to offer written comments should address those comments to Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Box 4, Washington, D.C. 20231, marked to the attention of Elizabeth Shaw. Comments may also be submitted by facsimile transmission to (703) 305-7575, or by electronic mail through the Internet to elizabeth.shaw2@uspto.gov. All comments will be maintained for public inspection in Room 902 , Crystal Park II, 2121 Crystal Drive, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Elizabeth Shaw by telephone at

(703) 305-1033, by fax at (703) 305-7575, or by mail marked to her attention and addressed to Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Box 4, Washington, D.C. 20231.

Dated: ____________, 2000

____________________________________

Q. Todd Dickinson

Under Secretary of Commerce for

Intellectual Property and Director of the

United States Patent and Trademark Office

NIPLECC Federal Register Notice Industry Response Summary

August 4, 2000

In general, respondents favor a clear distinction between enforcement-related operational issues, clearly the province of the enforcement agencies (DOJ, FBI, USCS), and broader policy and support activities, such as training and coordination with international organizations, that could be improved through interagency efforts among all NIPLECC Members. The chart below divides the responses into Domestic and International Issues, and further subdivides them into substantive categories, such as Legislation, Training, and Industry Outreach. Finally, next to each recommendation is the combined staff's opinion regarding who should address the recommendation. All references to specific respondents have been deleted, and references to particular rights have been deleted where the recommendation should apply equally to copyrights and trademarks (no respondents addressed patent issues).

Key: Department of Justice (DOJ); Federal Bureau of Investigation (FBI); U.S. Customs Service (USCS); State Department (DOS); Commerce Department (DOC); U.S. Trade Representative (USTR); U.S. Patent and Trademark Office (USPTO); Copyright Office (LOC); Intellectual Property (IP); DOJ/FBI/USCS IP Enforcement Initiative (IP Initiative); Individual Agency or Interagency Effort (X); Not appropriately addressed at this time and/or in this forum (---).

IV. Federal Register Notice #2 - Public Meeting

FEDERAL REGISTER

Vol. 65, No. 198

Notices

DEPARTMENT OF COMMERCE (DOC)

United States Patent and Trademark Office (USPTO)

Notice of Meeting of the National Intellectual Property Law Enforcement Coordination Council

65 FR 60619

DATE: Thursday, October 12, 2000

ACTION: Notice of meeting.

SUMMARY: The National Intellectual Property Law Enforcement Coordination Council (Council) will be holding a public meeting. Interested members of the public are invited to attend the meeting.

DATES: The public meeting will be held on Monday, November 27, 2000, beginning at noon and ending no later than 2 P.M. Those wishing to attend the meeting must pre-register by close of business on Friday, November 17, 2000.

ADDRESSES: The November 27, 2000, meeting will be held in the Main Auditorium at the U.S. Department of Commerce, Herbert C. Hoover Building, 14th Street and Constitution Avenue, NW., Washington, DC. Those interested in attending should pre-register by submitting their name and telephone contact number either by electronic mail through the Internet to Elizabeth.Shaw2@uspto.gov or by facsimile sent to the attention of Elizabeth Shaw at 703-305-7575.

Transcripts of the meeting will be available after January 5, 2001, and will be maintained for public inspection in the Executive Library of the USPTO, Crystal Park Two, Room 900A, 2121 Crystal Drive, Arlington, Virginia.

FOR FURTHER INFORMATION CONTACT: Elizabeth Shaw by telephone at 703-305-1033; by facsimile at 703-305-7575; by electronic mail at elizabeth.shaw2@uspto.gov; or by mail addressed to Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Box 4, United States Patent and Trademark Office, Washington, DC 20231.

SUPPLEMENTARY INFORMATION: On Monday, June 5, 2000, the Council published a Notice of Request for Public Comments (65 FR 35611 (2000)) regarding issues related to the Council's policies and agenda. The November 27, 2000, meeting will introduce the Council to the public and give those who submitted comments (respondent industry speakers) regarding the issues identified in the notice an opportunity to elaborate on their responses.

I. Issues To Be Discussed

Respondent industry speakers have been invited to address the Council regarding law enforcement and policy issues related to the Council's mission and how the Council and the intellectual property industries can work together to improve intellectual property law enforcement in the U.S. and abroad.

The Government speakers will discuss the Council's activities and the individual agencies' current and future intellectual property law enforcement-related activities.

II. Meeting Format

The Council will provide a brief overview of its activities and introduce its Members and other affiliated agencies. Each agency will then have an opportunity to make a brief presentation on its law enforcement-related efforts. Respondent industry speakers will be given up to fifteen (15) minutes to present their remarks. The exact duration of each presentation will depend upon the final number of speakers. A question and answer session will follow the final industry presentation. The public is invited to be present for the entire program; however, only Council Members and respondent industry speakers may participate orally in the program.* Industry speakers may provide a written copy of their testimony for inclusion in the record of the proceedings. These remarks should be provided in electronic format no later than November 27, 2000.

A schedule providing the approximate starting time for each Government and industry speaker will be distributed the morning of the day of the hearing. Speakers are advised that the schedule for testimony will be subject to change during the course of the hearing. Information that is provided pursuant to this notice will be made part of a public record and may be available via the Internet. In view of this, parties should not submit information that they do not wish to be publicly disclosed or made electronically accessible. Parties who would like to rely on confidential information to illustrate a point are requested to summarize or otherwise submit the information in a way that will permit its public disclosure.

Dated: October 5, 2000.

Q. Todd Dickinson,

Under Secretary of Commerce for Intellectual Property and Director of the United

States Patent and Trademark Office.

[FR Doc. 00-26182 Filed 10-11-00; 8:45 am]

*At the meeting, the public was invited to address the panel.

THE NATIONAL INTELLECTUAL PROPERTY

LAW ENFORCEMENT COORDINATION COUNCIL (NIPLECC)

PUBLIC MEETING

Monday, November 27, 2000

U.S. Department of Commerce Auditorium

FINAL AGENDA (Meeting Transcript at Tab D)

12:00 - 12:05 – Welcome, Introductions, NIPLECC Overview - NIPLECC Co-Chairs:

The Honorable Q. Todd Dickinson - Under Secretary of Commerce for Intellectual Property and

The Honorable Kevin V. DiGregory - Deputy Assistant Attorney General for the Criminal Division,

12:05 - 12:45 – Individual Agency Presentations - 5 minutes each - in alphabetical order:

12:05 – 12:10 – Department of Commerce - Principal Deputy Under Secretary Timothy J. Hauser

12:10 – 12:15 – Copyright Office - The Honorable Marybeth Peters, Register of Copyrights

12:15 – 12:20 – Customs Service - Commissioner Raymond Kelly (Assistant Commissioner John Varorone)

12:20 – 12:25 – Department of Justice - Deputy Assistant Attorney General Kevin DiGregory

12:25 – 12:30 – Federal Bureau of Investigation - Deputy Assistant Director Thomas Kubic

12:30 – 12:35 – United States Patent and Trademark Office - Under Secretary Q. Todd Dickinson

12:35 – 12:40 – Department of State - Assistant Secretary E. Anthony Wayne, Economic and Business Affairs

12:40 – 12:45 – Office of the United States Trade Representative - John Desrocher, Director, Office of Services,

Investment, and Intellectual Property

12:45 – 12:50 - Breakdown/Set-up

12:50 - 1:40 – Industry Presentations - 10 minutes each - in alphabetical order:

12:50 - 1:00 - International Anti-Counterfeiting Coalition - Mr. Timothy P. Trainer, President

1:00 - 1:10 - International Intellectual Property Alliance -

Ms. Maria Strong, Vice-President and Associate General Counsel, accompanied by

Mr. Stevan Mitchell, VP, Intellectual Property Policy Interactive Digital Software Association

Mr. Michael Huppe, Anti-Piracy Counsel, Recording Industry Association of America

1:10 - 1:20 - International Trademark Association - Mr. Maxim H. Waldbaum, Salans, Hertzfeld & Heilbronn

1:20 - 1:30 - Pharmaceutical Researchers and Manufacturers of America (on behalf of Bristol-Myers Squibb and the

Ms. Susan Kling Finston, Assistant Vice President for Intellectual Property, International Division

1:30 - 1:40 - Software and Information Industry Association -

Mr. Mark Bohannon, General Counsel and Vice President for Government Affairs

1:40– 1:55 – NIPLECC to Industry Questions and Industry to NIPLECC Questions

1:55 – 2:00 – Final Agency Comments and Wrap-up (USPTO and DOJ)

V. Individual Agency Reports

1. United States Patent and Trademark Office

1. Summary of USPTO Mission

Public Law 106-113, which was signed by the President on November 29, 1999, established the United States Patent and Trademark Office (USPTO) as a performance-based organization under the policy direction of the Secretary of Commerce. As an agency responsible for promoting industrial and technological progress in the United States, and strengthening the national economy, the USPTO’s mission is to (1) administer the patent and trademark laws, (2) advise the President, through the Secretary of Commerce on national and certain international intellectual property policy issues, and (3) advise Federal departments and agencies on matters of intellectual property policy in the U.S. and intellectual property protection in other countries.

In addition, the USPTO provides guidance, as appropriate, to foreign governments and international intergovernmental organizations on matters of intellectual property protection. The agency also has authority to conduct programs, studies, exchanges, or services regarding domestic and international intellectual property law, and the effectiveness of intellectual property protection domestically and throughout the world.

The USPTO employs over 5,000 full time equivalent (FTE) staff to support its major functions -- the examination and issuance of patents and the examination and registration of trademarks - and, at present, 30 people in the Office of Legislative and International Affairs as well as numerous people in our Solicitor's Office deal with the broad range of international issues.

2. Activities in IPR Enforcement

(a). USPTO International Enforcement-Monitoring and Compliance Program

The USPTO monitors the implementation of bilateral, regional and multilateral international agreements with a view to an effective IP enforcement system. We want to make sure that any IP enforcement system incorporates the minimum civil, administrative, border and criminal requirements of the Agreement on Trade Related Aspects of Intellectual Property Rights, or TRIPS.

As part of this monitoring program, the USPTO works closely with various U.S. Government (USG) agencies and industry groups to determine whether a country’s laws incorporate the minimum enforcement standards as required by bilateral and multilateral agreements (MOU’s, NAFTA, TRIPS, etc.), and whether IP owners are, in practice, receiving the levels of protection and enforcement for which the laws provide. The USPTO also provides technical advice to the USTR regarding IP enforcement compliance, and regularly supports the USTR in its bilateral negotiations by providing IP enforcement expertise. January 1, 2000 was the deadline for compliance with TRIPS for approximately 70 developing member countries.

In response to the increased global need, the USPTO is increasing its monitoring efforts to assist countries in complying with the systemic enforcement requirements of TRIPS. Comparatively, enacting laws to comply with the Agreement’s substantive provisions is the easy part - creating an effective IP enforcement system to that gives practical value to IP rights is a much more complex and difficult task.

Part of our compliance program includes assisting countries to design IP enforcement programs that use existing infrastructures and laws to meet TRIPS compliance. Toward that end, the USPTO has developed extensive questionnaires and other techniques for assuring that it gains the fullest picture of present IP protection and enforcement efforts in any given country. Since monitoring compliance with TRIPS necessitates a substantive review of a country’s domestic trademark, patent, copyright and trade secret laws, its civil and criminal codes, and any customs codes, the USPTO is able to bring its expertise to bear on such critical issues as transparency of law, and enforcement infrastructure requirements.

(b). IP Enforcement Training

In addition to its enforcement-monitoring program, the USPTO conducts and participates in numerous international enforcement training programs.

Interagency

On the interagency level, the USPTO has worked with the State Department - INL, EB, and Public Diplomacy sections, Commerce Department (CLDD), USAID, the Copyright Office and DOJ, FBI, and Customs, to assist in training foreign law enforcement officials to meet the systemic enforcement requirements of TRIPS. These programs provide high-level government and law enforcement officials with an in-depth review of TRIPs’ substantive and enforcement provisions, a primer on the characteristics of an effective IP enforcement system, and practical advice on implementing effective enforcement programs for both hard goods and in the digital environment. Over the past year, the USPTO has worked with other agencies and with industry to develop and conduct programs in China, Taiwan, Mexico, Panama, Brazil, Italy, Oman, and Nepal.

World Intellectual Property Organization Training

The USPTO also has worked extensively with the World Intellectual Property Organization (WIPO), an intergovernmental organization headquartered in Geneva, Switzerland. As one of the 16 specialized UN agencies, WIPO is responsible for promoting the protection of intellectual property throughout the world through cooperation among member States.

WIPO also administers various multilateral treaties dealing with the legal and administrative aspects of intellectual property.

In addition to representing the U.S. government at WIPO’s Standing Committee on Trademarks and at other meetings, in the enforcement area, the USPTO partners with the WIPO Worldwide Academy to provide high-level policy makers and other government officials from developing countries with technical assistance and training on creating a TRIPS-compliant intellectual property enforcement regime. The training programs assist government officials understand the components of creating an integrated enforcement system to combat counterfeiting and piracy in the physical world and tackle the enforcement challenges posed by the Internet. The USPTO also partners with WIPO’s Cooperation for Development Bureaus to provide technical assistance and training on developing a TRIPS-compliant legal system and enforcement regime to high-level government officials from specific regions of the world, including Africa and Asia.

To improve IP enforcement training programs and work more effectively with developing countries to identify weaknesses in their legal framework and enforcement regimes, the USPTO and WIPO are spear-heading a project to change IP enforcement training from a lecture-based to a more interactive problem-solving approach. In this effort, the USPTO has worked with other USG agencies to develop materials utilizing a fact-pattern approach that can be used in multi-disciplinary training programs and in train-the-trainer programs that will be key to regional training efforts. We recently completed phase one of the project and will focus on expanding its uses.

Regional IP Enforcement Training

The USPTO also cooperates with various regional entities to conduct training programs, including APEC, ASEAN, and the UN/Economic Commission for Europe's IP Advisory Group.

The conferences and seminars hosted by APEC and its member countries on implementing the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), include both substantive and enforcement-related IP issues.

Another example is our work with the UN/ECE, a United Nations organization designed to foster dialogue and cooperation on economic and other issues between its members, which includes countries of North America, Western, Central and Eastern Europe, and Asia. The USPTO represents the U.S. in the UN/ECE’s Advisory Group on the Protection and Implementation of Intellectual Property Rights for Investment. The IP Advisory Group is a public-private sector partnership, which was created to assist the transitional economies of Central and Eastern Europe and the Commonwealth of Independent States (CIS), through training programs and other technical assistance, create an effective IP legal framework and enforcement regime. The USPTO has supported their efforts in Latvia, Lithuania, and Estonia, and will support their upcoming efforts in Poland, Russia and Ukraine.

3. Protecting IP in the Digital Age

Protecting intellectual property in the Digital Age presents added challenges that must be addressed - yesterday. This is a difficult time for the industries most ravaged by IP crimes on the Internet. As more and more of the world's population uses the Internet, the growth of IP crimes will threaten the economic viability and the very existence of our industries.

In addition to our domestic legislative work in this area, we are attacking this problem globally through our training programs. In all of our programs, we address the need for creating an international legal framework by emphasizing the need for ratification of the WIPO Copyright Treaty and the WIPO Performers and Phonogram Treaty. Our programs also address the practical issues raised by enforcing intellectual property on the Internet, by including presentations by FBI, DOJ, and Customs Service and industry Internet crime experts.

During 2000, the USPTO began assisting developing countries to create effective IP enforcement systems to protect IP rights in the Digital Era. We partnered with WIPO to cosponsor regional seminars focusing on Internet enforcement for countries in Sub-Saharan West Africa and for countries in the Asia-Pacific Region. Closer to home, in September 2000, the USPTO hosted the "Symposium of the Americas: Protecting Intellectual Property in the Digital Age" in which several NIPLECC agencies participated.

The Symposium concentrated on cutting-edge issues policy in the protection of IP on the Internet and in other digital environments and provided an opportunity for high-ranking government intellectual property officials and members of the business and intellectual property communities in the Western Hemisphere to discuss and formulate an agenda for cooperation in the critical area of intellectual property enforcement.

In the Spring of 2001, we will conduct a similar program for all of Europe - this program will be cosponsored by the UN/ECE IP Advisory Group, and in cooperation with the U.K. Industrial Property Office. We will include USG and industry representatives in that program as well.

4. Domestic IP Enforcement-Related Activities

Domestically, the USPTO has supported our sister NIPLECC agencies by contributing substantive experts and expertise to law enforcement agencies' training programs and initiatives.

We have participated in Customs Service and FBI programs for agents, and we supported the Department of Justice's quest for increased sentencing in IP criminal cases, and the USG's efforts to persuade the G8 to focus its attention on global IP crime. We look forward to future opportunities to work with our law enforcement counterparts on appropriate legislative, training, and other initiatives.

5. USPTO and the Future of IP Enforcement

The USPTO will continue to conduct training abroad and will work independently and in partnership with other USG agencies, with our industries, and with international organizations to improve the quality and effectiveness of our training programs. To that end, we will add personnel to our Office of Legislative and International Affairs who will be dedicated to developing and assisting in the delivery of training programs.

We will work to develop standardized enforcement curricula for international training - meaning training that will emphasize an integrated systems approach – civil, administrative, and criminal enforcement. We will stress the need for (1) developing training materials in different media and different languages, (2) for expanding the base of trainers by developing programs for USG, foreign, and industry trainers, and (3) for identifying competent private sector trainers (domestic and international) who can be drawn into more active roles in curriculum development and training delivery.

In addition, the USPTO was charged by the Inspector General of the Commerce Department with developing methods for measuring the effectiveness and impact of training, including working with industry to develop programmatic follow-up activities to test the commitment and capability of trained officials.

The USPTO and the USG have been able to accomplish quite a bit over the past few years, but we're just getting started. The USPTO commits to the activities I described and to better USG coordination through the State Department-chaired Committee and through other means, bringing together the crucial expertise of all of our agencies and industries to better assist our trading partners in developing and maintaining effective enforcement regimes.

1. Summary of DOJ Mission

The Department of Justice is charged with investigating and prosecuting criminal laws protecting three types of intellectual property: copyrighted works, trademarks, and economic proprietary information. Primary investigative and prosecutorial responsibility within the Department rests with the U.S. Attorney’s Offices and the Federal Bureau of Investigation (FBI), with the support and coordination of the Criminal Division’s Computer Crime and Intellectual Property Section. In addition to enforcing traditional laws protecting intellectual property, the Department also has played a pivotal role in the development and application of more contemporary laws protecting rights holders, such as the Economic Espionage Act (EEA), which criminalizes the theft of trade secrets, and the No Electronic Theft (NET) Act, criminalizing not-for-profit, unlawful reproduction and distribution of copyrighted works.

In addition to investigating and prosecuting IPR crimes, the Department of Justice, along with the Customs Service, Patent & Trademark Office, U.S. Trade Representative, and Copyright Office, participates in training investigators and prosecutors domestically and abroad; participates in the USTR’s Special 301 process of evaluating the adequacy of our trading partners’ IPR criminal laws and enforcement regimes; participates in the cataloguing and review underway of the U.S. government’s IPR training programs abroad; evaluates the need for legislative changes to its key statutes and the Federal Sentencing Guidelines and proposes legislation to fill inadequacies or gaps; and undertakes a number of international activities to promote cooperative enforcement efforts and to boost our trading partners’ efforts to improve their substantive laws and enforcement regimes.

2. Major Programmatic Activities in IPR Enforcement

The continuing growth of the information industries and their significance to the U.S., and global economy, coupled with increasing volume and sophistication of counterfeiting and piracy crimes, prompted the Attorney General to develop a comprehensive approach to enforcing laws protecting intellectual property rights. The Intellectual Property Rights Enforcement Initiative was announced on July 23, 1999, and has both domestic and international components.

(a). Domestic Enforcement Initiative

Domestically, the initiative builds upon the primacy of the United States Attorney’s Offices role as enforcers of federal criminal law, by designating seven leadership district to comprise the Initiative. The current seven districts are the Eastern and Southern Districts of New York, the Districts of New Jersey and Massachusetts as well as the Southern District of Florida and the Northern and Central Districts of California. These Districts, working cooperatively with the Department of Justice, CCIPS, the FBI and the Customs Service, are dedicated to making criminal intellectual property enforcement a priority.

The major objectives of the domestic initiative (described in detail at www.cybercrime.gov/ip.html.) are to: increase the number and quality of criminal IP investigations and prosecutions; increase specialized intellectual property training courses for investigators and prosecutors through various venues such as the National Advocacy Center, the FBI Academy, as well as assisting in developing training programs for state and local officials in conjunction with the National Cybercrime Training Partnership; streamline the victim-industry referral process and develop relationships with the affected industry to better co-ordinate and broad based response to intellectual property infringement; and vigorously enforce the law through use of forfeiture provisions and fix the inadequate Sentencing Guidelines for intellectual property crimes.

The Department of Justice has successfully prosecuted a number of significant intellectual property rights cases, with more cases now being investigated or awaiting prosecution than at any previous time. The 1999 Attorney General’s Accountability Report to Congress indicates that during Fiscal Year 1999, 108 cases were filed against 161 separate defendants charging felony violations of the criminal copyright and trademark statutes. These do not include a number of cases that have been charged under the economic espionage statute.

The Department of Justice expects figures in all categories (copyright/ trademarks/trade secrets) to increase for Fiscal Year 2000. The FBI reports, for example, that as of October 2000, it had 529 intellectual property cases open for investigation, whereas it had 179 cases under investigation in October 1997. Between July 23 (the date of the announcement) and October 31, 2000, 354 new IP-related investigative matters have been opened by the Bureau. These figures reflect nationwide efforts, and are not confined to progress made by the seven key jurisdictions. Further, there were 117 indictments in IP cases in FY 2000, more than double the number of convictions in FY 1999. There were 82 convictions in FY 2000, up from 63 in FY 1999.

Effective May 1, 2000, with the support of the Department of Justice, the applicable Sentencing Guideline (§2B5.3) was overhauled to substantially increase penalties for criminal copyright infringement and trademark counterfeiting. In most cases, the sentencing court can now use the retail value of the infringed-upon (legitimate) item to calculate loss. The new guideline also includes enhancements for offenses involving the manufacture, importation, or uploading of infringing items, and permits upward departure for offenses committed in connection with national or international organized criminal enterprises. The Department anticipates that the ability to seek greater penalties will result in increased prosecutions in this area.

 

(b). International Efforts

Realizing the significant international aspects of intellectual property enforcement, the Department of Justice has concentrated its international efforts to boost the visibility and attention given to IPR enforcement in four important areas: coordinating international training efforts to address specific enforcement-related issues; identifying bilateral and multilateral fora to promote investigative cooperation; coordinating its efforts with other agencies charged with promoting effective IPR enforcement regimes; and integrating the latest empirical data and trends involving transborder IP crime into the Department’s programmatic activities and into the USG’s threat assessments undertaken as part of the international crime control strategy.

In bilateral and multilateral settings, the Attorney General and Deputy Attorney General have consistently urged their law enforcement counterparts to address this growing threat by updating substantive criminal laws, dedicating appropriate, well-trained resources, and working with industry to stay abreast of latest trends. Where appropriate, the U.S. government has encouraged our foreign counterparts to create specialized units devoted to investigating and prosecuting IP crime. For example, the Department of Justice and FBI have joined with the participated in various Department and U.S.T.R.-sponsored bilateral meetings with the Government of Mexico to encourage the passage of deterrent penalties for IPR crimes and the dedication of adequate resources to combat them.

In addition to these political efforts, the Department of Justice has joined with the State Department, Customs Service, FBI, USPTO, the Commerce Department’s Commercial Law Development Program, and the private sector to develop and deliver quality training programs to all relevant enforcement components in the targeted countries. Further, the Department, including the FBI, has participated in the Special 301 process in order to ensure that concerns of the Justice Department and law enforcement are reflected in the review.

The Department of Justice continues to support the State Department’s on-going efforts to identify existing IP programs and coordinate future programs. With each of its sister law enforcement agencies and the substantive IP agencies, the Department is urging the development of multiple methods for delivery of training programs and materials, and seeking the inclusion of intellectual property enforcement in curricula at international training academies, including the International Law Enforcement Academies (ILEAs), and in training provided by inter-governmental organizations.

As noted, the Department is committed to addressing the myriad of international aspects of intellectual property crime. In September, 2000, the U.S. (DOJ, FBI, and Customs) hosted the G8 Lyon Group Law Enforcement Experts Meeting on Trafficking in Counterfeit and Pirated Merchandise, which focused on the threat to public health and safety posed by such products and the involvement of organized criminal activity and groups trafficking in these products. At the Senior Law Enforcement Experts Meeting on Transnational Organized Crime (Lyon Group) meeting in Hiroshima in November, 2000, the Lyon Group unanimously agreed to explore having G8 countries share strategic intelligence information, and to sponsor an annual review of trends in the field.

3. Major Achievements

In addition to the highlights previously listed, the Department would briefly note the following achievements in the area of intellectual property enforcement. The Department of Justice has and continues to investigate and prosecute many significant intellectual property cases ranging from international sound recording piracy cases to prosecution of defendants for trademark counterfeiting of fraudulently-obtained baby formula. Additionally, the Department has conducted successful prosecutions under the No Electronic Theft Act as well as obtaining over twenty convictions for violations of the Electronic Espionage Act.

To educate and assist federal prosecutors working on IP cases, the Computer Crime and Intellectual Property Section produces training materials and provides IP training as part of its annual Computer and Telecommunications Coordinator (CTC) conference for Assistant U.S. Attorneys from across the nation. This year, CCIPS completed an updated and improved version of the prosecution manual, Prosecuting Intellectual Property Crimes, for distribution to all U.S. Attorney’s Offices. The manual addresses alternative prosecution theories, asset forfeiture, Internet piracy, and numerous other emerging issues. It is available at www.cybercrime.gov/ipmanual.html.

Beginning this year, additional training courses on IP investigation and prosecution have been offered at the National Advocacy Center (NAC). The NAC is developing an IP Crime Seminar that is designed for Assistant United States Attorneys. In addition, IP issues were included as part of the Internet Fraud seminar offered at the NAC beginning in FY 2000.

Finally, the FBI has elevated IP crime as one of its white collar priorities, thus ensuring that investigative resources will be devoted to such crimes. To ensure that its agents are prepared to investigate these relatively new crimes, the FBI has, during the last two years, significantly increased the amount of IP crime training for its agents. Furthermore, in recognition of the international scope of this crime problem, the FBI has increased the amount of international training it does in the area of IP crime. For example, in September, 2000, the FBI sponsored a one-week IP crime conference in Hanoi, Vietnam for 125 Vietnamese law enforcement officials. The FBI hosted a similar one-week IP crime conference in Panama City, Panama for more than 40 Panamanian law enforcement officers in April, 2000. The FBI has incorporated IP crime training into the white collar crime curriculum at the International Law Enforcement Academies (ILEAs). The FBI trained more than 50 law enforcement officers from nine countries at the Bangkok, Thailand ILEA in early 2000. Additionally, the FBI assisted the Patent and Trademark Office and the United States Trade Representative in training government officials in IP enforcement in the Czech Republic and Italy during FY 2000.

5. Industry Outreach

The Department of Justice relies on the information and expertise of the copyright and trademark industries, and of individual rights holders, to help accomplish its core mission in enforcing criminal statutes protecting intellectual property rights. Industry often is the source of referrals for potential criminal cases and provides evidence and witnesses to support investigative and prosecutorial activities. Industry also is in a position to share information on trends in counterfeiting and piracy, particularly in view of the sweeping technological changes affecting the copyright and trademark industries. In addition, industry is critical to law enforcement in the provision of training to investigators and prosecutors, both in the United States and in training programs involving our trading partners’ law enforcement personnel. The Department also looks to industry to provide country-specific information that is valuable in preparing for bilateral and multilateral law enforcement meetings. Finally, industry views are helpful in informing the Department’s views on pending legislation, including legislation the Department may propose to fill gaps in the statutes available to prosecute IPR crimes.

To ensure that industry makes a meaningful contribution in each of these vital aspects of the Department’s domestic and international missions, DOJ attorneys and FBI agents are in regular contact with industry representatives and trade associations. Department attorneys, FBI agents, and Customs agents met with industry prior to the launch of the domestic enforcement initiative in July, 1999, and have had regular contact since then.

Note: The Federal Bureau of Investigation became a statutory Member of the NIPLECC in December 2000.

correction 1/17/01

C. U.S. Department of State - Bureau of Economic, Business, and Agricultural Affairs

1. Summary of State Department Mission

The Department of State has long been engaged on crosscutting issues related to the protection of intellectual property rights, trade policy and IPR enforcement. The Office of Intellectual Property (IPC) in State's Bureau of Economic and Business Affairs (EB) and the Bureau for International Narcotics and Law Enforcement Affairs (INL) have the lead on these issues. By direction of the President, the Departments of Justice, State and Treasury jointly issued the 1998 Crime Control Strategy, instructing U.S. agencies to, "protect intellectual property rights by enhancing foreign and domestic law enforcement efforts to curtail the flow of counterfeit and pirated goods, and by educating consumers." State's enforcement mission is to combat intellectual property theft worldwide and to help create predictable legal and economic environments overseas so American business interests can prosper. State utilizes its established contacts within the international law enforcement community, working with the FBI, the Customs Service, and the Justice Department, to accomplish these objectives.

Pursuant to the Foreign Assistance Act of 1961, Congress designates funding for "anti-crime" purposes (including intellectual property theft) to be distributed at the direction of State's Bureau of International Narcotics and Law Enforcement Affairs. State relies on a number of indicators for guidance on where to direct funds for intellectual property protection. These include the adequacy of a country's intellectual property laws, its willingness to implement intellectual property reform, input from U.S. Embassies, interagency input through State's Intellectual Property Working Group, and a country's status on USTR's Special 301 Report. In the past, State has directed funds to the Justice Department for training of Russian judges and prosecutors, to the FBI for training investigators in Vietnam and Central America, and to the Commerce Department's Commercial Law Development Program in-country training programs. State also has funded other comprehensive programs such as the International Law Enforcement Academies (ILEA) in Budapest and Bangkok.

2. Activities in IPR Enforcement

The Bureau of Economic and Business Affairs and the Bureau of International Narcotics and Law Enforcement Affairs co-chair an interagency Intellectual Property Working Group. The objective of the Working Group is to coordinate all USG-funded intellectual property training. State's role in the Working Group has been to present to the participating agencies the international economic and political ramifications that might affect the choice of training priorities and to determine whether the training proposals meet the foreign policy objectives of the U.S. State personnel at over 200 embassies and consulates overseas provide an invaluable service by communicating to foreign governments the importance the USG places on protection of intellectual property and the specific steps a government might have to take to comply with its international obligations. Embassies also communicate to the Working Group objective "on-the-ground" assessments of the IP climate in a particular countries.

The IP Working Group establishes priorities for countries in need of USG-funded training and technical assistance by analyzing the information provided by embassies, the U.S. private sector, and participating USG agencies. The group also considers the decision criteria developed for the Special 301 and TRIPs reviews. For those countries designated to receive funded training and technical assistance, the Working Group develops responsive and tailored programs to address both enforcement problems and other TRIPs-related trade policy concerns.

The Working Group covers country-specific issues, international programs and specific project proposals. State maintains a database of past and on-going training conducted by USG agencies and the U.S. private sector. The Working Group serves as an invaluable forum for information sharing and creative problem solving. Because of EB's responsibilities in the area of trade policy and INL's longstanding relationship with the law enforcement community, the group is uniquely positioned to coordinate all U.S. government sectors engaged in international intellectual property matters and to ensure that all efforts are complimentary and consistent.

1. Summary of USTR Mission

Unlike other NIPLECC members, USTR is neither a law enforcement nor a training organization. Nonetheless, the U.S. Trade Representative plays a lead role in intellectual property rights enforcement on the international stage via the Special 301 process. Pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act of 1994, under Special 301 provisions, the USTR must identify those countries that deny adequate and effective protection for intellectual property rights or deny fair and equitable market access for persons that rely on intellectual property protection. Countries that have the most onerous or egregious acts, policies or practices and whose acts, policies or practices have the greatest adverse impact (actual or potential) on the relevant U.S. products must be designated as "Priority Foreign Countries."

Priority Foreign Countries are potentially subject to an investigation under the Section 301 provisions of the Trade Act of 1974. USTR may not designate a country as a Priority Foreign Country if it is entering into good faith negotiations or making significant progress in bilateral or multilateral negotiations to provide adequate and effective protection of IPR.

The USTR must decide whether to identify countries each year within 30 days after issuance of the National Trade Estimate Report. In addition, the USTR may identify a trading partner as a Priority Foreign Country or remove such identification whenever warranted.

The USTR has created a "Priority Watch List" and "Watch List" under Special 301 provisions. Placement of a trading partner on the Priority Watch List or Watch List indicates that particular problems exist in that country with respect to IPR protection or enforcement or market access for persons relying on intellectual property. Countries placed on the Priority Watch List are the focus of increased bilateral attention concerning the problem areas.

2. Activities

On May 1, United States Trade Representative Charlene Barshefsky announced the results of the 2000 "Special 301" annual review which examined in detail the adequacy and effectiveness of intellectual property protection in over 70 countries. Ambassador Barshefsky also announced that, as a result of this year=s Special 301 review, she will initiate World Trade Organization (WTO) dispute settlement consultations with Argentina and Brazil. This brings to 14 the number of intellectual property-related WTO complaints filed by the United States since 1996. Consultations about implementation of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) also may be initiated with other countries in the near future. The Special 301 report also addresses significant concerns in such trading partners as Ukraine, Italy, Israel, Malaysia, India, Korea, Poland, and the West Bank and Gaza, as well as progress in economies such as UAE, Sweden, Mexico, and Macau.

In this year=s review, USTR devoted special attention to proper and timely implementation of the TRIPS Agreement by developing country WTO members, which was required as of January 1, 2000. In addition, USTR continued to focus on two other critically important issues: preventing the production of unauthorized copies of "optical media" such as CDs, VCDs, DVDs, and CD-ROMs, and ensuring that government ministries use only authorized software. Considerable progress has been made over the past year by many developing countries in implementing their TRIPS obligations. USTR also has achieved success again this year in encouraging our trading partners to implement optical media controls and appropriate software management programs. While progress also has been made on improving enforcement in many countries, the unacceptably high rates of piracy and counterfeiting of U.S. intellectual property around the world require on-going vigilance.

Under the Special 301 provisions of the Trade Act of 1974, as amended, Ambassador Barshefsky identified 59 trading partners that deny adequate and effective protection of intellectual property or deny fair and equitable market access to United States artists and industries that rely upon intellectual property protection.

3. Country-Specific Activities

(a). Ukraine

In this year=s report, the USTR identified Ukraine for potential Priority Foreign Country designation. Ambassador Barshefsky stated that the United States has worked with Ukrainian officials over the past several years in an effort to reduce alarming levels of copyright piracy and to improve Ukraine=s overall intellectual property regime. According to estimates from our copyright industry, Ukraine is the single largest source of pirate CDs in the Central and East European region. In June, President Clinton and President Kuchma signed the U.S.-Ukraine Joint Action Plan to Combat Optical Media Piracy in the Ukraine. Regrettably, the Ukraine has failed to live up to the terms of the Plan; the U.S. Government currently is engaged with the Government of Ukraine in an intense effort to resolve this problem. However, Ukraine will be identified as a Priority Foreign Country if it fails to make substantial progress toward eliminating pirate optical media production by year=s end.

Copyright piracy in Ukraine is extensive and enforcement is severely lacking, resulting in increasing unauthorized production and export of CDs and CD-ROMs. U.S. industry estimates that losses to the music industry alone are $210 million. The United States urges the Government of Ukraine to take stronger measures on an urgent basis to address this problem through the implementation of effective optical media production controls and other available means. In addition, a number of Ukraine=s intellectual property laws, especially trademark, patent and copyright, fall short of compliance with the minimum standards set out in the TRIPS Agreement and the 1992 U.S.-Ukraine bilateral trade agreement. It is unclear whether Ukraine protects pre-1973 copyrighted works; it does not provide retroactive protection for sound recordings.

(b). China

For more than a decade, the United States and China have engaged in detailed discussions regarding the improvement of China=s protection of intellectual property rights and market access for products with IPR protection. Although China improved the legal framework for IPR protection based on the 1992 bilateral agreement, enforcement of those laws remains deficient in many areas, causing large losses to U.S. right-holders.

Progress has clearly been made. For example, Chinese authorities have shut down over 100 illegal CD, CD-ROM and VCD production facilities. This effort changed China from an exporter of pirated material to being the import target for pirated product from other countries in the region. Other economies in the region, including Hong Kong, Macau, Singapore and others have faced an increase in piracy as production moved from China to other locations. As a result, the Administration's enforcement efforts have also concentrated on these economies.

Chinese enforcement of copyrights and trademarks is still uneven from province to province. Of concern is the unauthorized use of software by private enterprises (end user piracy). Piracy rates of entertainment software (game compact discs) and other audiovisual products are also very high. Although strong steps have been taken to address the production of pirated software, CDs and VCDs, pirated product remains available at the retail level.

The U.S. Government has also been pressing China about the growing major problem of trademark counterfeiting, particularly in the area of consumer goods, protection for unregistered well-known trademarks and effective enforcement against counterfeiters. U.S. companies report that the counterfeiting of their products by Chinese companies has increased dramatically.

No single Chinese government entity has been coordinating anti-counterfeiting enforcement efforts nation-wide. Such coordination is urgently needed. We were pleased that the Chinese government announced on October 26 a nation-wide campaign of this nature. However, we are concerned that it is scheduled to end on January 1, 2001. Moreover, right-holders complain that Chinese administrative penalties are too low and the threshold for initiating criminal investigations against counterfeiting is too high for either to serve as an effective deterrent. The U.S. Government is following this matter very closely.

4. Country Designations

Ambassador Barshefsky again designated Paraguay and China for "Section 306 monitoring" to ensure both countries comply with the commitments made to the United States under bilateral intellectual property agreements. Special concern was expressed that Paraguay=s efforts have not been sufficient in recent months, and further consultations will be scheduled.

Ambassador Barshefsky placed 16 trading partners on the "Priority Watch List": Argentina, the Dominican Republic, Egypt, the European Union, Greece, Guatemala, India, Israel, Italy, Korea, Malaysia, Peru, Poland, Russia, Turkey, and Ukraine. She also placed 39 trading partners on the "Watch List." Countries that were not mentioned in the report last year but are on the Watch List this year include: Armenia, Azerbaijan, Kazakhstan, Latvia, Lithuania, Moldova, Tajikistan, Turkmenistan, and Uzbekistan.

On November 8, 2000, the USTR announced the results of out-of-cycle reviews of Italy and El Salvador. USTR also announced resolution of TRIPS implementation concerns in Poland and Ireland. Italy was moved from the Priority Watch List to the Watch List as a result of its passage of a new anti-piracy law. USTR decided not to place El Salvador on the Watch List in recognition of its stepped up IPR enforcement efforts. Poland was moved from the Priority Watch List to the Watch List because of amendments to its copyright law which brought that country into compliance with its TRIPS obligations regarding sound recordings. Ireland was removed from the Watch List after it adopted new copyright legislation.

1. Summary of Customs Service Mission

The United States Customs Service, established in 1789, is a law enforcement agency of the Department of the Treasury. Customs is the primary enforcement agency protecting the Nation’s borders and as such is charged with enforcing the laws of the United States, safeguarding the revenue and fostering lawful international trade and travel. For example, in addition to combating the flow of illegal narcotics, Customs provides the Nation with its second largest source of revenue, returning $22.1 billion to the U.S. Treasury in 1999.

As a law enforcement agency within the Department of the Treasury, Customs is vested with the powers of search, seizure and arrest. As such, Customs is charged with enforcing criminal laws pertaining to trademark and copyright infringement. However, in addition to its law enforcement powers, U.S. Customs is an administrative agency with the legal authority, under the Tariff Act of 1930, the Lanham Act of 1946 and the Copyright Act of 1976, to make infringement determinations regarding federally registered trademark and copyrights. Although Customs has no legal authority to make determinations relative to patent infringement, it does have the authority to exclude from entry into the U.S. goods that the U.S. International Trade Commission has determined infringe a valid and enforceable U.S. patent.

Through its enforcement powers combined with its administrative authority to make trademark and copyright infringement determinations, Customs is able to combat the flow of counterfeit and piratical goods into the United States. Customs may on its own accord initiate enforcement actions to detain or seize infringing merchandise, or alternatively, may proceed on the basis of information supplied by rights owners. Enforcement actions represent the combined efforts of many disciplines within Customs. In some instances, IPR enforcement actions may also be undertaken in cooperation with other government agencies.

Rights owners who so wish can record their trademarks and copyrights with Customs. Customs’ IPR recordation system, as embodied in its electronic IPR database, was designed to make IPR information relating to imported merchandise readily available to Customs personnel. While Customs enforces both recorded and non-recorded trademarks and copyrights, Agency policy mandates that resources be focused primarily on recorded rights.

2. Major Programmatic Activities

Customs’ commitment to combating IPR violations is reflected in the Agency’s annual seizure statistics. In the past three fiscal years (FY 97-99) Customs has made over 9,000 seizures with an estimated domestic value of over $228 million. The most commonly seized items during this period were media (e.g., software, music and video CDs), computers and parts thereof, wearing apparel and toys and video games. In fiscal year 2000, there were 3,244 seizures with an estimated domestic value of $45.3 million. The major commodity seized, as a percentage of value, was media (17%), followed respectively by toys and electronic games (13%), computers and computer parts (10%), wearing apparel (10%), cigarettes (9%) and watches (9%). More detailed enforcement statistics are available on the U.S. Customs website at www.customs.gov.

In order to identify and stop shipments of IPR infringing merchandise from entering the U.S., Customs conducts annually, a number of targeted IPR "interventions." Intervention initiatives focus on specific enforcement issues. For example, in fiscal year 2000, Customs conducted interventions targeting: handbags; identifying elements (rivets, labels, hang tags, buttons, boxes, etc.); certain smaller ports of entry identified as having a significant level of imports at risk for IPR infringement; and U.S. addresses known or suspected to be harboring IPR violators.

The creation of the National Intellectual Property Rights Coordination Center (IPR Center) is the U.S. government's latest initiative in the fight against IPR crime. The IPR Center, opened in February 2000, is a multi-agency center located at the U.S. Customs Headquarters in Washington, D.C. Investigative and analytical personnel from Customs and the Federal Bureau of Investigation provide the core staffing. The IPR Center coordinates the efforts of all federal agencies actively involved in the investigation of IPR violations.

The Center’s responsibilities include: serving as a clearinghouse for information and investigative leads provided by the general public and industry, as well as being a channel for law enforcement to obtain cooperation from industry; integrating domestic and international law enforcement intelligence with industry information relating to IPR crime; disseminating IPR intelligence for appropriate investigative and tactical use; and developing enhanced investigative, intelligence and interdiction capabilities. Particular emphasis is placed on investigating major criminal organizations and those using the Internet to facilitate IPR crime.

Another recent U.S. Customs initiative that targets IPR crimes is the Customs CyberSmuggling Center (C3). U.S. industries, particularly in the areas of computer software, motion pictures and sound recordings, are increasingly at risk from cyber-pirates. Accordingly, Customs established the C3 in order to focus the Agency’s resources more effectively on Internet crimes, including IPR violations.

Another major Customs IPR initiative in 2000 was the publication of an IPR Handbook. The Handbook is a compendium of information and procedures on IPR matters and is designed to promote uniformity in the border enforcement of intellectual property rights. Intended as a guide for Customs port personnel, the Handbook includes, among other things, a general overview of Customs’ role in IPR enforcement, pertinent Customs Directives, sections on penalties and seizures, and information on targeting, enforcement evaluation teams and counterfeiting techniques. It is anticipated that a public version of the IPR Handbook will be made available via the Customs web site in 2001.

Customs has conducted or participated in international IPR border enforcement training sponsored by a number of U.S. Government Agencies and international organizations including the Department of State’s Bureau of International Narcotics and Law Enforcement, the Commerce Department’s Commercial Law Development Program, APEC, and the World Customs Organization, among others.

An ongoing, but vital element of Customs IPR enforcement plan, is the recordation of federally registered trademarks and copyrights in Customs’ electronic IPR database. The database now contains over 23,000 records.

3. Industry Outreach

U.S. Customs supports increased cooperation with industry in both the domestic and international arenas with regard to the border enforcement of intellectual property rights. In the international arena, for example, U.S. Customs, as a member of the World Customs Organization, participates in a joint WCO Customs/Business training program, the aim of which is to enhance the effectiveness of Customs Administrations in combating intellectual property rights violations.

As a general matter, Customs works with industry on an ongoing basis to combat IPR violations. For example, in March 2000, Customs met with various industry associations involved in the IPR field, including the Recording Industry of America, the Business Software Alliance, the Motion Picture Association of America, the Software Industry Association, the Coalition to Advance the Protection of Sports Logos, and the Imaging Suppliers Coalition. In addition to meeting with rights owners, Customs meets regularly with associations representing the importing community, such as the American Free Trade Association and the American Association of Exporters and Importers.

U.S. Customs routinely includes industry in conducting domestic and international training initiatives relative to the border enforcement of intellectual property rights. For example, in addition to the associations listed above, Customs has worked with companies and organizations such as Microsoft and Underwriters’ Laboratories in conducting international IPR border enforcement training. Customs values the participation of rights owners in its training activities. In response to industry’s concerns - which Customs shared - Customs recently streamlined the process for participation in the agency’s domestic training IPR initiatives. Customs trusts that these changes will prove mutually beneficial.

1. Summary of ITA Mission

The International Trade Administration (ITA) helps U.S. businesses participate fully in the growing global marketplace. The ITA provides practical information to help U.S. businesses export goods and services; ensures that businesses have access to international markets as required by trade agreements; and safeguards businesses from unfair competition from dumped and subsidized imports. ITA is headed by the Under Secretary for International Trade who oversees the operations of ITA's four units: the Commercial Service is the primary point of contact for businesses throughout the United States and the world. A global network of Commercial Officers are prepared to offer assistance at every stage of the exporting process. Trade Development is the government's link to American industry. Industry sector specialists help businesses identify trade opportunities for specific products or services. Import Administration impartially enforces U.S. unfair trade laws, ensuring that businesses face a level playing field in the domestic marketplace. Market Access and Compliance keeps world markets open to products, and includes country specialists and the Trade Compliance Center (TCC). Country specialists can help businesses benefit from our trade agreements with other countries. The TCC monitors and analyzes foreign compliance with 300 + trade agreements and standards of conduct. In working with Commerce country desk officers and other U.S. Government agencies, the TCC helps U.S. firms identify and develop strategies to overcome market access barriers, including the lack of intellectual property rights.

2. Activities in IPR Enforcement

(a). Programmatic Activities

The TCC, in particular, has the coordinating role within Commerce on multilateral and bilateral efforts to promote effective worldwide protection and enforcement for intellectual property rights. The TCC represents Commerce at the meetings of the TRIPS (Trade Related Aspects of Intellectual Property Rights Agreement) Council at the World Trade Organization. The TCC works closely with the Office of the U.S. Trade Representative, the U.S. Patent & Trademark Office of the Commerce Department, State Department’s Intellectual Property and Competition Policy Division, the U.S. Copyright Office, and the private sector in developing and implementing a comprehensive strategy for addressing bilateral and multilateral IP programs. Such programs include the annual Special 301 Review for which the TCC has the responsibility of coordinating Commerce’s position on the status of countries.

The TCC plays a key role in the Industry Consultations Program, sponsored by the U.S. Department of Commerce and the Office of the U.S. Trade Representative (USTR), that includes over 500 industry executives who provide advice and information to the U.S. Government on trade policy matters. The advice received from committees has helped to strengthen the international trading system, and has assisted U.S. Government officials negotiating multilateral and bilateral trade agreements with our trading partners. The program includes sector and functional advisory committees, including the Intellectual Property Rights committee (IFAC 3), which the TCC administers. Membership on the functional committee is made up of industry representatives and representatives from product sector committees. USTR, USPTO and Commerce staffs do a substantial amount of the briefing for the IFACs.

IFAC 3 plays an active role in advising the U.S. Government on intellectual property negotiating objectives and priorities. Advice has been sought on the Free Trade of the Americas Agreement (FTAA); the Asia-Pacific Economic Cooperation; the U.S.-EU TransAtlantic Economic Partnership; and bilateral negotiations and consultations with Korea, Vietnam, and South Africa. Finally, IFAC 3 provides advice to the U.S. Government on negotiating objectives for WTO accessions, and identifies IP concerns in countries that are eligible beneficiaries under the Generalized System of Preference program. The priorities of the IFAC 3 committee include advising the U.S. negotiators on WTO Members’ implementation and compliance of the WTO TRIPS Agreement. In particular, the committee provides advice on WTO TRIPS Council compliance reviews and WTO dispute settlement cases. In addition, IFAC 3 plays an important role in channeling private sector advice into the implementation of the Special 301, particularly with respect to Section 301 investigations on China and Paraguay.

(b). Operational Activities

Operational activities of the TCC include its Compliance Liaison Program and trade compliance hotline. In the Compliance Liaison Program, over 60 trade associations have appointed a representative to serve as a liaison between their members and the TCC. The liaison solicits complaints on market access barriers and agreement compliance problems from members, and notifies the TCC for action. Representatives from the Motion Picture Association, Recording Industry Association of America, Business Software Alliance and American Film Marketing Association are part of the Compliance Liaison Program. The TCC also administers a hotline for U.S. firms to contact when faced with trade barriers. Advice has been provided to several U.S. firms that have faced problems concerning the infringement of intellectual property in China, Taiwan, Israel, Korea, Slovak Republic, and Japan, to name a few. While the parties involved in the intellectual property complaints have generally been private entities as opposed to government actors, the information provided by the compliance program has enabled several of these firms to pursue litigation to enforce their rights under the intellectual property laws of the respective countries.

By statute (Public Law No. 106-58, Section 653(c)), the National Intellectual Property Law Enforcement Coordination Council (NIPLECC) is required to consult with the Register of Copyrights on law enforcement matters relating to copyrights and related matters.

1. Summary of Copyright Office Mission

Generally, the Copyright Office consults with and provides expert assistance to Congress on intellectual property matters and related matters. In this function, the Copyright Office is often responsible for analyzing and assisting in drafting copyright legislation and legislative reports, mediating discussions between interested private parties, testifying in Congressional hearings, and undertaking Congressionally requested studies on copyright and related questions.

Internationally, the Copyright Office advises Congress on compliance with multilateral intellectual property agreements, provides technical expertise in negotiations for international intellectual property agreements and provides technical assistance to other countries developing their own copyright laws.

In addition, the Copyright Office consults with and advises many different Federal agencies, including the Office of the United States Trade Representative and the State Department, on copyright and related matters.

Administratively, the Copyright Office sets copyright policy through rule-making and the administration of compulsory licenses contained in the copyright law.

Specifically, the Copyright Office has a statutory mandate to: (1) Advise Congress on national and international issues relating to copyright, other matters arising under [U.S.C. Title 17], and related matters; (2) Provide information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright, other matters arising under this title, and related matters; (3) Participate in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright, other matters arising under this title, and related matters, including as a member of United States delegations as authorized by the appropriate Executive branch authority; (4) Conduct studies and programs regarding copyright, other matters arising under this title, and related matters, the administration of the Copyright Office, or any function vested in the Copyright Office by law, including educational programs conducted cooperatively with foreign intellectual property offices and international intergovernmental organizations; and (5) Perform such other functions as Congress may direct, or as may be appropriate in furtherance of the functions and duties specifically set forth in [U.S.C. Title 17]."

2. Activities in IPR Enforcement

The Copyright Office is not a law enforcement agency and has no direct role in law enforcement liaison. However, many of the Office’s obligations and responsibilities intersect with activities in the law enforcement arena. For example, the Office works with the Federal Bureau of Investigation and the U.S. Customs Service when necessary to provide information and documentation pertaining to a specific copyright claim that is the subject of an investigation by those agencies. The Copyright Office also advises Congress on copyright legislation regarding law enforcement (ex. "Digital Theft Deterrence and Copyright Damages Improvement Act of 1999").

The Copyright Office does not conduct training in the area of intellectual property law enforcement, although members of the Copyright Office routinely participate in training organized by law enforcement agencies such as the Federal Bureau of Investigation, the Department of Justice and the U.S. Customs Service. Copyright Office staff also participates extensively in international training programs organized by other U.S. agencies and international organizations such as the World Intellectual Property Organization (WIPO) on intellectual property enforcement issues. For example, two members of the Copyright Office recently participated in a week-long training program in India, sponsored by WIPO on the enforcement provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs).

Unrelated to law enforcement training, the Copyright Office conducts and participates in a range of intellectual property training. In light of WTO member countries’ obligations to comply with the TRIPS agreement and the enforcement provisions therein, the Copyright Office has been actively engaged in training so that countries may meet their international obligations and U.S. interests are preserved. Specifically, the Copyright Office participates on training in the areas of: awareness of international standards, as well as the U.S. legal and regulatory environment; substantive legal training on both basic and complex areas of U.S. copyright law; and legal reform and statutory drafting assistance.

Lastly, the Copyright Office hosts a well-regarded workshop every year in conjunction with WIPO. The International Copyright Institute (ICI) was created within the Copyright Office by Congress in 1988 and provides training for high-level officials from developing and newly industrialized countries and encourages development of effective intellectual property laws and enforcement overseas.

(b). Operational activities (e.g., statistical summaries, case-related industry outreach, centers, etc.)

Public and industry outreach on copyright and related matters takes place on both a formal and informal basis. The Copyright Office regularly conducts public hearings on different intellectual property subjects, and maintains on-going informal relationships with most members of the intellectual property community. The Office also maintains an extensive website that includes news-alert services, copies of intellectual property laws and regulations, and public information circulars.

VI.

List of NIPLECC Agency Websites

Additional information on subjects addressed in this Report and on the NIPLECC agencies' general operations can be found on the agencies' websites:

United States Patent and Trademark Office: www.uspto.gov

U.S. Department of Justice: www.usdoj.gov or www.cybercrime.gov (IP and Computer Crime)

U.S. Department of State: www.state.gov

Office of the United States Trade Representative: www.ustr.gov

U.S. Customs Service: www.customs.gov

U.S. Department of Commerce: www.commerce.gov

U.S. Copyright Office: www.loc.gov

  APPENDIX - TAB A

The Year 2000 Council

(Biographies of Council Principals and List of NIPLECC Agency Staff)

Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office Q. Todd Dickinson (Council Co-Chair)

Q. Todd Dickinson was appointed by President Clinton as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office on March 29, 2000. Dickinson had served as Assistant Secretary of Commerce and Commissioner of Patents and Trademarks since November 10, 1999, as Acting Assistant Secretary of Commerce and Acting Commissioner of Patents and Trademarks since January 1, 1999, and as Deputy Assistant Secretary of Commerce and Deputy Commissioner of Patents and Trademarks since June 18, 1998.

In addition to managing the United States Patent and Trademark Office’s (USPTO) operations, Dickinson serves as principal policy advisor to the Clinton Administration and Congress on all domestic and international intellectual property matters. He also serves as co-chair of the National Intellectual Property Law Enforcement Coordination Council, which coordinates domestic and international intellectual property enforcement issues.

Under Dickinson’s leadership, the USPTO is implementing the most sweeping reform in patent law in a half-century and is restructuring itself into a performance-based organization. Other initiatives he has undertaken include making more than two million patents and all registered trademarks and applications freely available on the Internet; implementation of the electronic filing of trademark and patent applications; creation of the Office of Independent Inventor Programs; and the establishment of the Office of Quality Management.

Previously with the Philadelphia-based law firm of Dechert, Price and Rhoads and having served as Chief Counsel for Intellectual Property and Technology at Sun Company, Inc., Dickinson has more than twenty years of experience in the private sector representing a wide-range of clients, from individual inventors to major corporations, on intellectual property protection matters.

A native of Pennsylvania, Director Dickinson earned a B.S. degree in Chemistry from Allegheny College in 1974 and a J.D. from the University of Pittsburgh School of Law in 1977. He is a member of the bars of Pennsylvania, California and Illinois.

USPTO Staff:

Doris Long

U.S. Department of Justice, Assistant Attorney General for the Criminal Division James K. Robinson (Council Co-Chair)

Assistant Attorney General James K. (Jim) Robinson was appointed by President Clinton and confirmed by the United States Senate in June, 1998. In his capacity as Assistant Attorney General for the Justice Department=s Criminal Division, Mr. Robinson supervises a staff of approximately 900 and manages an annual budget which exceeds 100 million dollars.

The work of the Criminal Division includes the investigation and prosecution of cases concerning public corruption, organized crime, labor racketeering, narcotics trafficking, fraud, money laundering, computer crime, espionage, child exploitation, terrorism and violent crimes. The Division also provides assistance to the 94 United States Attorneys offices throughout the United States with respect to matters such as appellate litigation, electronic surveillance, witness protection, international extradition, and mutual legal assistance matters involving foreign countries. The Division is also involved in the Justice Department=s training activities for prosecutors and police personnel throughout the world through its Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT) and its International Criminal Investigative Training Assistance Program (ICITAP).

Mr. Robinson received his Juris Doctor degree magna cum laude from Wayne State University Law School in 1968. He was the Editor-in-Chief of the Wayne Law Review during 1967-68. He was admitted to the bar in his home state of Michigan in 1968. Following a clerkship with Judge George Edwards of the United States Court of Appeals for the Sixth Circuit, Mr. Robinson practiced law with two major Detroit law firms from 1969 to 1977. He was appointed by President Carter in 1977 as the United States Attorney for the Eastern District of Michigan, a post he held from 1977 through 1980.

From 1981 until 1993, Mr. Robinson was a partner with the Detroit law firm of Honigman Miller Schwartz and Cohn where he chaired the firm=s litigation department. He concentrated his practice on complex civil litigation and white-collar criminal defense work.. In 1993 Mr. Robinson was appointed Dean and Professor of Law at Wayne State University Law School, a post he held until his appointment as Assistant Attorney General in 1998. While Dean, Mr. Robinson taught courses in Evidence and Introduction to Lawyering and co-authored a three-volume treatise and a courtroom handbook on the Michigan Rules of Evidence published by West Publishing Company.

During 1990-91, Mr. Robinson served as President of the State Bar of Michigan. He is Member-at-Large of the council of the Criminal Justice Section of the American Bar Association for 2000-2001. He is a Fellow of the American College of Trial Lawyers, the International Society of Barristers, the American Academy of Appellate Lawyers, the American Law Institute and the American Bar Foundation. From 1993 to 1998 Mr. Robinson served as a member of the Committee on Rules of Evidence of the United States Judicial Conference by appointment of Chief Justice William Rehnquist.

DOJ Staff:

Roslyn A. Mazer

Special Counsel for Intellectual Property

Criminal Division

Betty-Ellen Shave

Associate Chief for International Matters

Computer Crime and Intellectual Property Section

Michael P. O'Leary

Trial Attorney

Computer Crime and Intellectual Property Section

Michael Mee

Senior Special Agent

Intellectual Property Program Manager

Financial Crimes Section

Federal Bureau of Investigation

Under Secretary of State for Economic, Business, and Agricultural Affairs Alan P. Larson

Ambassador Alan P. Larson assumed his duties as Under Secretary of State for Economic, Business, and Agricultural Affairs on November 24, 1999. The Under Secretary serves as the senior economic official at the Department of State. He advises the Secretary on international economic policy and leads the work of the Department on issues ranging from trade and aviation to bilateral relations with America's economic partners.

Ambassador Larson served as Assistant Secretary of State for Economic and Business Affairs from July 1996 to November 1999 and from 1994 to 1996 as Principal Deputy Assistant Secretary for International Finance and Development. From 1990 to 1993, Mr. Larson served as American Ambassador to the Organization for Economic Cooperation and Development in Paris.

From 1987 until 1990, Mr. Larson was Principal Deputy Assistant Secretary of State for Economic and Business Affairs; served as Deputy Assistant Secretary of State for International Energy and Resources Policy from 1986 to 1987; and from 1984 to 1986, was Executive Assistant to the Under Secretary of State for Economic Affairs.

Earlier in his career, Mr. Larson was Counselor for Economic and Commercial Affairs at the U.S. Embassy in Jamaica (1982-84); Deputy Director (1980-82) and International Economist

(1978-1980) in the State Department's energy policy office; and economic officer in American

Embassies in Zaire (1975-77) and Sierra Leone (1973-75).

Mr. Larson has a Ph.D. in economics from the University of Iowa. He also attended Johns Hopkins School of Advanced International Studies. He is married and has three children.

State Department Staff:

Deputy United States Trade Representative Richard W. Fisher

Ambassador Richard W. Fisher has primary responsibility for trade policy and negotiations in Asia, Latin America, Mexico and Canada. Ambassador Fisher has been the chief operating officer of the U.S. Government for NAFTA, the largest trading relationship of the U.S., accounting for 40% of U.S. exports and 30% of imports. He has had oversight responsibilities for bilateral trade issues in countries of the Western Hemisphere and for the development of the Free Trade Area of the Americas, representing the U.S. at the Ministerial (Cabinet) level for multilateral negotiations with the 34 Latin and Caribbean nations involved. Similarly, Ambassador Fisher represented the U.S. at both the 1999 New Zealand and 2000 Australia Ministerial meetings of the 21-member states of APEC.

Ambassador Fisher negotiated the U.S.-Korea Auto Agreement of 1998, and the Agreement in Principle on Trade with Vietnam in 1999. Since 1997, he has chaired the American delegation for the Enhanced Initiative on Competition and Deregulation of the Japanese Economy, resulting in significant changes in the structure of Japan's telecommunications, housing, energy, distribution, retailing, and financial sectors. He was a member of the team that negotiated the U.S.-China agreement for Chinese accession to the World Trade Organization. Throughout his tenure at USTR, he has served as Vice Chairman of the Board of Directors of the Overseas Private Investment Corporation (OPIC). He is also a member of the National Intellectual Property Law Enforcement Coordination Council.

Before joining USTR, Ambassador Fisher was Managing Partner of Fisher Ewing Partners and Fisher Capital Management from 1987 through 1997. With $500 million in equity capital, both firms specialized in buying claims to assets selling significantly below true value in securities markets of the U.S., Europe and Asia (including Chinese 'B' shares traded in Shanghai). The return compiled by Fisher Ewing's portfolio, Value Partners, was among the highest earned by a U.S. fund manager in the 1990's (compounding at 24% per annum over 8 years). Previously, Ambassador Fisher was Senior Manager of Brown Brothers Harriman and Company (1980-1987).

In addition to managing his business, Mr. Fisher was Adjunct Professor at the LBJ School at the University of Texas at Austin where he taught a second-year Masters degree course in public policy. Mr. Fisher was also one of five outside professional directors of the University of Texas Investment Fund (UTIMCO) with fiduciary responsibility for $11 billion of U.T. System financial assets.

Mr. Fisher was Texas' Democratic nominee for the United States Senate in 1994. He received 1.6 million votes but was defeated in the general election by the Republican incumbent and was forever cured from wanting to seek elective federal office.

Mr. Fisher was Executive Assistant to the Secretary of the Treasury in the Carter Administration. He served as an assistant to President Carter at the Tokyo Economic Summit in 1979 and as an advisor at the Bonn Economic Summit in 1978. He was a member of the team that negotiated the Claims and Asset Settlement between the U.S. and the People's Republic of China in 1979 which paved the way for normalization of trade relationships between the two countries and was the antecedent to the more comprehensive agreement negotiated by the Clinton Administration twenty years later.

Mr. Fisher is a first generation American and the first in his family to receive a university degree. He attended the U.S. Naval Academy ('67-'69), graduated with honors from Harvard in economics ('71), read Latin American history at Oxford ('72-'73), and received an M.B.A. from Stanford University ('75).

Mr. Fisher was Chairman of the Board of Trustees of the Stanford University Business School Trust from 1982-84. During his tenure, the Trust earned the highest return on its portfolio - 58.3% in 1983 - in its 33-year history. He more recently served on two oversight committees at Harvard: the Visiting Committees of the John F. Kennedy School of Government and the Center for International Affairs.

Mr. Fisher was Founding Chairman of the Dallas Committee on Foreign Relations, served as Chairman of Goodwill Industries of Dallas, and has served on the boards of directors of the Boys Clubs of Greater Dallas, the Dallas Chamber of Commerce, the Dallas Museum of Art, the Dallas Assembly, Southwestern Medical Center and numerous other civic organizations. He is former Chairman of the Institute of the Americas in San Diego. He served on the Executive Committee of the American Council on Germany, and as a director of the U.S. - Russia Investment Fund. In 1990, he was a U.S.-Japan Leadership Fellow, resident in Tokyo. In 1993, he was decorated with the Order of Bernardo O'Higgins gran oficial by the Republic of Chile. He is a member of the Texas Philosophical Society.

Mr. Fisher is married to Nancy Miles Collins, daughter of the late James M. Collins, who served in the House of Representatives as a Republican representing the third congressional district of Texas. Mrs. Fisher chairs the Fisher-Collins Foundation, and serves on the Board of Directors of Blair House, the Washington Opera, and on the Madison Council of the Library of Congress. She wrote the screenplay for the film Lone Star Struck, which is currently in post-production. The Fishers have four children: Anders (Harvard '99), Alison (Harvard '02), James (St. Albans '02), and Texana (National Cathedral School '04).

USTR Staff:

Commissioner of Customs Raymond W. Kelly

The Commissioner of Customs directs over 19,000 employees responsible for enforcing over 600 laws and international agreements that protect the American public. Customs collects roughly $20 billion annually in revenue from U.S. importers; protects our borders against the illegal importation of narcotics and other contraband; enforces laws intended to prevent illegal trade practices and laws to prevent the export of high-technology products and weapons. The Customs Service is vested with the powers of search, seizure, arrests and to conduct criminal and civil investigations.

In an effort to combat the flow of infringing goods into the United States, the United States Customs Service has made a concerted effort to detect and seize infringing merchandise entering the United States and to investigate those individuals and organizations involved in those illicit schemes. This mission is accomplished through the cooperation of various disciplines within Customs and with other domestic and foreign law enforcement authorities to target illegal activities and to take appropriate enforcement action. By statutory authority, Customs has been granted the power to decide substantive issues of trademark and copyright infringement.

Within the United States legal system, the Customs Service and the U.S. International Trade Commission, at the administrative level, and courts of law are the only competent legal authorities provided the power to make determinations of infringement. Customs authority is pursuant to the Tariff Act of 1930, the Lanham Act of 1946 and the Copyright Act of 1976. Customs is without power to make determinations of patent infringement. Customs issues reasoned written decisions on substantive issues of trademark and copyright infringement.

Raymond W. Kelly was sworn in as Commissioner of the United States Customs Service on August 4, 1998. Prior to this appointment, Mr. Kelly had served as the Under Secretary for Enforcement of the Treasury Department since 1996. Mr. Kelly brings to the position more than 30 years of experience and commitment to public service. A former Marine who served in combat in Vietnam, he rose through the ranks of the New York City Police department serving in 25 commands, before becoming Commissioner in August, 1992, a post he held until his retirement in January 1994. In 1994, during the crisis in Haiti, President Clinton named Mr. Kelly as Director of the International Police Monitors the multinational force. These monitors helped to establish Haiti’s interim public security force.

Mr. Kelly is an attorney with law degrees from St. John’s University and New York University, where he has lectured on the law, public policy, and crisis management. He is a graduate of Manhattan College and holds a master’s degree in public administration from the Kennedy School of Government at Harvard University. He was awarded an honorary doctorate from Marist College in May 1995, Manhattan College in 1996, College of St. Rose in 1997 and St. John’s University in 1998 in recognition of his distinguished career in public service.

Customs Service Staff:

Office of Investigations

U.S. Department of Commerce, International Trade Administration, Deputy Under Secretary for International Trade Timothy J. Hauser

Timothy J. Hauser was appointed Deputy Under Secretary of Commerce for International Trade in August 1991. As such, he serves as chief operating officer for the 2300-person, $290 million International Trade Administration (ITA). Hauser oversees the day-to-day operations of ITA in its trade promotion, trade policy and trade law enforcement activities and serves as principal adviser to the Under Secretary. He has also served as Acting Under Secretary in 1992-93, 1996, and 1997.

A 21-year Commerce employee, Hauser received the Presidential Distinguished Executive Award in l992, the Senior Executive Association's Distinguished Executive Award in l993, and the Presidential Meritorious Executive Award in 1988.

Hauser served from 1987 - 1991 as Deputy Assistant Secretary for Planning, responsible for the department's participation in interagency trade policy development activities. In 1986-87, he was detailed to the White House as Deputy Executive Secretary of the Economic Policy Council, where he developed recommendations on international trade issues for the President, Cabinet and senior White House staff.

From 1982-1986, Hauser directed ITA's office of Multilateral Affairs. There, he managed Commerce's work on trade and investment issues in the General Agreement on Tariffs and Trade (GATT), the Organization for Economic Cooperation and Development OECD) and the United Nations. He frequently represented the department in international negotiations.

Hauser joined Commerce in 1979 on the staff of the Assistant Secretary for Policy. From 1971 to 1979, he worked as an economist with the Bureau of Labor Statistics' International Price Competitiveness Program.

A 1970 graduate of Georgetown University's School of Foreign Service, Hauser received a Master's Degree in International Relations (1972) and did additional graduate work at the Johns Hopkins School of Advanced International Studies in Washington, D.C. and Bologna, Italy.

A native of Pittsburgh, Pennsylvania, Hauser is married and has one son.

Commerce Staff:

Register of Copyrights Marybeth Peters

Marybeth Peters has served as the United States Register of Copyrights since August 7, 1994. From 1983-1994 she held the position of Policy Planning Advisor to the Register. She has also served as Acting General Counsel of the Copyright Office and as chief of both the Examining and the Information and Reference divisions. A frequent speaker on copyright issues, Ms. Peters is the author of The General Guide to the Copyright Act of 1976. Ms. Peters received her undergraduate degree from Rhode Island College and her law degree, with honors, from The George Washington University Law Center. She is a member of the bar of the District of Columbia.

Ms. Peters is an active member of The Copyright Society of the U.S.A. She is also a member of the Intellectual Property Section of the American Bar Association, the District of Columbia Bar Association, including the Computer Law Section, the DC Computer Law Forum, and the Computer Law Association, where she is a member of the board of directors.

Ms. Peters has served as a lecturer in the Communications Law Institute of The Catholic University of America Columbus School of Law and as adjunct professor of copyright law at The University of Miami School of Law and at the Georgetown University Law Center.

Ms. Peters served as a consultant on copyright law to the World Intellectual Property Organization in Geneva, Switzerland, from 1989-1990.

Copyright Office Staff:

APPENDIX - TAB B

Council Documents - Meeting Agendas and Related Background Papers

NATIONAL INTELLECTUAL PROPERTY LAW ENFORCEMENT COORDINATION COUNCIL ("COUNCIL") MEETING

AGENDA and DISCUSSION ISSUES

January 21, 2000

1:30p.m. – 3:00 p.m.

Location: US Patent and Trademark Office

2121 Crystal Drive, Suite 906 (Crystal Park 2)

Arlington, Virginia

I. Introductions

2. Discussion Issues

1. Council’s Mission

• Should the Council’s role in coordinating "domestic and international intellectual property law enforcement among federal and foreign entities" be limited to consideration of policy issues, operational issues, or both?

1. Logistical Issues

• Meetings

• How frequently should the Council meet?

• How should the Council be governed?

• Membership

1. Role of the Copyright Office

*Public Law No. 106-58 directs the Council to "consult with the Register of Copyrights on law enforcement matters relating to copyrights and related matters and rights".

2. Participation by other agencies

• Report

(1) What should the Council’s first year Report cover?

• Establishing the Council as an Entity

• Are there duties and functions of the Council, which might require separate staffing and/or funding?
• Are there operational costs (e.g. letterhead, correspondence, etc.)?

1. Council’s Structure

• The Draft Working Paper and Proposed Action Plan identify the following functions as potential Council-related activities:

• policy formulation
• law enforcement liaison
• training
• industry outreach

• Do these documents reflect an appropriate breakdown of the areas and tasks the Council should address?

• Are there other areas, tasks, or projects the Council should consider?

• Should subcommittees or groups be formed to carry out tasks identified as priorities by the Council? If so, for which of the "functions" identified? At the working level?

NATIONAL INTELLECTUAL PROPERTY LAW ENFORCEMENT COORDINATION COUNCIL (NIPLECC)

DRAFT BACKGROUND PAPER

Contents

NIPLECC Statutory Authorization *

Participating Agencies and Offices *

USG Programs Relevant to NIPLECC’s Mission *

Bilateral/Multilateral Organizations Relevant to NIPLECC's Mission *

* * * * *

NIPLECC Statutory Authorization

On September 29, 1999, President Clinton signed into law the Treasury/Postal appropriations bill, Public Law No. 106-58, Section 653 of which created the "National Intellectual Property Law Enforcement Coordination Council" (NIPLECC). The Council’s duty is "to coordinate domestic and international intellectual property law enforcement among federal and foreign entities." The Council is required to "report annually on its coordination activities" to the President and to the Appropriations and Judiciary Committees of the House and Senate. Its first report is due on September 29, 2000.

Participating Agencies and Offices

Statutorily-designated Council Members, listed according to order of mention in the statute, are as follows:

Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Co-Chair)

(Q. Todd Dickinson)

Public Law 106-113, which was signed by the President on November 29, 1999, establishes the U.S. Patent and Trademark Office (PTO) as a performance-based organization under the policy direction of the Secretary of Commerce. As an agency responsible for promoting industrial and technological progress in the United States and strengthening the national economy, the PTO’s mission is to (1) administer the patent and trademark laws; (2) advise the President, through the Secretary of Commerce; on national and certain international intellectual property policy issues; (3) advise Federal departments and agencies on matters of intellectual property policy in the U.S. and intellectual property protection in other countries.

In addition, the PTO also provides guidance, as appropriate, with respect to proposals by agencies to assist foreign governments and international intergovernmental organizations on matters of intellectual property protection. Finally, the agency also has authority to conduct programs, studies, or exchanges or items or services regarding domestic and international intellectual property law and the effectiveness of intellectual property protection domestically and throughout the world. The office employs over 5,000 full time equivalent (FTE) staff to support its major functions -- the examination and issuance of patents and the examination and registration of trademarks.

Q. Todd Dickinson was confirmed as Assistant Secretary of Commerce and Commissioner of Patents and Trademarks on November 10, 1999. In addition to other positions, Mr. Dickinson’s diverse experience in intellectual property law comes from his service as counsel with the Philadelphia-based law firm of Dechert Price & Rhoads and his service as Chief Counsel for Intellectual Property and Technology at Sun Company, Inc. He was also counsel to the Chevron Corporation in San Francisco. Mr. Dickinson holds a J.D. from the University of Pittsburgh School of Law and a B.S. from Allegheny College.

Assistant Attorney General, Criminal Division (Co-Chair) (James K. Robinson)

The Criminal Division of the U.S. Department of Justice develops, enforces, and supervises the application of all federal criminal laws except those specifically assigned to other divisions. The Division and the 93 U.S. Attorneys have the responsibility for overseeing criminal matters under the more than 900 statutes as well as certain civil litigation. Criminal Division attorneys prosecute many nationally significant cases.

In addition to its direct litigation responsibilities, the Division formulates and implements criminal enforcement policy and provides advice and assistance. For example, the Division approves or monitors sensitive areas of law enforcement such as participation in the Witness Security Program and the use of electronic surveillance; advises the Attorney General, Congress, the Office of Management Budget and the White House on matters of criminal law; provides legal advice and assistance to federal prosecutors and investigative agencies; and provides leadership for coordinating international as well as federal, state, and local law enforcement matters.

James K. Robinson was confirmed as Assistant Attorney General in June 1998. Prior to serving as Assistant Attorney General for the Criminal Division, Mr. Robinson was the United States Attorney for the Eastern District of Michigan from 1977 to 1980. Before returning to the Department of Justice, Mr. Robinson was a partner with the Detroit law firm of Honigman Miller Schwartz and Cohn where he chaired the firm's litigation department. In 1993, Mr. Robinson was appointed Dean and Professor of Law at Wayne State University Law School, a post he held until his appointment as Assistant Attorney General in 1998. He holds a J.D. magna cum laude from Wayne State University Law School.

Undersecretary of State for Economic, Business and Agricultural Affairs (Alan P. Larson)

The State Department’s Bureau of Economics and Business Affairs (EB), through its Intellectual Property and Competition Policy Division (EB/IPC), has the policy lead within the State Department to develop and implement policies to promote effective protection of intellectual property rights (patents, copyrights, trademarks, trade secrets, industrial designs etc.) worldwide. It oversees the Department’s participation in the work of the World Intellectual Property Organization (WIPO), which administers many international intellectual property agreements and provides technical assistance. The Division represents the Department at meetings of the TRIPS (Trade Related Aspects of Intellectual Property Agreement) Council at the World Trade Organization. The division works to strengthen IP rights through the negotiation and ratification of international agreements on IP protection in areas of emerging technology, including the Internet, biotechnology, and copyright protection for works in electronic media.

EB/IPC represents the Department in interagency efforts to resolve cases and minimize the misappropriation of U.S. intellectual property abroad. It works closely with the Office of the U.S. Trade Representative, the U.S. Patent & Trademark Office (USPTO) of Department of Commerce, the Library of Congress, Copyright Office, and the private sector in developing and implementing a comprehensive strategy for addressing bilateral IP programs.

Working with INL, EB/IPC also spearheads efforts to cooperate with law enforcement agencies to protect IPR around the world and to develop and implement training and technical assistance programs both for IPR enforcement and TRIPS implementation, using resources from the USG (e.g. INL, USAID, and CLDP), WIPO, and the private sector.

Within the State Department’s International Narcotics and Law Enforcement Bureau (INL), there is also ongoing work on intellectual property (IP) enforcement program. INL is charged with fighting intellectual property theft and creating predictable legal economic environments worldwide so that American business may prosper. In furthering its IP goals, INL coordinates USG interagency response and engages foreign governments on intellectual property enforcement matters. Additionally, the INL Bureau is in close communication with the private sector so as to ensure timely and responsive assistance to rights-holders doing business abroad.

INL has responsibility for administering a training budget to be deployed as a tool to counter IP theft in regions and individual countries. Together, INL and EB co-chair the IP Law Enforcement Working Group that serves as a coordination body to facilitate communication between US law enforcement agencies. INL and EB also maintain a training database so as to avoid duplicative efforts in IP technical assistance by both the private and public sectors.

Alan P. Larson was sworn in as Under Secretary for Economic, Business and Agricultural Affairs on November 24, 1999. Prior to this position, Mr. Larson served as Assistant Secretary and Principal Deputy Assistant Secretary of State for Economic and Business Affairs. He also served as American Ambassador to the Organization for Economic Cooperation and Development in Paris from 1990 to 1993. Mr. Larson holds a Ph.D. in economics from the University of Iowa.

Deputy United States Trade Representative (Richard Fisher)

The Office of the U.S. Trade Representative (USTR) is responsible for developing and coordinating U.S. international trade, commodity, and direct investment policy, and leading or directing negotiations with other countries on such matters. The U.S. Trade Representative is a Cabinet member who acts as the principal trade advisor, negotiator, and spokesperson for the President on trade and related investment matters. Through an interagency structure, the USTR coordinates trade policy, resolves agency disagreements, and frames issues for Presidential decision.

The agency provides trade policy leadership and negotiating expertise in its major areas of responsibility. Among these are the following: all matters within the World Trade Organization (WTO), formerly the General Agreement on Tariffs and Trade (GATT), including implementation of the Uruguay Round Multilateral Trade Negotiation (MTN); trade, commodity, and direct investment matters dealt with by international institutions such as the Organization for Economic Cooperation and Development (OECD) and the United Nations Conference on Trade and Development (UNCTAD); export expansion policy; industrial and services trade policy; international commodity agreements and policy; bilateral and multilateral trade and investment issues; trade-related intellectual property protection issues; and import policy. The agency is organized to accommodate sectoral, regional, and functional policy perspectives, which are integrated into the decision-making process, and coordinated externally with government agencies, the private sector, and foreign entities.

Ambassador Richard Fisher has served as Deputy U.S. Trade Representative since December 17, 1997. Prior to joining USTR, Ambassador Fisher was Managing Partner of Fisher Ewing Partners and Fisher Capital Management. He also served as Adjunct Professor at the LBJ School at the University of Texas at Austin. Mr. Fisher holds a B.A. from Harvard and a M.B.A. from Stanford.

Commissioner of Customs (Raymond W. Kelly)

The Commissioner of Customs directs over 19,000 employees responsible for enforcing over 600 laws and international agreements that protect the American public. . Customs collects roughly $20 billion annually in revenue from U.S. imports; protects our borders against the illegal importation of narcotics and other contraband; enforces laws intended to prevent illegal trade practices and laws to prevent the export of high-technology products and weapons. The Customs Service is vested with the powers of search, seizure, arrests and to conduct criminal and civil investigations.

In an effort to combat the flow of infringing goods into the United States, the United States Customs Service has made a concerted effort to detect and seize infringing merchandise entering the United States and to investigate those individuals and organizations involved in those illicit schemes. This mission is accomplished through the cooperation of various disciplines within Customs and with other domestic and foreign law enforcement authorities to target illegal activities and to take appropriate enforcement action. By statutory authority, Customs has been granted the power to decide substantive issues of trademark and copyright infringement.

Within the United States legal system, the Customs Service and the U.S. International Trade Commission (ITC), at the administrative level, and courts of law are the only competent legal authorities provided the power to make determinations of infringement. Customs authority is pursuant to the Tariff Act of 1930, the Lanham Act of 1946 and the Copyright Act of 1976. Customs is without power to make determinations of patent infringement. Customs issues reasoned written decisions on substantive issues of trademark and copyright infringement.

Raymond W. Kelly was sworn in as Commissioner of the United States Customs Service on August 4, 1998. Before to this appointment, Mr. Kelly had served as the Under Secretary for Enforcement of the Treasury Department since 1996. Mr. Kelly brings to the position more than 30 years of experience and commitment to public service. A former Marine who served in combat in Vietnam, he rose through the ranks of the New York City Police department serving in 25 commands, before becoming Commissioner in August, 1992, a post he held until his retirement in January 1994. In 1994, during the crisis in Haiti, President Clinton named Mr. Kelly as Director of the International Police Monitors the multinational force. These monitors helped to establish Haiti’s interim public security force.

Undersecretary of Commerce for International Trade (David Aaron)

The International Trade Administration (ITA) helps U.S. businesses participate fully in the growing global marketplace. The ITA provides practical information to help businesses select markets for products; ensures that businesses have access to international markets as required by trade agreements; and safeguards businesses from unfair competition from dumped and subsidized imports. ITA is headed by the Under Secretary for International Trade who oversees the operations of ITA's four units: The Commercial Service is the primary point of contact for businesses throughout the United States and the world. A global network of Commercial Officers are prepared to offer assistance at every stage of the exporting process. Trade Development is the government's link to American industry. Industry sector specialists help businesses identify trade opportunities for specific products or services. Market Access and Compliance keeps world markets open to products. Country specialists can help businesses benefit from our trade agreements with other countries. Import Administration impartially enforces trade laws, ensuring that businesses face a level playing field in the domestic marketplace.

Ambassador David Aaron has served as Under Secretary of Commerce for International Trade since June 1997. Before serving in his current position, Ambassador Aaron was the United States’ Permanent Representative to the Organization for Economic Cooperation and Development in Paris. Immediately prior to this, Ambassador Aaron was Vice President for Mergers and Acquisitions at Oppenheimer and Company and Vice Chairman of Oppenheimer International. Filling many positions, Mr. Aaron also had a career in the U.S. Foreign Service that began in 1962.

USG Programs Relevant to NIPLECC’s Mission

The following is a brief, non-exclusive account of existing office and agency programs that may be relevant to NIPLECC Member discussions and deliberations:

USTR "Special 301" Process

The "Special 301" provisions of the Trade Act of 1974, as amended, require the USTR to determine whether the acts, policies and practices of foreign countries deny adequate and effective protection of intellectual property rights or fair and equitable market access for U.S. persons that rely on intellectual property protection. Special 301 was amended in the Uruguay Round Agreements Act to clarify that a country can be found to deny adequate and effective intellectual property protection even if it is in compliance with its obligations under the TRIPS Agreement. It was also amended to direct the USTR to take into account a country's prior status and behavior under "Special 301."

Once this pool of countries has been determined, the USTR is required to decide which, if any, of these countries should be designated Priority Foreign Countries. Priority Foreign Countries are those countries that: have the most onerous and egregious acts, policies and practices which have the greatest adverse impact (actual or potential) on the relevant U.S. products; and, are not engaged in good faith negotiations or making significant progress in negotiations to address these problems. If a trading partner is identified as a Priority Foreign Country, the USTR must decide within 30 days whether to initiate an investigation of those acts, policies and practices that were the basis for identifying the country as a Priority Foreign Country. A Special 301 investigation is similar to an investigation initiated in response to an industry Section 301 petition, except that the maximum time for an investigation under Special 301 is shorter in some circumstances.

DOJ/FBI/Customs Intellectual Property Rights Enforcement Initiative

On July 23, 1999, the Deputy Attorney General, Assistant FBI Director Thomas Pickard, and Deputy Customs Commissioner Samuel Banks and two U.S. Attorneys Offices announced a joint Intellectual Property Rights Initiative aimed at elevating the priority of domestic criminal enforcement on intellectual property laws and developing a more coherent and vigorous international approach to IP enforcement issues ("IP Initiative").

The major domestic goals of the IP Initiative are to: increase the priority of criminal IP investigations and prosecutions in seven "target" districts; increase specialized training courses for investigators and prosecutors; seek referrals from industry through a streamlined, direct referral system; encourage utilization of procedures for forfeiture of infringing merchandise; and to support increased criminal penalties for infringement through amendments to the Sentencing Guidelines. The major international goals are to assist in the creation and support of an intellectual property rights enforcement council; assist in the development of foreign criminal laws; coordinate and participate on the provision of international IP enforcement training; provide support to the Administration’s ongoing multilateral and bilateral efforts to strengthen IP enforcement.

There has been significant progress during the last three months, owing to efforts of the three headquarters components as well as the seven key jurisdictions. FBI headquarters, for example, reports a dramatic spike in the overall number of intellectual property investigations opened since announcement of the Initiative. As of November 5, 1999, the Bureau reports that there are 455 intellectual property cases under investigation (combined copyright, trademark and trade secret), and that between July 23 (the date of the announcement) and November 5, 1999, 110 new IP-related investigative matters have been opened. These figures reflect nationwide efforts, and are not confined to progress made by the seven key jurisdictions. The U.S. Customs Service has also contributed a number of significant cases to the initiative thus far, with many more to follow.

THE PTO INTERNATIONAL ENFORCEMENT MONITORING AND COMPLIANCE TRAINING PROGRAM

The PTO monitors implementation of bilateral, regional and multilateral obligations of foreign governments with a view to an effective IP enforcement system that incorporates the minimum civil, administrative, border and criminal requirements of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). As part of this monitoring program, PTO works closely with various agencies and industry groups to determine (1) whether a country’s laws incorporate the minimum enforcement standards required by bilateral and multilateral agreements (MOU’s, NAFTA, TRIPS, etc.) and (2) whether IP owners are, in practice, receiving the levels of protection and enforcement which the laws provide. Under 19 USC §2242, the PTO provides technical advice to the USTR regarding IP enforcement compliance and regularly supports USTR in its bilateral negotiations by providing IP enforcement expertise. With the advent of the January 1, 2000 date for compliance with TRIPS for developing member countries, the PTO is increasing its monitoring efforts to assist countries in complying with the systemic enforcement requirements of TRIPS.

Since monitoring compliance with TRIPS systemic enforcement requirements necessitates a substantive review of a country’s domestic trademark, patent, copyright and trade secret laws, its civil and criminal codes, and any customs codes, PTO is able to bring its expertise to bear on such critical issues as transparency of law, and enforcement infrastructure requirements. Part of its compliance program includes assisting countries to design IP enforcement programs that use existing infrastructures and laws to meet TRIPS compliance. Toward that end, PTO has developed extensive questionnaires and other techniques for assuring that it gains the fullest picture of present IP protection and enforcement efforts.

In addition to its enforcement monitoring program, PTO conducts and participates in numerous international enforcement training programs. On the multi-agency level, PTO has worked with such diverse organizations as WIPO, CLDP, USIA, USAID, DOJ, FBI, and Customs, to assist in training foreign law enforcement officials to meet the systemic enforcement requirements of TRIPS. PTO has further worked with various regional entities, including APEC and ASEAN, to conduct training programs. As part of its international training program, the PTO also partners with WIPO’s Training Academy to provide technical assistance to policy makers and other governmental officials from developing countries on creating a TRIPS-compliant IP enforcement regime.

As part of its enforcement monitoring and compliance program, PTO has worked with the WIPO to develop materials utilizing a fact-pattern approach that can be used in multi-discipline training. Due to TRIPs' requirements for civil, criminal and border enforcement measures, the PTO model envisions a scenario that allows officials from customs, police, prosecutors offices and judges to participate in an inter-disciplinary program. The flexibility of this fact-pattern approach allows it to be used whether the presentation is to a group from multiple countries or in a bilateral or regional setting. This enforcement model is expected to be used extensively in future multi-agency training programs.

The National Intellectual Property Rights Coordination Center (NIPRCC)

[Description provided by Customs and has not been considered by other agencies]

The National Intellectual Property Rights Coordination Center (NIPRCC) is a multi-agency center that will coordinate all U.S. Government law enforcement activities involving IPR issues, both domestically and internationally. The NIPRCC will serve as a collection point for intelligence provided by private industry, as well as, a channel for law enforcement to obtain cooperation from private industry in specific law enforcement situations. The NIPRCC will integrate domestic and international law enforcement, along with private industry information and intelligence relating to IPR crime. This intelligence will then be disseminated for appropriate investigative and tactical use. Particular emphasis will be given to major criminal organizations and those using the Internet to facilitate IPR crime.

The NIPRCC will serve as the point of contact for all U.S. Government agencies, the Administration, Congress and the media regarding law enforcement related issues. It will assist in the enhancement and further development of investigative, intelligence and interdiction capabilities and will work closely with foreign law enforcement in exchange of tactical intelligence and joint operations.

Initially, Customs is assigning two special agents and two intelligence research specialists to the Center. The FBI is assigning one special agent and one intelligence research specialist. Participation by other federal and state law enforcement officers is welcome.

Department of State IP Training Database

EB/IPC has created a centralized database of technical assistance and training in the IP area provided by the US government, inter-governmental (i.e. WIPO) and other organizations. The database includes domestic and international training programs conducted by the US government for developing countries. It also serves as a resource to the agencies and also U.S. embassies in identifying future IP training programs for their host countries. It is also used at TRIPS Council meetings to demonstrate the technical assistance provided by the U.S. government to developing countries. EB/IPC is currently updating the database, which can be searched by the date the training was provided and the country. The database should be especially useful for the Council’s activities.

Bilateral/Multilateral Organizations Relevant to NIPLECC's Mission

APEC

The Asia-Pacific Economic Cooperation (APEC) forum was established in 1989 to promote economic integration in the Pacific region and to sustain economic growth. APEC member countries consist of Australia, Brunei Darussalam, Canada, Chile, China, Hong Kong, Indonesia, Japan, South Korea, Malaysia Taiwan, Mexico, Papua New Guinea, New Zealand, Philippines, Singapore, Thailand and the United States.

U.S. Patent and Trademark Office

During the past three years, the U.S. Patent and Trademark Office has participated in a number of conferences and seminars hosted by APEC and its member countries on implementing the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), including both its substantive and enforcement provisions. The seminars have focused on assisting APEC member countries to develop both the proper legal framework and enforcement regime for protecting and enforcing intellectual property. Participants have included high-level government officials from IP, trade and enforcement agencies.

U.S. Customs

Under the auspices of the APEC Sub-Committee on Customs Procedures (SCCP), U.S. Customs recently completed a two-year technical assistance program which provided training and technical assistance in border enforcement measures to several APEC member economies. After conducting an analysis of the border enforcement regimes of ten APEC member economies at the 1997 APEC Needs Assessment Meeting in Tokyo, U.S. Customs, in coordination with Customs Administrations of Japan, Australia, New Zealand and Canada, in coordination with concerned industry groups, designed and implemented country-specific, comprehensive technical assistance programs designed to strengthen border enforcement under the TRIPS Agreement.

Key areas of training included: meeting TRIPS border enforcement obligations; examining various customs administrations’ approach to TRIPS implementation; strengthening legislative and regulatory structures relative to border enforcement; developing appropriate Customs organizational structures; improving Customs operational issues; and improving the identification of infringing goods and Customs inspection techniques. In 1999, training was provided to Chile, Philippines, Thailand, Papua New Guinea, Indonesia, Peru, Vietnam and China. Russia is also scheduled to receive technical assistance under this project in the near future.

Council of Europe/G8

The Department of Justice is attempting to raise the profile of intellectual property (IP) crime enforcement within certain international groups, particularly the G8 and Council of Europe. In the Council of Europe, the Department is actively involved in the drafting of the Convention on Cybercrime, which contains a provision aimed at intellectual property crime. The draft convention is expected to be in final form at the end of 2000.

The Department is also involved in efforts to raise awareness of IP crime within the G8. To this end, the US distributed an IP enforcement survey to G8 members in the Summer of 1998, and presented the results of the survey at the G8 ministerial meetings last year. The results demonstrated that the member countries were facing similar problems with respect to IP crime, including the increased presence of organized transnational activity, and indicated a willingness to join forces to address these challenges. In attempting to build in the momentum generated by the survey, the US has drafted a proposal to form a new Transnational Economic Crimes subgroup of the Lyon Group. Transnational IP crime is proposed as one component of this subgroup. In order to stimulate interest in the inclusion of IP crime in such a subgroup, and explore what the subgroup might accomplish, the US is inviting experts in the IP field to a meeting in Washington this Spring to discuss these issues.

International Law Enforcement Academy-Bangkok (ILEA-Bangkok)

In cooperation with the U.S. Department of State and under the auspices of ILEA-Bangkok, in October 1999, U.S. Customs and the Federal Bureau of Investigation developed and implemented a training program aimed at strengthening the border enforcement regimes of several southeast Asian countries. The International Law Enforcement Academy, established by the governments of the United States and Thailand in 1998, was created to provide quality training and criminal justice institution building, to strengthen the rule of law, and develop partnerships with, and cooperation among, Asian, U.S., and other world law enforcement communities.

The October 1999 program provided training to delegations of law enforcement officials from Malaysia, Singapore, Thailand, Viet Nam, Hong Kong, Indonesia, Phillippines, Brunei and Laos which focused on border enforcement legal policy and regulatory frameworks, criminal investigative techniques and procedures, laboratory and forensic investigations, and Customs procedures and targeting.

United Nations Economic Commission for Europe (UN/ECE)

The UN/ECE is a United Nations organization designed to foster dialogue and cooperation on economic and other issues between its members, which includes countries of North America, western, central and eastern Europe and Asia.

The PTO participates in the UN/ECE’s Advisory Group on the Protection and Implementation of Intellectual Property Rights for Investment. The Advisory Group is a public-private sector partnership, which was created to assist the transitional economies of central and eastern Europe and the Commonwealth of Independent States (CIS), through training programs and other technical assistance, create an effective legal framework and enforcement regime to protect and enforce intellectual property.

World Intellectual Property Organization (WIPO)

WIPO is an intergovernmental organization headquartered in Geneva, Switzerland. One of the 16 specialized UN agencies, it is responsible for promoting the protection of intellectual property throughout the world through cooperation among member States. It also administers various multilateral treaties dealing with the legal and administrative aspects of intellectual property.

U.S. Patent and Trademark Office (PTO)

As the substantive IP agency in the Executive Branch, the PTO represents the U.S. government at WIPO’s Standing Committee and other meetings. In the enforcement area, the PTO partners with the World Intellectual Property Organization’s Training Academy to provide high-level policy makers and other government officials from developing countries with technical assistance, including training, on creating a TRIPS-compliant intellectual property enforcement regime.

The training programs assist government officials understand the components of creating an integrated enforcement system, which includes civil and criminal procedures and remedies and border measures, to combat counterfeiting and piracy in the physical world and tackle the enforcement challenges posed by the Internet. The PTO also partners with WIPO’s Bureaus to provide technical assistance and training on developing a TRIPS-compliant legal system and enforcement regime to high-level government officials from specific regions of the world, including Africa and Asia.

To improve IP enforcement training programs and work more effectively with developing countries to identify weaknesses in their legal framework and enforcement regimes, the PTO and WIPO are spear-heading a project to change IP enforcement training from a lecture-based to a more interactive problem-solving approach. A U.S. inter-agency delegation, led by the PTO, conducted a trial-run of the new format in July of 1999 at WIPO’s headquarters in Geneva.

World Customs Organization (WCO)

The World Customs Organization is an independent intergovernmental body with world-wide membership whose mission is to enhance the effectiveness and efficiency of Customs administrations.

In its role as Chair of the WCO Intellectual Property Rights working group, U.S. Customs let the 8^th annual meeting of the group, which met in Brussels in December 1999. The 1999 meeting was attended by representatives of over 60 WCO member countries, several international organizations and related industries. The major focus of the meeting involved improving the delivery of technical assistance relating to border members under the TRIPS Agreement-with a particular emphasis on developing countries, establishing a European anti-counterfeiting network, and improving methods of seizing goods and prosecuting violators. U.S. Customs remains committed to providing technical training and assistance relating to border measures under TRIPS under the auspices of the WCO.

NATIONAL INTELLECTUAL PROPERTY LAW ENFORCEMENT COORDINATION COUNCIL (NIPLECC)

DRAFT WORKING PAPER AND PROPOSED ACTION PLAN

Contents

ABOUT THIS DOCUMENT *

NIPLECC STATUTORY FUNCTIONS *

SUPPORTING POLICY-RELATED FUNCTIONS *

SUPPORTING ENFORCEMENT-RELATED FUNCTIONS *

SUPPORTING TRAINING-RELATED FUNCTIONS *

SUPPORTING OUTREACH-RELATED FUNCTIONS *

DISCUSSION ISSUES *

MEETING AND ACTIVITY SCHEDULE *

ABOUT THIS DOCUMENT

This Draft Working Paper and Proposed Action Plan has been prepared by the Co-Chair staffs (PTO, DOJ) to facilitate identification of NIPLECC goals, supporting activities, agency participation, action items and timetables where appropriate. It is organized according to certain "core" (i.e., statutorily mandated) functions, and additional supporting functions relating to policy formulation, law enforcement liaison, training, industry outreach, and the activities that might be undertaken to support them. It leaves open for consideration whether certain functions and activities, if undertaken, might call for the formation of standing committee structures or working level groups. Additional information concerning the Council's statutory members and related agency programs is provided in the accompanying Draft Background Paper.

NIPLECC STATUTORY FUNCTIONS

• To "coordinate domestic and intellectual property law enforcement among federal and foreign entities."

• To "report annually on its coordination activities to the President, and to the Committees on Appropriations and on the Judiciary of the Senate and the House of Representatives"

• To "consult with the Register of Copyrights on law enforcement matters relating to copyright and related rights and matters."

• Funding: "[F]unds made available for fiscal year 2000 and hereafter by this or any other act shall be available for interagency funding of the National Intellectual Property Law Enforcement Coordination Council"

Goals and Supporting Activities (Proposed)

• The statutory members of the NIPLECC shall meet periodically, with PTO and DOJ chairing the meetings on a rotating basis.

• The NIPLECC shall produce an Annual Report, at the end of each fiscal year, on its domestic and international IP enforcement coordination activities.

• PTO and DOJ shall coordinate the drafting of the Annual Report, with the assistance of each member agency.

• The NIPLECC may form committees or working-level groups to accomplishing its tasks, and such groups shall meet on a periodic or ad-hoc basis as appropriate.

• .

SUPPORTING POLICY-RELATED FUNCTIONS

The following supporting activities may be undertaken in support of the statutory functions described above.

Goals and Supporting Activities (Proposed)

• Goal: To improve the coordination of the USG's domestic and international IP enforcement efforts.

• Identify agency initiatives (current and future) for enhancing enforcement efforts.

• Develop solutions for correcting deficiencies and enhancing individual agency missions by acting when appropriate through the collective body.

• Identify deficiencies in current IP enforcement efforts (domestic and international).

• Establish priorities for improving domestic and international IP enforcement coordination based on the USG's obligations under multilateral, bilateral, and regional IP and trade agreements and law enforcement missions and priorities

• Assess current allocation and the need for additional resources (e.g. funding, staff etc.) to enhance coordination of domestic and international IP enforcement efforts.

• Goal: To improve cooperation with other governments with respect to IP enforcement.

• Work with law enforcement, trade counterparts and IP agencies in foreign countries to raise the level of awareness of the benefits of strong IP protection and enforcement.

• Goal: To improve cooperation with industry with respect to IP enforcement.

• Work with trademark, copyright and patent industries to identify systemic domestic and international IP enforcement problems, current and potential problems (e.g. Internet piracy etc.), and consider joint initiatives for tackling them.

• Propose annual meeting between NIPLECC and industry association representatives to identify and highlight special IP enforcement problems

Participation

Lead office(s)/agenc(ies)?

Other USG participation required?

Action items/timetable

SUPPORTING ENFORCEMENT-RELATED FUNCTIONS

Goals and Supporting Activities (Proposed)

• Goal: To improve USG coordination between policy-related and law enforcement-related IP activities to further enhance enforcement efforts.

• Interface with USTR Special 301 process and activities:

• Link Special 301 priorities to in-country law enforcement resources; solicit requests for in-country law enforcement needs; report country progress.
• Convey to USTR information on law enforcement performance by periodically communicating major country, regional, and product-related enforcement challenges (see Identification of investigative priorities, below).

• Assess investigative priorities:

• Identify major and emerging geographically-law related challenges
• Identify major and emerging product-related law enforcement challenges
• Liaison with attaches to both identify and appraise of emerging priorities
• Interface with NIPLECC Training function to target resources.

• Evaluate effectiveness of law enforcement assistance programs:

• Track and review provision of international law enforcement-related assistance (not including training)
• Develop recommendations for mutual legal assistance agreements or arrangements, and extradition treaties, aimed at combating intellectual property violations
• Develop measures for gauging effectiveness of efforts
• Identify countries or other targets of resource efforts where resources have failed to produce meaningful results; furnish as input into NIPLECC annual report

• Interface with Intelligence Community (IC)

• Inquire as to resources that might be used to facilitate IP enforcement, and what legal boundaries would apply to intelligence community involvement
• Consider involvement of Intelligence Community liaison to NIPLECC

• Interface with Customs/FBI Information Sharing Center

• Provide policy-level linkages to assist in accomplishing goals of facilitating collection, analysis and dissemination of IP-enforcement related information (encourage contributions of information from other government agencies and private sector).

Participation

Lead office(s)/agenc(ies)?

Other USG participation required?

Action items/timetable

SUPPORTING TRAINING-RELATED FUNCTIONS

Goals and supporting activities (Proposed)

• Goal: To coordinate, track, and evaluate the impact of USG IP technical assistance and training programs for foreign countries.

• Create a system to track USG training programs and IP briefings

• Develop a system to measure effectiveness and overall impact of USG training programs on the country's enforcement regime

• Build on Department of State's database project, develop and maintain database (e.g. countries, participating govt. officials, nature of training etc.) of all technical assistance (past and future) provided by USG agencies.

• Coordinate with all govt. agencies and private organizations (International Institute of Education, Phelps Stokes Fund, etc.) to identify past technical assistance.

• Identify technical assistance provided through other USG and non-USG groups:

• Coordinate technical assistance and training programs provided by agencies through bilateral initiatives (e.g. State's U.S.-PRC JLG and INL, etc.)

• Identify technical assistance provided by other governments, inter-governmental organizations and private industry to eliminate possible duplication

• Develop target list of countries and specific training needs based on TRIPS obligations, Special 301 assessment, input from U.S. embassies and industry, current legal framework, individual country requests, market size and other policy concerns.

• Develop joint USG comprehensive TRIPS-implementation IP enforcement training seminar:

• Offer to countries with proper legal and institutional infrastructure in place a basic seminar with emphasis on step-by-step process for creating an integrated TRIPS-compliant and effective civil, criminal and border system.

• Create list of possible funding sources, including:

• USG agencies (DOC (CLDP), State (INL), AID etc.), inter-governmental organizations (e.g. World Bank, WIPO, Latin and Asian Development Banks, World Customs Organization etc.) and private organizations

• Identify any restrictions on use of funds

• Coordinate with Industry Outreach Group and Liaison Enforcement Group to accomplish training activities.

Participation

Lead office(s)/agenc(ies)?

Other USG participation required?

Action items/timetable

SUPPORTING OUTREACH-RELATED FUNCTIONS

Goals and supporting activities (Proposed)

• Goal: To coordinate with intellectual property owners to tackle IP enforcement problems on the international and domestic fronts.

• Identify specific enforcement issues:

• Coordinate with trademark, copyright and patent industries to identify systemic international (e.g. civil, criminal and border procedures, lack of transparency, political will etc.) and domestic IP enforcement issues.

• Develop potential new strategies for addressing international (outside special 301 and WTO context) IP enforcement issues.

• Identify other USG bilateral initiatives and activities {e.g. U.S. China Joint Commission on Commerce and Trade (JCCT), State Dept.'s US-PRC Joint Liaison Group (JLG), DOC ASEAN initiative etc.} to raise international IP enforcement issues

• Coordinate with Enforcement Liaison Group to identify specific criminal IP enforcement problems.

• Coordinate collection of statistical data:

• Coordinate the collection of statistics and other data (e.g. Customs, FBI statistics, industry associations) on IP infringing activity of use to USG agencies and industry

• Coordinate with industry to assess the economic impact and loss to U.S. IP owners of counterfeiting and piracy

• Furnish as input into NIPLECC annual report.

• Coordinate training initiatives:

• Coordinate with industry (based on in-country experience) to identify country training priorities and specific needs

• Improve coordination of industry participation in USG domestic and international IP training programs

• Develop joint USG-private industry IP enforcement training programs

• Create list of potential private sector trainers (domestic and international

• Coordinate with Training Group on training initiatives.

Participation

Lead office(s)/agenc(ies)?

Other USG participation required?

Action items/timetable

DISCUSSION ISSUES

• Creation of Industry Outreach Committee (proposed by PTO; DOJ proposes integrating the goals and functions listed below into the Enforcement and Training Committees' activities)

• Creation of an inter-agency web page containing IP enforcement information with hyperlink to Member Agencies’ Internet sites.

• Participation by Copyright Office

• Role of Customs/FBI Information Sharing Center vis-à-vis NIPLECC

• Funding

MEETING AND ACTIVITY SCHEDULE

NATIONAL INTELLECTUAL PROPERTY LAW ENFORCEMENT COORDINATION COUNCIL ("COUNCIL")

AGENDA and DISCUSSION ISSUES

Wednesday, April 26, 2000

10:00 a.m.- 12:00 p.m.

U.S. Department of Justice

10^th & Constitution Ave., NW

Room 2208 (Criminal Division Conference Room)

I. Welcome

2. Presentations (10:00-11:00 a.m.)

1. Copyright Office (10 minutes) (Marybeth Peters, Register of Copyrights)

(Background presentation on the nature of its activities in the IP enforcement area)

2. Inventory Status

1. Law Enforcement Liaison (10 minutes) (Stevan Mitchell, DOJ)
2. Outreach (10 minutes) (Susan Wilson, PTO)
3. Training (10 minutes) (Jim Roberts, State; Susan Wilson, PTO)
4. Policy (shifted to focus on "strategy and recommendations" as further described below)

2. Discussion Issues

1. How frequently should the Council meet?

[Working-level staff ("Staff") recommendation is for the Council to hold 3 additional meetings this year prior to publication of the first Annual Report in January, 2001, with one of those meetings being a public meeting or hearing with intellectual property owners, industry representatives and other interested parties. Staff proposes the following timetable for the remainder of the year:

June 2000 -- Council holds public hearing (details below under Industry and other outreach)

September 2000 -- Regular Council meeting

January 2001 -- Regular Council meeting/ approve report for publication and submission to the President and Congress.

[Staff also recommends that the Council hold its meetings on a semi-annual basis thereafter, and in addition, continue to hold 1 public meeting or hearing per year] [PTO recommends quarterly].

2. How should the staff be organized to support the Council?

[Staff recommends that it continue to meet at the working-level, on an ad hoc basis, to prepare for Council meetings and monthly to address Training].

3. Staff has identified 4 possible areas of attention (training, industry and other outreach, law enforcement liaison and policy development). The following are the staffs’ recommendations on how the Council, at present, should approach these activities.

1. Nature of the public meeting;
2. Venue for the meeting (DOC auditorium);
3. Meeting duration (2 to 3 hours);
4. Issues for public comment;
5. Guidelines for oral testimony and submission of written comments.

USG IP Law Enforcement Training Working Group

(Document submitted by State Department EB and INL)

Chaired by State (EB and INL Bureaus). Core Members: Justice, Commerce, PTO, USTR, Customs, FBI, plus others as appropriate, e.g. USAID and CLDP.

Many of the programs that U.S. agencies have organized and participated in have been either wholly or partly funded by State/INL so that they may realize U.S. objectives in deterring intellectual property theft internationally.

The Law Enforcement Training Working Group has been meeting at State since 1998. It prioritizes countries in need of USG-funded training and technical assistance, in the context of decision criteria developed in the Special 301 and TRIPS review process, input from U.S. embassies and consulates abroad, input from private sector, input from participating USG law enforcement working group agencies, and taking into account broader U.S. trade and foreign policy objectives. For those priority countries designated to receive funded training and technical assistance, it develops responsive and tailored programs to address/rectify IP law enforcement concerns. The group meets monthly and provides a forum for agencies to discuss other law enforcement-related training plans and objectives

Group member agencies use a consistent meeting agenda format to discuss (1) country-specific problems; (2) international efforts and how USG projects can contribute; (3) propose specific projects. A database is maintained (based upon contributions from USG agencies and the U.S. private sector) of past and on-going projects for internal USG use and for sharing with relevant international organizations (e.g. WTO, WIPO) as appropriate. The group will continue to augment the database with names, titles, etc. of foreign officials trained with USG funds and expand the database to include NGO and non-USG training currently excluded.

In the future, the group will work on the creation of a website and events calendar, the development of specific course curricula, the further development of the training database, placing a greater emphasis on Internet piracy, the links to organized crime, the need to address consumer protection, and the need for greater attention to countries attempting to comply with TRIPS.

NIPLECC Training Development Project

(Document submitted by USPTO)

In view of existing demands on the USG for IP enforcement training, and the anticipated increase in those demands, the USPTO would like to 1) bring some points to the attention of the Council, and 2) propose a course of action.

1. Points on International Training

In our discussions of IP enforcement training coordination issues at NIPLECC staff meetings we have identified several areas in which coordination could either be improved or initiated. These areas can be subdivided into administrative issues and substantive issues.

On the administrative side, there is a consensus that the following could improve the current USG training situation: ensure that the meetings occur at least bi-monthly; augment the training database with names, titles, etc. of foreign officials trained with USG funds; expand the database to include NGO and non-USG training currently excluded; and chart available USG and non-USG funds for IP training, funding needs, and agency resources and training priorities. Some of these points have already been incorporated in State’s paper.

On the substantive side, the following were identified as worthwhile pursuits: develop standardized enforcement curricula for international training (i.e., an integrated systems approach – civil, administrative, and criminal); develop training materials in different media and different languages; work with WIPO, EU, and other IGOs on training development; expand the base of trainers by developing programs for USG, foreign, and industry trainers; identify competent private sector trainers (domestic and international) and draw industry into more active role in curriculum development; develop methods for measuring the effectiveness and impact of training, including work with industry to develop program follow-up activities that test trained officials.

The USPTO alone, or in conjunction with other USG agencies or IGOs, has begun work in all these areas except effectiveness measurement and program follow-up by industry.

Regardless of the Council’s decision, the USPTO commits to continuing to develop these activities and continuing to incorporate the crucial expertise of the other agencies in this room to accomplish USG training goals. In this regard, we are not asking for any formal arrangement/chair, etc.

However, the USPTO believes that more concerted and productive efforts could be directed at these projects, accelerating delivery dates and improving the USG’s chances of meeting its international objectives. This has not and, we believe, cannot occur in the context of the bi-monthly Law Enforcement Training Working Group. The reasons include: 1) the group is sometimes quite large and includes agencies or entities not at the core of curriculum development – this causes a dilution of focus; 2) the group has discussed many possibilities for improving the situation over the past two years, but has not made progress in several critical areas because our goals list has been too long and too diverse and we all have had too many competing interests; 3) the size of the group, the voluntary nature of participation, and the lack of accountability, while contributing to the popularity of the group, have not been conducive to progress in these areas; and 4) while the group may spawn certain specified tasks such as assessing resource problems associated with international visitors programs, no one has had the time or inclination to devote their attention to the administrative details that could support meaningful progress on substance. In truth, most of the real, substantive work on curriculum has occurred informally, among the staff people in this room.

2. A Proposal

The Council should designate to the NIPLECC staffs the responsibility for undertaking these substantive responsibilities. In this way, institutionally, the Council agencies are both obligated to establish and work toward common goals, and are guaranteed a role in the process. NIPLECC staffs could work on these issues as staff or, if a formal designation is required, could refer to this as the NIPLECC Training Development Project.

This project (named or unnamed) would be an adjunct to the activities of the State-chaired group, but with a different focus. Membership would be limited to NIPLECC agencies. Leadership of projects would be determined on a project-by-project basis. Meetings would be called on an "as needed" basis. Conducting the proposed activities under the aegis of the NIPLECC could have the added benefit of providing the Council with substance-related coordination successes to report to Congress.

Correspondingly, the Law Enforcement Training Working Group would not address curriculum development, but would instead focus on the other activities mentioned, and additional necessary activities, such as using the meetings and proposed website to identify and list available USG and non-USG funds for IP training, match those funds with agency programs that need funding, chart IP training priorities – USG-wide and agency-specific, and chart agency resources – how many trainers are there and how many hours can they commit – so the USG doesn’t over-commit itself to training.

LARSON TRAINING LETTER

NATIONAL INTELLECTUAL PROPERTY LAW ENFORCEMENT COORDINATION COUNCIL ("COUNCIL")

AGENDA and DISCUSSION ISSUES

Friday, August 4, 2000

10:00 a.m. - 12:00 p.m.

Host: U.S. Patent and Trademark Office

2121 Crystal Drive, Suite 906 (Crystal Park 2)

Arlington, Virginia

I. Welcome

2. Training Coordination

Under Secretary Dickinson will read a statement regarding the training coordination issue.

3. Federal Register Notice: Summary and Presentation of Public Comments

Summary and International Issues: Susan Wilson, USPTO

Domestic Issues: Michael O’Leary, DOJ

4. Discussion of Comments and Response Options

1. Is additional interaction with the industry desirable at this time, for example, in the form of a public meeting?

[Staff recommendation: Industry representatives have expressed a preference for option B.1 below. Staff concurs).

2. Response Options:

2. Unified Calendar

[Staff recommendation: Given the short amount of time remaining in this Administration, Staff recommends postponing the consideration of this potentially resource-intensive project until the next Council convenes.]

3. Council Report

1. When should the Council meet to ratify the Annual Report? December 2000 or January 2001?

[Staff recommendation: Staff recommends that the report be ratified in December. Delivery to Congress can be delayed until late January to accommodate inclusion of the law enforcement agencies’ statistics.]

2. Should the Council meet once more between now and the ratification meeting to address outstanding issues?
3. Drafting responsibilities and scheduling -- consideration of Staff plan:

[Staff recommendation: Consider the proposed drafting schedule, attached.]

4. How many copies of the Report should be printed? Should the Report be made available to the Public (e.g., via posting on agency websites)?
5. When and how should the Council deliver the Report to Congress?

VII. Other Business

Council Training Statement Read by Under Secretary Dickinson August 4, 2000

In January of this year, the Council began discussing coordination of international training. Since then, we and our staffs have worked to hard in an effort to reach a consensus on how to organize ourselves to maximize our success in improving existing coordination efforts, and in moving beyond those efforts into new areas of coordination. At this time, we are setting aside the issue of organization because we believe the Council’s resources will be better spent highlighting our individual and collective accomplishments. The Member agencies will decide how to improve coordination.

All of the agencies at this table bring distinct and valuable skills to bear on this process, and we each have our own, distinct priorities and commitments. Through this process, we have all come to fully understand and appreciate the importance of coordination, and we commit to this important task as individual agencies, respecting both our individual and collective missions.

Recognizing the importance of this issue, Council meetings should continue to provide a forum for agencies to report on coordination issues, and coordination efforts carried out by Council Member agencies will be reflected in the Council's Annual Report. In these ways, the Council can continue to demonstrate its support for Member agencies’ training coordination efforts in a productive manner.

  APPENDIX - TAB C

Federal Register Notice #1 - Industry Responses (in alphabetical order by organization)

July 7, 2000

The Honorable Q. Todd Dickinson

Under Secretary of Commerce for Intellectual Property

& Director of the United States Patent and Trademark Office

Box 4

Washington, D.C. 20231

Dear Mr. Secretary:

Intellectual property laws in the United States and around the world provide incentives for Bristol-Myers Squibb to invest the resources necessary to discover, develop and market new products that fulfill our mission. During the 1990’s, progress was made in the United States and abroad in raising the standards of available intellectual property protection. The Agreement on Trade-Related Aspects of Intellectual Property Rights and the North American Free Trade Agreement set forth minimum standards for intellectual property protection and enforcement. As we begin the 21st century, the National Intellectual Property Law Enforcement Coordination Council (IPCC) has an opportunity to see that these minimum standards are implemented and enforced.

In the pharmaceutical industry, counterfeit goods negatively impact Bristol-Myers Squibb, but more importantly, they negatively impact the health of patients in the United States and around the world. (The term "counterfeit goods" as used in the pharmaceutical industry encompasses goods which purport to be from a source different than their actual source as well as goods that are mislabeled, adulterated, improperly packaged or subpotent.) The IPCC can take a leadership role in addressing the issue of counterfeit drugs by coordinating activities of United States and international agencies which do not individually have the expertise or resources to address the problem.

On a worldwide scale, the World Customs Organization (WCO) has expressed interest in the problem of counterfeit drugs. WCO is, however, limited in two areas: awareness and resources. What are the problem areas and how do law-enforcement officials differentiate counterfeit drugs from legitimate drugs? How can the resource issue be addressed so that law enforcement officials are not overwhelmed at the borders and ports by the volume of products?

A task force of the United States Customs Service, Drug Enforcement Agency and Food and Drug Administration has been formed to address United States/Mexican border issues of illegal drug entry. The IPCC can support the work of this task force and encourage formation of a parallel task force to address issues of illegal drug entry across the United States /Canadian border. Training for United States Customs Service personnel (along with other law enforcement personnel) can be implemented (with the assistance of industry if desired) so that law enforcement personnel are aware of the issue of counterfeit drugs and are aware of the techniques for differentiating counterfeit from legitimate materials.

The issue of counterfeit drugs is clearly not solely a United States issue and the IPCC would benefit United States citizens and citizens of other countries if it raised this issue to a higher level with law enforcement organizations around the world.

Respectfully submitted,

Bristol-Myers Squibb Company

by Donald J. Barrack

Vice-President & Senior Counsel - Patents

-----Original Message-----

Coordination Council Comments by

the Center for Information, Technology & Society

June 16, 2000

Under Secretary of Commerce for Intellectual Property and

Director of the United States Patent and Trademark Office

Box 4

Washington, DC 20231

Dear Sirs:

I write as Director of the Center for Information, Technology &

Society -- a nonprofit group that began at MIT and is dedicated to the

improvement of learning and education.

In the area of intellectual property, I was a consultant to the U.S.

Office of Technology Assessment. For example, I was a contributor to

_Intellectual Property Rights in an Age of Electronics and

Information_ (U.S. OTA-CIT-302, LOC Card Number 86-600522. My

contribution is accessible at --

www.eff.org/pub/Groups/CITS/Reports/cits_nii_framework_ota.report

I suggest that there is a very important issue that the new

coordination Council must address -- "Fair Use" in a digital age as

put forth in Sections 706(a) and (b) of the U.S. Copyright Act.

There is a dangerous imbalance between this section of the Act to

promote learning by the dissemination of information, under, say, the

concept of the "teachable moment" and the severe penalties of Section

506 of the Act for copyright violations.

The effect of this imbalance has been extremely chilling to the free

flow of information and ideas on the Internet.

Contrary to the general impression that the Internet is a lawless

activity -- copying at will, I have found that any and all of the

professional discussion groups are extremely reluctant to provide any

information that may be seen to violate copyright -- despite, say, its

timeliness for encouraging discussion at the teachable moment.

At best, these discussants post URLs that are either quickly

out-of-date or where there are onerous requirements placed on the

reader. For illustration I cite the legal contract of the _New York

Times_ which -- to view any of their articles online, the viewer must

"sign a contract" that requires the viewer/user of the information to

"indemnify and hold harmless" the New York Times in any copyright

issues that may arise out of the use.

This contract is extremely chilling for the following reason. If I

were to view a document at the _Times_ and were that document to be

disseminated on the Internet (under Fair Use), this contract requires

me to pay for any and all legal costs the _New York Times_ might spend

-- regardless of whether a court of law might decide such usage did

not constitute a violation of copyright.

Whether we believe the _Times_ would enforce this contract is not the

point. But rather, this contract and the penalties in Section 506 of

the Copyright Act are all evidence of a lop-sided situation where

almost no one dares share information from copyrighted sources under

Fair Use.

The very visibility of the Internet places everyone in a "fish bowl."

So, where I might have read a newspaper article and shared photocopies

with some colleagues under Fair Use -- on the Internet -- this is open

for all to see if, for example, the sharing is on a "listserve" which

while a "private discussion" amongst colleagues, the listserve

postings and archives are available on the Internet.

And, with indexing sites such as AltaVista, and web-enabled

listserves, it becomes too easy for publishers to identify potential

infringers.

With "distance learning" the problem becomes even greater. Professors

are used to being able to introduce materials in their courses at the

"teachable moment." Later, when the material passes the teachable

moment, they must then pay copyright fees.

And, fortunately, some of these courses and materials are available to

others via the Internet. For example, Professor Fisher's course on

Intellectual Property taught at the Harvard Law School placed many

articles on the Internet that were current, crucial and at the

teachable moment.

But this was one brave step, which few others have followed.

***

Let me make one further illustration. To provide Melrose, MA

students with learning opportunities in Computers and Networks

I volunteer teach a course here called "Computer Lab/Shop."

It has been very successful, and already some of my students

are being offered college placement with scholarships.

One of the projects is to expand the functionality of a

program that was published by Ziff-Davis in 1988.

Ziff-Davis published "source code" as a way of teaching its

readership. Ziff-Davis made the "source code" freely

available on the Internet and it resides in numerous archives

on the net.

I take that same "source code" and teach my students skills

by having them add features to the program.

My students now wish to, in the spirit of open software, give

back to the net the features they have added.

Knowing that this is a derivative work, and knowing the Section

706 does not clearly address the extent of Fair Use for

derivative works, I contact both the copyright office of

Ziff-Davis and the editor of _PC Magazine_, and am refused

permission to release this derivative work -- even though I

am willing to assure the quality of the derivative work.

The publication of this derivative work, for an operating

system (DOS) that is no longer widely used, and which would

in no way reduce the income of Ziff-Davis is refused simply

because, I presume, the publisher wants no precedent in this area.

I spoke with Rep. Edward Markey's aids about the problem. I

noted the chilling effect of Section 506, and how the involvement

of the Melrose Public School System would be vulnerable.

However, they said that they could do nothing to intervene.

So many hours of valuable work by my students sit unused by others

who could learn and benefit from what they have done.

***

Unfortunately, in this era, the political concerns about publisher

rights under copyright are running the opposite direction. And it is

often said in study Centers such as ours that no political process

protects both sides of an issue at the same time.

Yet we fully recognize the public good value of the free flow of

information; as we also recognize the importance of copyright to

ensure the production of good, quality information.

In response to this need for balance, I suggest that the Council, as

an early matter of business, create two sub-councils -- one populated

with those who would wish to promote fair use and the flow of

information -- the other populated with those who wish to protect too

free a flow of information because of its affect on the production of

information.

Each side can work out guidelines appropriate for the digital age, and

one of the matters of the Council's business can be to reconcile

differences in suggested guidelines and provide a clear signal to

publishers and the public of the resulting balance.

Without the explicit treatment of this issue, I fear that the right

of Fair Use will be further abridged as the Council might focus its

efforts on further restricting the free flow of information.

Very truly yours,

(e-mail header certifies signature)

W. Curtiss Priest, Ph.D.

Center for Information, Technology & Society

466 Pleasant Street

Melrose, MA 02176-4522

BMSLIB@MIT.EDU

VIA COURIER & U.S. MAIL June 22, 2000

Q. Todd Dickinson

Under Secretary of Commerce, Intellectual Property

Director, U.S. Patent and Trademark Office

2121 Crystal Drive

Crystal Park II Building

Suite 901

Washington, D.C. 20231

Dear Mr. Dickinson:

The International AntiCounterfeiting Coalition, Inc. ("IACC") appreciates the opportunity to submit these comments in response to the Council’s request for comments published in the June 5, 2000 Federal Register (65 Fed. Reg. 35611).

The IACC is the largest multi-national organization devoted solely to combating product counterfeiting and piracy. The IACC’s membership consists of approximately 180 corporations, trade associations, intellectual property counsel, investigators, and product security companies located in over 30 countries. The IACC membership includes a cross-section of industries – autos, apparel, consumer products, luxury goods, software, motion pictures, sound recordings, and others. The members’ combined sales exceed $500 billion.

INTRODUCTION

Intellectual property (IP) enforcement has not traditionally been viewed as "substantive" IP, but it should be clear to anyone remotely involved in IP that enforcement is the central issue because, without enforcement, these rights owners believe they have are meaningless.

Due to the Council’s make up, the IACC believes it is important to underscore one basic issue – the constituency. While the U.S. Patent and Trademark Office (PTO) and the Copyright Office are fully dedicated to IP responsibilities, these responsibilities differ significantly from the other Council members. We appreciate the fact that the other Council members have full-time staff dedicated to IP, but they differ because of:

• the rotation of personnel at the operational level;
• the level of training specifically in IP issues; or
• the more limited scope of training and education in IP issues.

The two primary constituencies that benefit from effective IP enforcement are the IP owners and consumers. The government’s objective in promoting effective IP enforcement should be to facilitate (1) the IP owners’ ability to benefit from the investment made to research, development, and marketing of new products; and (2) the marketing of goods to consumers without subjecting them to deceptive and fraudulent practices by pirates and counterfeiters offering substandard, defective, and misleading goods.

The IACC recognizes, as we are sure the Council members recognize, that the authority and roles of the agencies differ depending upon whether activities are pursued domestically or abroad. This difference arises from the fact that law enforcement agencies and the IP policy agencies engage in different activities, though there may be some overlap in certain instances.

Despite different agency missions and legal authority, the IACC believes that efforts to promote effective IP enforcement must be a cooperative government-industry effort and should be done with minimal hurdles that hinder effective enforcement.

Finally, the IACC views "IP enforcement" in a broad sense. Enforcement of IP laws that result in effective protection must involve civil, administrative, and criminal aspects of protection and enforcement. Thus, it is not limited to law enforcement merely in terms of police-type organizations. IP enforcement involves both operational and policy level attention. While the IACC recognizes the operational responsibilities of Department of Justice ("DOJ"), FBI, and Customs on the domestic front, the other Council members have an important role regarding domestic legislation that affects the domestic IP regime.

Internationally, "IP enforcement" involves training and education on international standards of IP enforcement – bilateral, multilateral, and regional initiatives (e.g., APEC, FTAA, UNECE). In view of the fact that the TRIPs enforcement provisions address civil and administrative enforcement (except for one article), it is clear that a great need exists to discuss civil and administrative enforcement regimes, as well as criminal enforcement. Thus, internationally, more responsibility falls on the substantive IP entities (PTO, Copyright Office) because of their ability to integrate substantive international standards into various training programs conducted worldwide.

THE COUNCIL’S AGENDA

The U.S. Government is, in the IACC’s opinion, the most aggressive government advocating high levels of IP protection abroad to protect American IP owners doing business in foreign markets. As such, the Council must recognize that our domestic IP enforcement regime is subject to scrutiny by our trading partners who study our IP enforcement regime to counter U.S. efforts to obtain higher levels of protection abroad. Further, domestic IP enforcement policy cannot and should not be totally divorced from what the United States seeks to obtain in the international arena, whether in the bilateral or multilateral context. Therefore, it is important that the domestic IP enforcement regime be a superior system that can be defended as one of the best, if not the best, when the United States insists on higher levels of enforcement abroad.

What, if any, domestic policy-level law enforcement issues should the Council address?

a. Penalties

The IACC recommends that government agencies and the private sector work to statutorily establish the value of the infringed-upon item as the starting point for determining the value of pirate and counterfeit goods in all criminal IP cases. No reason exists to allow calculations to be made on the basis of the price of the infringing item. Adjusting the calculation of penalties based on the price of the infringed-upon item will improve domestic IP enforcement regime.

In addition, changing the base calculation and requiring that the price of the infringed-upon item be used to make penalty calculations would make calculations consistent with an existing statutory provision that applies to civil remedies. A provision of the U.S. Customs law, 15 U.S.C. § 1526(f), instructs Customs to use the value of the genuine goods when a civil fine is being imposed, though Customs has the discretion in deciding when to impose this fine. Although the Customs provision applies to cases involving counterfeit trademarks, it does establish a statutory standard for calculating civil fines in an administrative case. However, it seems inconsistent in criminal cases, whether copyright or trademark, that the value of the infringing item would be used to calculate pecuniary harm.

b. Criminal Cases

In domestic enforcement (FBI, Customs, and DOJ), copyright piracy and trademark counterfeiting must be deemed by law enforcement agencies as a serious crime. Despite last year’s announcement by DOJ that it was initiating an increased effort against IP crimes, copyright and trademark owners remain disappointed by the number of federal criminal IP cases initiated. We recognize that cases initiated under this recently announced effort may not be reflected in DOJ’s FY 1999 Accountability Report, because these cases are in their initial investigatory stages. Nevertheless, the number of cases filed by DOJ reflects that federal law enforcement authorities do not consider IP theft as a serious crime deserving greater enforcement and penalties.

c. Policies as a Barrier to Effective Enforcement

Initially, the IACC commends Customs for its long record of IP enforcement – administrative and criminal. During the past decade, seizures of thousands of infringing shipments valued in millions of dollars have been used to highlight the need for the type of border enforcement industry seeks to find abroad.

Unfortunately, the IACC views Customs’ recent imposition of new procedures as counter to effective enforcement. Customs’ decision to review all private sector training materials has caused delays and postponements in training field Customs officers in the detection and identification of pirate and counterfeit goods. The IACC and other IP owners and associations learned of this policy during a one-day Customs-industry meeting in March 2000. The manner in which Customs’ policy was changed after years of practice denied IP owners any transparency, something that the U.S. Government and industry constantly seeks for conducting activities abroad.

Regarding this policy, several questions should be asked and answered:

The IACC could continue to list additional questions regarding these recent policy changes. Ultimately, however, the Council and Customs should recognize that when industry training is being conducted, the enforcement agencies have their own ability to distribute material and reinforce internal procedures. The IACC has received reports from members indicating that:

• reviews have, at times, taken nearly two months without resolution;
• rewriting, reprinting, and distribution negatively impacts enforcement (because field officers have no information for periods of time); and
• industry time is wasted on disputes over words in manuals rather than assisting enforcement.

IACC members are committed to training and educating Customs and other law enforcement officials regarding the identification of suspect and infringing goods. Unfortunately, the new Customs policies unduly burden IP owners by imposing on owners the duty of ensuring that Customs officers follow internal policies rather than Customs ensuring that its officers follow directives and guidelines.

These procedures also overlook another major issue: resources. IP owners, like government agencies, must work within budget constraints. IP owners cannot spend thousands of dollars to reprint materials and pay to transport these materials all over the country merely because one Customs official dislikes a word or two in a manual. IP owners are combating counterfeiting and piracy worldwide, a very expensive endeavor. These Customs procedures have real-world consequences.

Customs’ IP enforcement role differs from other traditional Customs responsibilities. Most administrative violations involving Customs is a matter between Customs and an importer. In IP cases, there are three parties, Customs, the IP owner and an infringer. Customs should be cognizant that every new procedure that burdens an IP owner benefits the infringer, because the government agency, busy ensuring that new procedures are properly followed, is not likely to be placing the same amount of additional effort toward increasing enforcement against imports of pirate and counterfeit goods.

What, if any, international policy-level law enforcement issues should the Council address?

a. Objective

The IACC believes that the international objective is to see that foreign governments create and implement an effective IP enforcement system, i.e., one that has effective civil, administrative, and criminal procedures and penalties. In view of the TRIPs enforcement provisions, these civil, criminal, administrative and border enforcement standards should be the starting point in advocating elements of an enforcement system. In addition, where the United States can obtain higher levels of IP enforcement, this goal should be pursued in view of many ambiguities in TRIPs. Furthermore, in view of the technological developments since TRIPs was concluded and the WIPO treaties negotiated in 1996, IP enforcement issues must include those related to the Internet.

b. Coordination

Initially, the IACC recommends that the Council address coordination issues affecting the Council itself. The IACC believes that enforcement initiatives, especially training and education, regardless of what agency is involved, must occur in an IP enforcement context. The IACC is aware of past interagency efforts at international "IP Enforcement Training" that were based on training agendas that made no mention of IP. While IP enforcement training necessarily includes operational training, even in educating "police" organizations, it is necessary to discuss what constitutes a copyright or trademark violation so that law enforcement officers have some basic familiarity of the type of IP involved and the basic differences between the types of IP.

Several issues arise in coordinating international activities, including the development of a list of priority countries and ensuring that the training teams understand the international IP enforcement issues sufficiently to provide the necessary assistance. Regarding the latter point, the IACC, recognizing that the United States has a good IP enforcement regime, does not necessarily believe that most countries can adopt the elements and structure of the U.S. IP enforcement system easily. As a result, those who engage in IP enforcement training and education should understand the difference between "the right thing to do" (e.g., meeting international standards) and "the right way to do it" (e.g., foreign IP enforcement systems need not copy the U.S. systems as long as the implementation fulfills international obligations). Training teams should consist of those who have actual IP enforcement experience to be able to offer foreign officials suggestions, recommendations, and alternatives. Absent such personnel, private sector support of training programs must be considered.

Coordinating activities must include prioritizing in order to use limited resources in an effective and efficient manner. During the past few years, international IP enforcement issues have strained existing resources due to the increased requests and demands for training, education, and support of programs. As a result, we recommend the Council conduct a critical review of those countries listed for training and education programs. At present, it is not apparent that a critical assessment is conducted in deciding what countries to devote resources to for IP technical support and assistance.

In view of the fact that there are few people within the agencies sufficiently knowledgeable to conduct IP enforcement training abroad, the IACC recommends that a small number of core countries be identified to receive IP enforcement training. Finally, in determining the countries that are to receive technical assistance for IP enforcement training, the decision should be based upon substantive IP review. The IACC views a difference between those countries needing general technical assistance for law enforcement and those needing assistance for IP enforcement. For the latter decision in the international arena, the substantive IP agencies should have the primary responsibility for such assessments.

c. Accountability

Internationally, the IACC finds that a major omission exists in current policy efforts – accountability. For several years, the agencies represented by the Council have engaged in programs in the United States and abroad to train and educate foreign judges, prosecutors, police officers, customs officials, and others regarding IP enforcement. Unfortunately, despite the millions of dollars spent on travel, training materials, and the time devoted to these efforts, nothing exits to assess the results. The IACC is reluctant to rely on statistics regarding seizures, prosecutions, and any penalties. The IACC recommends that when any U.S. Government resources are used to provide IP enforcement training for foreign government officials, the names, contact information and titles be publicly available to the IP community to give them a resource with which to obtain IP enforcement assistance. In this way, industry can assess if those being trained are providing assistance in obtaining IP enforcement.

d. Other

The IACC supports the implementation of laws abroad that require greater oversight of optical media production equipment and the imposition of penalties in order to combat the proliferation of pirate production. In addition, we support the Council’s efforts to raise the issue of higher levels of protection for famous marks that takes on greater importance in a global economy.

COUNCIL-INDUSTRY COOPERATION

In what ways can the Council assist the intellectual property industries in creating domestic and international environments conducive to enforcement of intellectual property rights?

The IACC encourages the Council to continue to promote judicial reforms, rule-of-law, and transparency abroad. The IP industries, through our participation in IP enforcement programs, promote these themes. A joint effort in espousing these principles and providing advice about how changes might be made abroad is constructive.

The IACC recommends that each U.S. Government agency examine its procedures and policies to determine if such procedures and policies are conducive to effective and efficient enforcement. As discussed above, the Customs review of training manuals diverts resources from enforcement to unnecessary administrative obstacles. This is one example of an administrative exercise that the IACC would not want to confront abroad, though the fact that it is being done in the United States risks such a practice being adopted abroad. United States policies and procedures do not exist in a vacuum; foreign governments are interested in what U.S. agencies do and, in many cases, strive to mirror our policies and procedures.

Therefore, as U.S. agencies adopt procedures and assess procedures and policies abroad, one major question is whether a new policy/procedure or a change in an existing policy/procedure creates greater obstacles for the IP owners while doing nothing to deter pirates and counterfeiters.

In what ways can the Council enhance the enforcement of intellectual property rights while facilitating legitimate trade?

Information is the key element. The Council, as well as IP industries, must promote greater communication between IP owners/representatives and the relevant enforcement authorities here and abroad. The more knowledge, training, and education enforcement authorities have the more efficient they will be in determining what goods to examine and what goods to flow freely.

Are there gaps or impediments in existing law enforcement regimes that, if remedied, would enable rights-holders to better protect their intellectual property rights?

18 U.S.C. § 2320

The IACC recommends that agencies and industry undertake to strengthen this provision against counterfeiting. Our specific recommendations are as follows:

In what ways can the intellectual property industries contribute to or assist the Council in carrying out its mission of coordinating domestic and international intellectual property law enforcement-related activities?

The IACC is committed to:

• continuing its program of training and education of law enforcement officers;
• participating in international IP enforcement training/education programs;
• identifying countries that have inadequate systems and specific issues that are problematic; and
• providing potential solutions to IP enforcement problems.

The IACC staff and members have participated in and are prepared to continue working with the U.S. Government and intergovernmental organizations to promote improved IP enforcement. The IACC has been involved in training for foreign officials, whether through U.S. Government funded programs or programs funded by intergovernmental organizations. Through these efforts, the IACC promotes existing international standards and identifies TRIPs-plus enforcement that should be considered. The IACC supplements the U.S. Government’s efforts here and abroad and will strive to continue these efforts.

In what ways can the Council assist U.S. Government interaction with its foreign counterparts on intellectual property law enforcement-related activities?

Efforts to have a meaningful discussion with foreign governments on IP enforcement issues requires that the U.S. Government understand its counterparts’ IP enforcement regime. The IACC recommends that greater use be made of an existing one-page questionnaire (with changes as necessary) whereby either the Council or U.S. Embassies abroad provide information regarding the IP enforcement system of a given country. This would allow improved planning for training and education programs.

The one-page questionnaire was previously used prior to bilaterals with Paraguay and Malaysia, but has not been used worldwide. However, by understanding a foreign counterparts’ enforcement system, training programs can be customized and targeted to the appropriate agencies of a given government and identify their weaknesses in the enforcement process. Gathering this information requires more inquiries by U.S. Embassies, FBI legal attaches, and Customs attaches. In addition, where questions remain, the private sector may be able to answer questions regarding the enforcement systems of foreign enforcement regimes.

CONCLUSION

To be effective, the Council must be led by an agency with a broad vision that understands what constitutes IP law enforcement: an integrated civil, administrative and criminal system; possess experience in various areas of IP enforcement; apply that experience to different government structures; and ability to advise foreign government officials on implementing and meeting international obligations through alternative enforcement regimes, even those that differ from the U.S. enforcement structure.

Both here and abroad, the IACC desires an effective civil, administrative and criminal IP enforcement system. The broad view is absolutely necessary to ensure an effective system is implemented. Civil, administrative, border, and criminal IP enforcement are critical components of an effective system. No one enforcement component necessarily outweighs the other when an integrated system of effective enforcement is needed.

If you have any questions or comments regarding this submission, please do not hesitate to contact me directly at telephone 202-624-7283, or by email ttrainer@iacc.org).

Respectfully submitted,

Timothy P. Trainer

President

cc: Raymond W. Kelly, U.S. Customs Service

Alan P. Larson, U.S. Department of State

Robert S. LaRussa, U.S. Department of Commerce

Marybeth Peters, U.S. Copyright Office

James K. Robinson, U.S. Department of Justice

Richard W. Fisher, Office of the U.S. Trade Representative

Comments of the

International Intellectual Property Alliance

on Issues Related to the Policies and Agenda

for the National Intellectual Property Law Enforcement Coordination Council

July 7, 2000

The International Intellectual Property Alliance (IIPA) submits these comments in response to the June 5 request for public comments circulated by the Co-Chairing agencies of the National Intellectual Property Law Enforcement Coordination Council (NIPLECC). See 65 Fed. Reg. 35611 (June 5, 2000) and 65 Fed. Reg. 39601 (June 27, 2000).

These comments represent the collective views of the seven associations which comprise the IIPA. Our comments outline the actions which NIPLECC could take in both the domestic and international law enforcement arena.

ABOUT THE IIPA

The International Intellectual Property Alliance (the "IIPA" or "Alliance") is a coalition formed in 1984 consisting of seven trade associations, each of which represents a significant segment of the copyright industry in the United States. The IIPA consists of AFMA (formerly the American Film Marketing Association), the Association of American Publishers (AAP), the Business Software Alliance (BSA), the Interactive Digital Software Association (IDSA), the Motion Picture Association of America (MPAA), the National Music Publishers' Association (NMPA) and the Recording Industry Association of America (RIAA).

The IIPA represents more than 1,450 U.S. companies producing and distributing works protected by copyright laws throughout the world: all types of computer software, including business software and entertainment software (such as videogame CD-ROMs and cartridges, personal computer CD-ROMs, and multimedia products); motion pictures, television programs and home videocassettes, video CDs and DVDs; music; records, CDs and audiocassettes; and textbooks, tradebooks, reference and professional publications and journals (in electronic and print media).

The U.S. copyright-based companies are the leading edge of the world's high technology, entertainment, and publishing industries. According to Copyright Industries in the U.S. Economy: The 1999 Report, prepared for IIPA by Economists, Inc., the core copyright industries accounted for $348.4 billion in value added to the U.S. economy, or approximately 4.3% of the Gross Domestic Product (GDP) in 1997 (the last year for which complete data is available). In 1997, the total copyright industries accounted for $529.3 billion in value added, or approximately 6.53% of GDP.

IIPA’S VIEWS ON NIPLECC’S DOMESTIC LAW ENFORCEMENT MISSION AND AGENDA

NIPLECC’s statutory mission is broadly "to coordinate domestic and international intellectual property law enforcement among federal and foreign entities.''

Each of these associations has been involved, to varying degrees, in both criminal infringement actions and civil intellectual property litigation here in the United States, at both the federal and state level. They have been engaged for decades, at investigative and operational levels, in supporting criminal prosecutions and conducting civil actions to combat traditional forms of piracy (e.g. unauthorized reproduction, distribution and sale on physical carriers and public performance piracy of all kinds) of motion pictures, sound recordings, music, and business and entertainment software. More recently, these associations and their member companies have taken on the fight against on-line piracy by initiating investigations, supporting criminal prosecutions, and filing civil cases. They have worked closely with federal officials to support new efforts, including new legislation, to prevent the potentially massive threat to their business through uncontrolled, unauthorized upload, transmission, download and unauthorized use of their creative products in this new on-line environment.

Enforcement of rights under copyright at the domestic federal level is the direct responsibility of only two members of NIPLECC. These agencies are the Justice Department (including the Federal Bureau of Investigation) and the U.S. Customs Service. While the Commerce Department, the Patent and Trademark Office and the Copyright Office have a role in domestic policy issues affecting the substantive copyright law and its enforcement provisions, none of these agencies is actually engaged in enforcement of rights under copyright. The remaining three agencies, the Office of the United States Trade Representative, the State Department and the International Trade Commission have almost no role to play in the area of domestic enforcement. Therefore it is important to be cognizant of the division between operational matters (e.g. hands-on anti-piracy investigations and criminal prosecutions) and non-operational matters.

Operational Matters:

• The urgent need for more effective prosecutions of copyright offenses at the federal level

In the domestic arena, the primary and most urgent concern of our industries is the need to improve federal copyright enforcement by the DOJ, FBI and Customs. Because this is almost entirely an operational issue within the jurisdiction of DOJ, the FBI and Customs, we believe that it would unnecessarily complicate the mission of these agencies to create another level of bureaucracy on top of these agencies’ primary mission and jurisdiction. Therefore, we believe that, at most, NIPLECC as a separate entity should limit itself to advisory and consultative mechanisms, some of which are discussed below. It would be counterproductive to involve other NIPLECC agencies in any operational domestic enforcement matters.

Our associations, and in turn our member companies, will continue to contact and work with these two NIPLECC agencies (Justice and Customs, along with the FBI) to conduct their enforcement programs on a confidential, case-by-case basis, and where broader enforcement policy issues are involved, with senior level officials of these agencies and, as appropriate, with the Congress. We believe it would unnecessarily complicate the difficult job of establishing enforcement priorities and then implementing them to involve NIPLECC or any other federal agencies. Instead, we believe the relevant enforcement agencies should focus their attention on enforcing the U.S. Copyright Act.

In the past year, intellectual property crimes have received increased attention from federal law enforcement agencies. One year ago the DOJ, FBI and Customs announced their "Intellectual Property Rights Initiative." This established, among other things, an infrastructure whereby seven districts would make intellectual property rights issues a priority issue. Our associations strongly supported the launching of this initiative, particularly in light of the growing complexity of IP crime and the recent explosion of online piracy of copyrighted works. The impact and significance of such piracy will only grow as technology continues to develop, making intellectual property crimes easier to commit and more difficult to detect and root out.

Congress recognized the importance of criminal deterrence of electronic piracy by enacting the No Electronic Theft (NET) Act in 1997. Here in the United States, copyright owners and federal authorities were stymied for a lengthy period of time until the U.S. Sentencing Commission recently adopted its amendments to the Sentencing Guidelines to implement the NET Act. Unfortunately, with the amended guidelines now in place, there remains a paucity of prosecutions in this area, although more are reported to be in the investigatory pipeline.

When it comes to domestic criminal copyright law enforcement at the federal level, the very simple fact is that more federal cases need to be taken by federal prosecutors, including Internet cases. Our industries are presenting such cases to the authorities, and we are concerned that the federal response has been far less than we anticipated.

In addition to working with federal law enforcement agencies, several of our associations and member companies also work diligently with state and local law enforcement authorities to coordinate seizures of pirated products under applicable state laws. (State enforcement measures are properly beyond the scope of possible NIPLECC activities.)

We see a most urgent and critical need for the DOJ, the FBI and Customs to support an examination of the internal processes within their agencies in order to expedite the investigation and prosecution of federal criminal copyright cases. We believe that there are many more cases ripe for criminal prosecution than are currently being taken.

We believe that NIPLECC can encourage its law enforcement member agencies to take concrete actions to fight copyright piracy within this country. NIPLECC’s support for additional measures, such as more training, compiling statistics and promoting educational messages (outlined below) could also serve to enhance the copyright industries’ anti-piracy efforts here in the U.S.

• More enforcement training for federal officials

There is always a need for more and better training of federal officials involved in on-the-ground law enforcement activities. NIPLECC (or a subcommittee of NIPLECC) might be effective in discussing and reaching consensus on a broad program of trainings. Training in anti-piracy investigation, seizure, identification and evidentiary techniques and prosecutorial issues could encompass many groups of individuals, including for example: FBI agents, Customs officers, postal investigators, Assistant U.S. Attorneys (AUSAs), U.S. Attorneys, and U.S. District Court Judges.

Our associations (as well as our respective member companies) have been involved in many and various training activities with these agencies over the years. We stand ready to continue to provide domestic training on investigative techniques to federal offices, to their best ability. Our associations already have good working relationships with several of the investigative agencies and are able to work with them on training programs’ agendas and schedules.

We wish to continue to broaden and deepen our roles as experts and contacts to assist in various training endeavors. We request that, to the extent possible, the copyright private sector be able to contribute to programs’ designs/agenda in order to ensure maximum impact of the training. We also ask that the lines of communication be open, and that the private sector be informed of upcoming events. Our goal will always be to have these training activities result in additional investigations, more prosecutions and better deterrence against all types of intellectual property theft.

Non-Operational Matters:

There are some areas in which NIPLECC, or a subcommittee within NIPLECC, could work together at the non-operational level to improve the climate for copyright enforcement generally. We briefly outline these areas below.

• Compilation of enforcement statistics here in the U.S.

While several agencies (e.g. Justice, FBI and Customs) do collect criminal copyright-related enforcement statistics arising out of actions taken within the U.S. or at its borders, this information often lacks a useful degree of specificity. For example, the Justice Department does not distinguish between the specific kinds of criminal copyright cases brought under Title 18 (are these actions involving records, music, motion pictures, videogames, business software or other). Information on restitution awards and criminal fines paid and collected in federal criminal copyright infringement cases is not compiled. We believe that NIPLECC or a subcommittee of NIPLECC could work together to provide all the relevant agencies with ideas, recommendations and tools to improve their statistical-gathering capabilities.

One area where the domestic enforcement agenda and the international agenda overlap is in the area of compliance by the U.S. with its TRIPS Agreement enforcement obligations in the World Trade Organization (WTO). The collection of accurate enforcement statistics is a key element of this compliance agenda and any U.S. statistics system should be a model for similar activities by other WTO trading partners on a global basis, many of whom have enforcement records that do not meet TRIPS obligations and who would benefit from keeping accurate records of the performance of their enforcement systems.

• Coordination of educational messages on the domestic front

Building awareness of the law among members of the general public is key to the success of any long-term enforcement efforts. This is one area where an interagency approach might prove feasible and effective. NIPLECC, or a subcommittee of NIPLECC, might serve as a coordinating point for preparing and distributing public materials regarding the importance of effective domestic copyright enforcement. Such materials could be distributed to both U.S. government officials (here and abroad) as well as made available for the public at large. Such documents would serve as a supplement, not a substitute, for existing informational materials which already are available through the individual federal agencies.

Effective enforcement of the law does promote and facilitate legitimate trade by removing illegitimate, piratical trade from the marketplace. Again, to support effective enforcement, we encourage open channels of communication between copyright holders and federal law enforcement entities on investigatory and prosecutorial matters. NIPLECC could serve an educational role in disseminating straightforward messages to the public that "respect for the copyright law" and that "piracy is theft." We believe that NIPLECC could support each of its seven member agencies to devise a public relations plan to promote these kinds of educational messages within their own agencies’ already existing infrastructure. For example, agencies’ websites could be updated to relay this common message.

IIPA’S VIEWS ON NIPLECC’S INTERNATIONAL LAW ENFORCEMENT MISSION AND AGENDA

IIPA believes that there are several areas related to law enforcement at the international level where NIPLECC could perform a central coordinating role for the U.S. Government. These areas include: (a) working with industry to prioritize and assist in training and other technical assistance programs offered by U.S agencies abroad and in the U.S., (b) centralizing information on U.S. government agency activities, including training activities, in the intellectual property field, and (c) working directly with the U.S. private sector to shape effective enforcement programs. It is important to clarify that IIPA sees NIPLECC as a coordination and information clearinghouse, and that NIPLECC would not have any authority or mandate to approve or disapprove of any single agency’s ongoing activities. IIPA believes that improved interagency communication and coordination should be the primary missions of NIPLECC in the international realm. Below is a non-exhaustive list of the kinds of activities NIPLECC could undertake and/or oversee with respect to international copyright-related matters.

• Work with the private sector to prioritize U.S. intellectual property-related trainings, here and abroad

NIPLECC’s seven members should meet regularly with each other and with private sector representatives at the operational level to prioritize training activities. NIPLECC members also should share their agency’s plans for intellectual property rights-related trainings with foreign officials. In general, these kinds of trainings take two forms. First, there are a wide variety of training activities and symposia planned abroad by U.S. agencies. Second, various agencies sponsor a large number of international visitors who come to the United States to receive IP-related training. Member agencies, acting through NIPLECC, should share information about their training programs and projects well in advance so as to prevent waste and unnecessary duplication of activities. At the same time, NIPLECC itself should not have any authority to preempt the specific plans of individual agencies. We would hope, however, that this increased information-sharing would result in the reduction of any duplication of resources. An additional by-product of these agencies sharing their training efforts to NIPLECC would be for NIPLECC to compile and maintain current lists of U.S. government-provided technical assistance programs and missions on intellectual property rights.

Furthermore, NIPLECC should invite private industry participation and input with respect to identifying priority countries and/or foreign officials to receive and/or participate in IPR-related training events. We hope that NIPLECC can encourage more transparency in the development of these IPR technical assistance programs conducted here and abroad.

• Expand training opportunities and industry participation

With respect to improving the international law enforcement environment, IIPA believes that NIPLECC, in its coordinating role, can continue to encourage its member agencies to conduct IPR training programs which support improved law enforcement and provide educational training on current IPR-related issues. Training programs by U.S. government agencies can cover both investigatory programs as well as programs aimed at foreign policy-makers.

The TRIPS Agreement provides the foundation for enforcement elements across civil, criminal and border measures which each WTO member country needs to have in place and in operation. While many countries have made efforts in recent years to raise their substantive levels of copyright protection up to the minimum standards outlined in TRIPS, the biggest challenge our industries’ continue to face is ineffective enforcement. A country fails to be in compliance with TRIPS if its law merely provides those measures on-the-books but its legal system fails to enforce those measures. These deficiencies in national laws and legal systems, if corrected, would enable copyright owners to better protect their rights.

IIPA believes that more trainings for foreign officials on copyright enforcement matters is needed. For example, FBI officials lead copyright-related trainings at their International Law Enforcement Academies (ILEA) in Budapest and Thailand. These trainings have been extremely useful, both for training foreign officials and introducing these officials to the industries’ investigators and experts in the region. We strongly encourage that more trainings with copyright emphasis be conducted. Issues like cyber-hacking, banking fraud and other white-collar crimes are now being placed on agendas at international governmental forums. It is not sufficient to cover the important issue of copyright matters as a sub-topic to other forms of cyber crimes; copyright deserves its own slot. Customs officials also travel to many countries to discuss customs operations and provide training on investigatory techniques. Again, our industries find these sessions very useful, and recommend that these sessions be expanded, both in terms of copyright-dedicated sessions per program as well as overall number of training programs offered. The U.S. Patent and Trademark Office (PTO) and the Commerce Department hosts educational and policy sessions on various high technology issues. The Copyright Office has its International Copyright Institute for foreign copyright officials. These separate programs should continue, and should be expanded. IIPA supports training programs which encourage adequate and effective copyright protection and enforcement throughout the world.

IIPA and its members will continue to support and participate in international IP law enforcement trainings, to the best of our abilities. What industry needs is an open line of ongoing communication about upcoming events at the earliest stages possible. We have received requests to participate in international training programs aboard with as little as 7 days’ notice. Clearly, this short notice can place a strain on our resources. Improved flow of information between the U.S. agencies and the private sector on these opportunities would be most welcome.

We also recommend that NIPLECC and its members follow-up on the effectiveness of the numerous trainings the U.S. government provides. Accountability and efforts to review the impact the training made on these officials should be built-in to this process.

• Improve international coordination of investigations

IIPA believes that the importance of intellectual property rights protection and enforcement should be elevated at all international levels. Especially in a global economy, it is imperative that the operational agencies like Customs and Justice coordinate closely with their foreign counterparts, especially on multinational cases. IIPA recommends that individual agencies like Justice and Customs continue to work hard to improve communication and coordination with their foreign colleagues on international copyright investigations and actions. We believe that those agencies charged with the actual investigation and prosecution should continue to have such authority, separate and apart from any NIPLECC coordination.

IIPA believes that NIPLECC could serve an organizational role in improving the infrastructure of interagency coordination regarding international investigations. For example, NIPLECC could encourage the creation of an "IPR-law enforcement team" within U.S. embassies and missions in countries with serious IP problems. We understand that such issue-specific enforcement teams already exist in some embassies for other issues, such as drug trafficking, anti-terrorism, alien smuggling, and the like. Such a IPR team could be chaired by a senior embassy official (like the Deputy Chief of Mission) and team members could include the Customs Attaché and the FBI Attaché. In addition, an IPR team could also include economic and commercial officers who often work to identify foreign officials for international visitor programs and to host various public IP functions and events in-country.

• Coordinate a consistent U.S. copyright agenda in the international realm

NIPLECC could provide a discussion forum to ensure that a unified, U.S. government message is being disseminated both to the public at large and to individual nations. NIPLECC, (or a subcommittee of NIPLECC members) could serve as a coordinating point for preparing and distributing public materials regarding the importance of effective domestic copyright enforcement. Such materials could be distributed to both U.S. government officials (here and abroad) as well as made available for the public at large. Such documents would serve as a supplement, not a substitute, for existing informational materials which already are available through the individual federal agencies.

IIPA believes that NIPLECC should encourage its members to take all actions to communicate with their respective foreign counterparts to make clear that the U.S. government places a high degree of importance on the effective legal protection and enforcement of copyright and other intellectual property rights abroad. For example, the U.S. Trade Representative has outlined several key international policy goals in the IPR context, for example: implementing the WTO TRIPS Agreement, controlling optical media production, supporting other governments to modernize their software management systems, and encouraging countries to sign, ratify and implement the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. We support this agenda, and urge that it be used consistently by all U.S. government agencies in their representations with other nations.

IIPA and its members believe that effective enforcement and educational messages are needed to foster respect for intellectual property rights, both here and abroad. Effective copyright protection and enforcement is imperative, and the stakes for the U.S. economy are high. The United States is the largest single country market for copyrighted products in the entire world. While our copyright industries do experience economic losses due to piracy within the U.S, the estimated piracy levels in the U.S. are actually among the lowest in the world. Below is a sampling of estimated losses and piracy levels in just a few countries around the world. The numbers cited below reflect conservative estimates, and do not include any estimates for losses due to online piracy, the biggest challenge we all now face. IIPA estimates that the annual estimated losses due to copyright piracy of U.S. creative products around the world amount to approximately US$20-22 billion.

Estimated Losses Due to Copyright Piracy

of U.S. Creative Products (in $US millions)

and Estimated Piracy Levels for 1999

• Insert intellectual property components into judicial reform projects in other institutions

NIPLECC could also serve as a coordination point for the U.S. government to commence consultations and discussions with the various regional and multi-lateral lending institutions to compile information on current judicial reform projects in–country and in-region. These judicial reform projects should have an intellectual property component to them. Inadequate judicial systems have served as a serious barrier to the copyright industries’ and local authorities’ abilities to pursue criminal and civil infringement actions abroad. Rule-of-law projects which include an IPR component would greatly support our goal to improve IPR enforcement around the world.

CONCLUSION

IIPA appreciates this opportunity to share our views on NIPLECC’s mission to coordinate intellectual property law enforcement issues among federal agencies and foreign entities. We look forward to continuing to work with each of the NIPLECC agencies and their representatives.

Sincerely,

Maria Strong

Vice President & Associate General Counsel

International Intellectual Property Alliance

29 June 2000

The Honorable Q. Todd Dickinson

Under Secretary of Commerce for

Intellectual Property and Director of the

United States Patent and Trademark Office

Box 4

Washington, D.C. 20231

Attention: Elizabeth Shaw via e-mail

Dear Under Secretary Dickinson:

Re: National Intellectual Property Law Enforcement Coordination Council

The International Trademark Association (INTA) is pleased to respond to the request for comment on issues related to policies and agenda for the National Intellectual Property Law Enforcement Coordination Council (the Council) that was published in the 5 June 2000 Federal Register (65 Fed. Reg. 35611).

INTA is a 122 year-old worldwide membership organization, representing over 3,800 corporations, package design firms, law firms and professional associations in 120 countries. INTA=s membership crosses all industry lines, including manufacturers and retailers, and is united in the goal of supporting the essential role trademarks play in promoting effective commerce, protecting the interest of consumers, and encouraging free and fair competition.

Over the years, INTA has worked closely with the various agencies of the United States government on issues regarding the enforcement of trademark rights. While the individual efforts of these agencies are indeed admirable, we believe that the formation of the Council in September 1999 is a major step to improve inter-agency coordination and thus make the efforts of the U.S. government even more effective.

The comments below follow the order of the questions in the request for comment.

The Council=s Agenda

What, if any, domestic policy-level law enforcement issues should the Council address?

1. Enforcement Effectiveness: The Council needs to identify and eliminate any bureaucratic complexities at the federal level. Probably the most pressing issue in this regard is the continuing efforts to designate one or more prosecutors with a knowledge of intellectual property and a willingness to prosecute such cases. To date, we continue to have difficulty on both the federal and state levels in convincing prosecutors to take counterfeiting cases and prosecute them with vigor. Better communication between federal and local law enforcement agencies should be a goal, as well as communication between federal agencies.

2. Harmonization of Enforcement Methods and Laws: The methods used in enforcement in the different jurisdictions should be harmonized. Such harmonization should be transparent to the public so that industry knows that there will be a standard plan with substantial investigative features, complete support without wavering to the problem, and uniform guidelines on accepting punishment. Punitive relief must be categorized, i.e.,by the amount of loss or the proclivities of the offenders. Second offenders, etc. should receive mandated prison time. Adjudged penalties should be widely disseminated in publications (newspapers, etc.) as a normal course including knowledge that: (1) RICO is available against counterfeiters; (2) it is expected that counterfeiters will go to jail; (3) that premises will be closed; (4) there will be a taking (forfeiture) of expensive counterfeiting equipment such a knitting machines without return; and (5) that counterfeiters and their colleagues will be disqualified from operating in particular industries for a set period of time. This last penalty should be particularly true with respect to those counterfeiters which affect the health and safety of the public.

3. Actions Should Not be Only Exemplary: It should be recognized and publicly made known that federal enforcement is not only by a few examples. There must be a continuing weight of successful (and even if unsuccessful) known-to-be-enforced actions against counterfeiting. It is by now well known that doing counterfeiting action by example in a few cases is not going to stop counterfeiting. The effectiveness of any program is a recognition that counterfeiting is one of the most aggressively illegal activities. It is not larceny or insider trading. It is aggressively taking a trademarked product away from the trademark owner for financial gain.

4. Continuing Public Statements as a Follow-Up: It is the cavalier attitude of counterfeiters that must be changed. The continuing public recognition and education as to their illegal work with simultaneous enforcement in an effective public way is necessary. This is true not only in the English speaking periodicals in the U.S., but where foreign entities are involved in underground activities in the United States, articles and notices should occur in native language daily journals as well. This is one way of attempting to eliminate the price gap between the industry branded sale of the product and the counterfeiter=s sale price so as to make it less attractive to counterfeit and eliminate opportunity and profit for the counterfeiter. Continuing public pronouncement also will help in eliminating the general feeling of the public that counterfeiting is not all that bad and that it just provides another avenue of cheaper products for consumers who would not generally be able to afford the branded merchandise or if they could afford it, it is not available in their neighborhood. This is a domestic and international problem which must be overcome. It is only overcome with diligence and constant public reminders of the deleterious effects of counterfeiting.

5. RICO Enforcement: There is no reason not to consider the use presently given by statute of RICO against counterfeiters as Apredicate@ offenders. However, the punitive remedies must be severe and acted upon by the federal courts. There must be acceptance in the way of guidelines for federal courts to work with appropriate penalties under RICO. It is a recognized fact that counterfeiting is a very profitable Aprofession@ with the penalties low enough that it is a clear and attractive alternative to drug trafficking. That is why deterrents applied to counterfeiting should be substantially the same as those set forth for drug trafficking.

6. The Internet and Counterfeiting: In short order e-commerce will be a major component of brand identification and selling, and with this, counterfeiting already is becoming evident. Counterfeiting over the Internet should be clearly a defined federal offense and the penalties should have the same guidelines for substantial punitive relief available in normal counterfeiting situations. Until statutes are implemented, there is sufficient judicial precedent to conclude that all available remedies for counterfeiting exist. Making a counterfeit product available over the Internet should be subject to the severest of penalties as the scope of availability nationwide/internationally is immediate. The effect on legitimate industry is immediate. Guidelines for enforcement over the Internet should include full availability by subpoena or otherwise of all Internet related data to allow for investigation and immediate shut down of Internet sites by federal action. The action taken should be available as both a criminal and civil offense. E-commerce counterfeiting should be considered as or more severe than SEC violations or any other major attack on the systems of commerce available. This should be publicized with recognizable enforcement personnel known to the public. There should be training and at least one conference a year on counterfeiting on the Internet so that industry representatives get to know the available enforcement officials and previous work done. This should also be made part of the work of defined bureau personnel in major cities so that Internet enforcement can be immediate in clear situations.

7. Public Reporting of Counterfeiting Activities: There should be an annual presentation of all criminal and civil actions brought against counterfeiters made available to the public which identifies the counterfeiters and sets forth the penalties that were imposed upon them. This should not just be buried in a report to Congress but made available to the public as an Internet advisory or some other display on a search engine so that full awareness becomes available.

8. Information Gathering Network: On an ongoing and continuing basis federal authorities should have a complete network of investigative counterfeiting activity including all Customs investigations and have that network available for coordination for future actions. This could be the responsibility of the personnel in the major cities through permanent linking so that patterns become available to manage collected information. This appears to be an absolute necessity for effectiveness. Industry should have complete access to this information where the companies involved have had their trademarks counterfeited. There should be a complete and aggressive sharing of such information. This would allow for an effective criminal/civil action program. Of course, such a network should have a substantial amount of discretion to prevent general access to the public so that proprietary business information is not released. This should be considered another form of public/private sector cooperation.

What, if any, international policy-level law enforcement issues should the Council address?

1. Coordination Mechanism: The U.S. should push to establish a coordination mechanism, similar to the Council, on an international level to improve enforcement. Although there are separate intergovernmental bodies such as the World Customs Organization that have been extremely useful in identifying issues for cooperation, this has been sporadic at best.

2. TRIPS Compliance: While the TRIPS Council=s review of the seventy-odd countries that are to have their laws in compliance with TRIPS by 1 January 2000 has begun, there is an absolute need to ensure that the actual implementation of those laws occurs and will continue past the review period. INTA also recommends that the United States government continues to explore avenues for moving the enforcement standards bar higher through our proposed ATRIPS Plus@ standards that could be included in national legislation.

3. WIPO Model Provisions: In trying to comply with TRIPS, many countries are relying on the outdated Model Provisions for National Laws on Measures Against Counterfeiting and Piracy that the World Intellectual Property Organization prepared in 1988. Unfortunately, the Model does not comply with TRIPS and INTA has recommended amendments to the Model. The Council should consider pressing WIPO to convene a meeting to update the Model.

4. Customs Model Law: INTA has proposed amendments to strengthen the World Customs Organization=s Model For National Legislation to give Customs additional powers to implement TRIPS. These proposed amendments where circulated to members of the WCO, but no formal action has been taken. The Council should consider working with the WCO to get the Model Legislation updated so that it can be a valuable tool for countries to use in

complying with TRIPS.

Council-Industry Cooperation

In what ways can the Council assist the intellectual property industries in creating domestic and international environments conducive to enforcement of intellectual property rights?

In addition to the suggestions given above, the Council should consider establishing a mechanism for open hearings where industry would have a forum to air their issues. Similar hearings could be conducted in non-U.S. jurisdictions, asking for participation at all levels, including police, customs, legislators, judicial officials and prosecutors.

Where the issue of counterfeiting falls on the borderline, there should be an available mechanism of a committee set up which includes industry executives and government officials to determine the appropriateness of such action. This can be done by a convened committee on a two week or one month basis or Aas available to meet the need.@ It would be expected that such a committee would probably only work in the more unusual situations.

Obviously, the U.S. should continue to press governments that are either non-compliant or semi-compliant with TRIPS and other international enforcement standards.

In what ways can the Council enhance the enforcement of intellectual property rights while facilitating legitimate trade?

The Council should consider establishing an integrated global basis of tracking systems on counterfeiting. Such information would be extremely valuable to breakup global counterfeiting rings.

In addition, coordinated training programs for customs and other enforcement officials should be instituted. Unfortunately, tremendous effort and resources are expended by the U.S. and other governments to provide assistance to non-compliant countries to get their enforcement activities up to international standards. A more coordinated effort would reduce redundancy of training efforts and perhaps be more effective. Such training also should be ongoing and not just when a particular country becomes internationally infamous due to lack of enforcement of intellectual property rights.

Are there gaps or impediments in existing law enforcement regimes (civil, administrative or criminal) that, if remedied, would enable rights-holders to better protect their intellectual property rights?

A number of the gaps have been noted above, such as:

1. Many countries need enabling laws to grant various agencies the right to seize offending product.
2. Many countries do not yet provide for ex parte proceedings, thus giving notice to the other side prior to seizure.
3. Many countries need to allow for the destruction of goods and to impose substantial fines to discourage repeat offenders.

In what ways can the intellectual property industries contribute to or assist the Council in carrying out its mission of coordinating domestic and international intellectual property law enforcement-related activities?

INTA would welcome the opportunity to provide industry representatives to whatever meetings, hearings and other mechanisms the Council decides to establish to fulfil its mission. Providing facts on real life battles against counterfeiters will ensure that the Council will not become to far removed from those who are on the front line. Also, industry can provide facts about counterfeiting rings that cross international boundaries and the lack of enforcement by certain countries. Finally, industry will continue to be a partner with government officials in participating in training and education programs, as well as suggesting alternatives for addressing enforcement problems and issues.

In what ways can the Council assist U.S. government interaction with its foreign counterparts on intellectual property law enforcement-related activities?

Many recommendations are cited above, including: establishing better coordination and communication mechanisms; tracking efforts by various intergovernmental organizations like APEC and WCO; and encouraging other countries to begin such coordination efforts on a national level, with a link to international coordination efforts.

If the Council has additional questions, please contact me either by telephone (212-768-9887 x120) or by e-mail (bmacpherson@inta.org).

Respectfully submitted via e-mail by

Bruce J. MacPherson

Director - External Relations

International Trademark Association

July 7, 2000

Q. Todd Dickinson

Under Secretary of Commerce for Intellectual Property

and Director of the U.S. Patent and Trademark Office

Box 4

U.S. Patent and Trademark Office

Washington, D.C. 20231

Dear Under Secretary Dickinson:

The Software & Information Industry Association ("SIIA") is the principal trade association of the software and information industry and represents over 1,000 high-tech companies that develop and market software and electronic content for business, education, consumers, the Internet, and entertainment. SIIA members represent a wide range of diverse business interests. While our members' interests may be wide-ranging and diverse there are at least two things most of them have in common: (1) they are owners of intellectual property, and (2) they have had their intellectual property infringed or stolen by someone at some time. It should therefore come as no surprise, that SIIA and its members have an interest -- albeit some more than others -- in ensuring that their intellectual property is protected against theft and that they have at their disposal tools to enforce their intellectual property rights that are effective, transparent and not unduly burdensome. It follows that, SIIA and our members are extremely interested in the policy issues and agenda items relating to the enforcement of intellectual property rights that will be addressed by the National Intellectual Property Law Enforcement Coordination Council ("the Council").

In response to the "Request for Comments on Issues Related to Policies and Agenda for the National Intellectual Property Law Enforcement Coordination Council" published in the Federal Register on June 5, 2000 by the U.S. Department of Justice ("DOJ") and the U.S. Patent and Trademark Office ("PTO"), SIIA hereby files the following comments on behalf of its members. Because many of the questions proffered by the Council tend to call for the same basic responses, to avoid redundancy we have outlined our general concerns and suggestions in lieu of replying to each of the questions individually.

Through SIIA's anti-piracy efforts, we have worked a great deal with the Office of the U.S. Trade Representative ("USTR"), DOJ, PTO, Customs, and the U.S. Copyright Office. Over the years, these agencies have represented the interests and concerns of U.S. intellectual property rights owners -- and in particular those of SIIA and its members -- with extraordinary skill and effectiveness. The institutional intellectual property knowledge and expertise of these agencies -- and particularly those of USTR, PTO and the Copyright Office -- serves U.S. industry well. In light of this, SIIA hopes that the these three agencies will have significant say in the agenda items and policy matters considered by the Council. We also hope that each agency will bring its particular expertise to the Council and will work together within the Council's framework, while respecting each agency's distinct mission and statutory authority.

Despite the outstanding efforts by the aforementioned agencies and the other government agencies named above, their efforts have gone largely unrewarded, as global software piracy rates remain quite high and the number of domestic prosecutions remains extremely low. To effectively fight piracy in the United States and abroad it is evident that additional resources and coordination between the agencies is necessary. It is our hope that the Council can accomplish these objectives.

The Importance of Intellectual Property Enforcement. We cannot stress enough how important it is to SIIA and its members that all countries -- and most importantly, the United States -- have in place adequate and effective enforcement mechanisms for dealing with the theft of intellectual property. As you well know, without workable means for enforcing one's intellectual property rights, the rights themselves have essentially little or no value. It is, therefore, imperative that the Council not erect any new barriers to enforcement -- whether bureaucratic or substantive -- and that, where appropriate, it take appropriate steps to remove existing barriers to enforcement and improve enforcement abroad. It is SIIA's view that this ought to be the Council's primary directive and before the Council considers any issue or takes any action, the Council should first determine whether such consideration or activity is consistent with this directive.

In the international context, the standards and effectiveness of the U.S. intellectual property enforcement regime take on additional importance. The Council should understand that as the world's leading producers of intellectual property products and services, the intellectual property laws and enforcement practices of the United States are closely monitored by our trading partners. To the extent there exist barriers to enforcement in the United States that become known to and exploited by our trading partners, these barriers adversely affect our ability to achieve higher standards of intellectual property protection abroad. It is therefore, imperative that the U.S. intellectual property enforcement regime be irreproachable not only to ensure effective protection of intellectual property in the United States, but also to ensure that U.S. industry is able to achieve similar protections abroad.

Coordination & Transparency. Perhaps the most valuable benefit the Council could provide is to improve the coordination and interaction between the various U.S. Government agencies which have responsibility for domestic and international enforcement activities. This applies not only to prosecution of domestic piracy, but also, and more significantly, to activities aimed at improving intellectual property enforcement regimes abroad. It has been our experience that lack of communication between the various agencies responsible for intellectual enforcement and training efforts has been an unfortunate obstacle preventing the U.S. enforcement and training programs from reaching its true potential. We, therefore, believe that improved coordination and communication between the various U.S. Government agencies should be one of the goals -- if not the primary goal -- of the Council. Given the makeup of the Council, it would appear that the Council is extremely well-equipped to achieve this goal.

In addition to improved coordination and communication among the U.S. Government agencies that comprise the Council, improved transparency and communication with industry should also be a goal of the Council. Often times piracy cases are referred to agency officials and the officials do not keep the referring entity apprised of the status or disposition of the case. Having some informal mechanism in place that enables agency officials to provide periodic updates regarding the status of cases referred to them by industry would be extremely beneficial (provided it was conducted in a manner that did not unduly impede enforcement activities). By getting periodic updates on the status of cases, copyright owners will be able to ensure that their cases are moving forward. In addition, if agency officials were to the inform industry representatives who referred piracy cases to them as to why a particular case was declined, it might aide industry in referring better cases in the future.

Remove Barriers to Referring Piracy Cases. As noted above, the Council could also aide intellectual property owners by removing some of the roadblocks to domestic anti-piracy enforcement activities. For example, in the software area, before referring a case to an FBI agent, the reporting entity must download sufficient illegal material to reach the monetary threshold established by DOJ. This threshold, which appears to be beyond that required by any statute, places an undue burden on referral entities. While it is may be readily apparent that a particular pirate website contains an amount of pirate material that exceeds the statutorily-required monetary threshold, it is often difficult if not impossible to meet the DOJ's monetary threshold requirements without being detected and thrown off the site. As a result, known pirates are permitted to continue their infringing activities without the threat of criminal sanctions.

While we do not wish to single out any particular agency we do think it is necessary to provide additional examples of enforcement barriers in order for the Council to understand the various types of issues that SIIA and our members are concerned about. The Internet Fraud Complaint Center ("IFCC") website is one such example. The IFCC website was recently launched by DOJ to enable the public to easily report instances of fraud and piracy to the Government. Unfortunately, there are several problems with the complaint form contained on the IFCC website make reporting less than an easy task and will likely preclude many cases from being reported. These problems, include: (1) reporting an infringement case requires the completion of a 14 page complaint form that takes an extremely long time to download and complete because of the nature of the fields and the same detailed graphics that appear on every page; (2) a complainant must supply his or her social security number without any assurance that it will be held in confidence; (3) the form requires the complainant to provide information that he or she has no reason to know or have legal access to get (such as the pirate's social security number); and (4) the form cannot be submitted unless and until each field is completed, which, in combination with the aforementioned problems, reduces the effectiveness of the form exponentially. As a result, the complainant is more likely to be punished by submitting this form than the pirate. Our fear is that those who might otherwise report instances of piracy to the Government will not due so because of the problems noted above. We are also concerned that the website may deter people from reporting instances of piracy to industry representatives through industry's website and other contacts.

Another barrier to criminal enforcement has been the exhaustion of civil remedies. Often times a case may not be pursued simply because the copyright owner has the ability to sue the pirate for civil remedies and the Government agencies requires the copyright owner to exhaust this avenue before proceeding with criminal investigation. This approach is hopelessly misguided. The availability of civil remedies are often inadequate because, for example, the defendant is judgment proof or is not profiting from the infringing acts. Wide spread use of the Internet to engage in piracy has heightened the industries' need for effective criminal enforcement. Thus, the availability of civil remedies should have no bearing on whether someone engaged in acts of criminal copyright infringement is pursued by the Government. SIIA would be pleased to work with the Council on removing barriers to intellectual property law enforcement.

Improved Deterrence and Educational Activities. One of the main reasons for industry to use the criminal copyright enforcement system is for the purpose of deterrence. Without sufficient publicity of successful prosecutions, there is little if any deterrent effect because other individuals engaged in illicit activities do not know that their brethren are being punished for their crimes. Therefore, when the Government successfully prosecutes a pirate it is in the best interest of the Government and the industry to highly publicize the case. Industry, and SIIA in particular, would be pleased to coordinate these activities with the Council where appropriate.

In a similar vein, education and training activities also serve as an effective deterrent against piracy. Only by education can the public come to fully understand that value of intellectual property and the damage that is incurred from piracy. The public needs to understand that intangible assets protected by copyright and other intellectual property laws are indispensable to the culture and the economy of the United States and other countries. They must also recognize that acts of piracy discourage intellectual property owners from creating new content and making it available for public consumption. The economic impact of piracy stems well beyond those industries that rely on intellectual property protection -- it harms economies worldwide in the form of substantial numbers of jobs lost, greatly diminished tax revenues, and inhibiting electronic commerce. Thus, ultimately it is the public that loses out from piracy.

Training of legislators, judges, and other government officials tasked with enforcement responsibilities is also an extremely important aspect of and enforcement regime. Unfortunately, while many U.S. Government agencies conduct extensive training programs and spend significant amounts of money and resources training individuals here and abroad, from our perspective it appears that these initiatives lack the requisite focus and coordination that would make them significantly more effective.

For example, many intellectual property enforcement training programs conducted in other countries often lack a true intellectual property component or the person performing the training lacks the expertise required of this often complex subject matter. We believe the training and education programs could be improved by identifying "target countries" which would be the beneficiaries of training and education programs. It is also important that the training programs be taught by those who understand international intellectual property enforcement issues. This is especially important, given the limited amount of qualified individuals to perform the training. By focusing the limited training resources on these specific target countries and developing an organized training plan administered and taught by experts in the field, we are more likely to see beneficial intellectual property enforcement regimes emerge from these target countries than the present unfocused approach that covers too many countries.

We believe that there should also be a greater degree of accountability for foreign training programs. In this regard, it would be helpful if the names of those foreign nationals who attend the training programs are shared with industry representatives. This should help ensure that the appropriate personnel are being trained and that the industry is able to identify those government officials who should have sufficient understanding of intellectual property issues when confronted with a piracy problem in a particular country.

To accomplish these goals it is important for the various government agencies involved in training and education to coordinate their activities (as noted above). Because of the limited monetary and personnel resources the only way the training programs can be improved is through increased coordination and communication among the agencies.

Once again, I would like to thank you for the opportunity to provide our comments to the Council. If you have questions regarding our comments or would like any additional information please feel free to contact me.

Sincerely,

Ken Wasch

President

this is the logical conclusion of your efforts; are you happy?

FOR IMMEDIATE RELEASE

Contact Information: J D Sallen, 7 Fiske Terrace, Brookline, Ma 02446

Telephone: 617 731 6939 Email: jdsallen@ix.netcom.com

Bible Equals "Bad Faith" on Internet? David Versus Goliath in Cyberspace

BROOKLINE, MASSACHUSETTS - June 20, 2000: "It’s piracy and harassment plain and simple" says CORINTHIANS.COM domain owner, J D Sallen, of Brookline, Mass. In an attempt to seize the Internet address, "CORINTHIANS.COM," whose biblical name they share, the Brazilian soccer team Corinthians, an international powerhouse, is claiming that the web address’s long-time owner is guilty of "bad faith" for placing, in the team’s words, "just" scripture on his web site. The team is demanding the domain be handed over to the them.

In a complaint filed May 22, 2000 with WIPO, The World Intellectual Property Organization, Gottleib, Rackman & Reisman, the New York law firm representing the soccer club, claims that "the placement of just [sic] biblical quotation on the web site serves no useful purpose," harms the soccer club, and therefore amounts to "bad faith."

"Even leaving aside the issues of freedom of religious expression, and separation of church and state, this is corporate hubris and greed at its ugliest" says Sallen. "They say I’m harming them with ‘unfair business practices’! That’s a hot one; how can scripture "harm" anyone? Have they no shame?"

Mr. Sallen was not able to afford representation for his defense and has had to spend enormous amounts of time and effort responding to the complainant’s lawyers’ book-length submission to WIPO. "People have got the idea that if you aren’t a huge corporate entity you have no place on the Internet," Sallen says "but that’s wrong. Corporations created that image because they saw the power of the Internet to level the playing field a bit. Now, if you’re an individual with a domain name, they label you a ‘cybersquatter.’ Business is exploiting that sentiment to run roughshod over the little guy. The Internet was created to promote personal expression and communication, not merely e-commerce or making money for soccer teams. It’s got completely out of hand." Sallen goes on to say, "These lawyers have sunk so low as to compare my web site, with its simple line of scripture, to sites exhibiting pornography. It’s sick, that quote has meaning for me."

Because the case is now in the hands of WIPO, there’s not much Mr. Sallen can do but await news of the fate of his web site. A decision is due in a few weeks. "I’m confident my response to WIPO clearly demonstrated my rights to own this domain, but who knows?" says Sallen." Indeed, there have been some inexplicable decisions in domain resolution cases. The outcome may all depend on who is chosen to arbitrate. Sallen tries to remain philosophical, "There must be thousands of businesses worldwide using the name "Corinthians," but first and foremost it is associated with The Bible. They know that. I’m sure it’s why they chose the name. It’s out of my hands anyway" he continues, "all I can do now is pray."

For more information contact JD Sallen @ 6177316939, or jdsallen@ix.netcom.com

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APPENDIX - TAB D

Federal Register Notice #2 - Public Meeting Transcript

IN A SEPARATE FILE ALSO AVAILABLE ON THE USPTO WEBSITE

  APPENDIX - TAB E

Interagency Database of IP Training