[Congressional Record Volume 154, Number 74 (Tuesday, May 6, 2008)]
[House]
[Pages H3067-H3078]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PRIORITIZING RESOURCES AND ORGANIZATION FOR INTELLECTUAL PROPERTY ACT
OF 2008
Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 4279) to enhance remedies for violations of intellectual
property laws, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4279
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the
``Prioritizing Resources and Organization for Intellectual
Property Act of 2008''.
(b) Table of Contents.--The table of contents is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Reference.
Sec. 3. Definition.
TITLE I--ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAWS
Sec. 101. Registration of claim.
Sec. 102. Registration and infringement actions.
Sec. 103. Civil remedies for infringement.
Sec. 104. Treble damages in counterfeiting cases.
Sec. 105. Statutory damages in counterfeiting cases.
Sec. 106. Exportation of goods bearing infringing marks.
Sec. 107. Importation and exportation.
TITLE II--ENHANCEMENTS TO CRIMINAL INTELLECTUAL PROPERTY LAWS
Sec. 201. Criminal infringement of a copyright.
Sec. 202. Harmonization of forfeiture procedures for intellectual
property offenses.
Sec. 203. Directive to United States Sentencing Commission.
Sec. 204. Trafficking in counterfeit goods or services.
TITLE III--COORDINATION AND STRATEGIC PLANNING OF FEDERAL EFFORT
AGAINST COUNTERFEITING AND PIRACY
Subtitle A--Office of the United States Intellectual Property
Enforcement Representative
Sec. 301. Office of the United States Intellectual Property Enforcement
Representative.
Sec. 302. Definition.
Subtitle B--Joint Strategic Plan
Sec. 321. Joint Strategic Plan.
Sec. 322. Reporting.
Sec. 323. Savings and repeals.
Sec. 324. Authorization of appropriations.
TITLE IV--INTERNATIONAL ENFORCEMENT AND COORDINATION
Sec. 401. Intellectual property attaches.
Sec. 402. Duties and responsibilities of intellectual property
attaches.
Sec. 403. Training and designation of assignment.
Sec. 404. Coordination.
Sec. 405. Authorization of appropriations.
TITLE V--DEPARTMENT OF JUSTICE PROGRAMS
Subtitle A--Coordination
Sec. 501. Intellectual Property Enforcement Officer.
Subtitle B--Law Enforcement Resources
Sec. 511. Local law enforcement grants.
Sec. 512. CHIP units, training, and additional resources.
Sec. 513. Transparency of prosecutorial decisionmaking.
Sec. 514. Authorization of appropriations.
Subtitle C--International Activities
Sec. 521. International intellectual property law enforcement
coordinators.
Sec. 522. International training activities of the computer crime and
intellectual property section.
Subtitle D--Coordination, Implementation, and Reporting
Sec. 531. Coordination.
Sec. 532. Annual reports.
SEC. 2. REFERENCE.
Any reference in this Act to the ``Trademark Act of 1946''
refers to the Act entitled ``An Act to provide for the
registration of trademarks used in commerce, to carry out the
provisions of certain international conventions, and for
other purposes'', approved July 5, 1946 (15 U.S.C. 1051 et
seq.).
SEC. 3. DEFINITION.
In this Act, the term ``United States person'' means--
(1) any United States resident or national,
(2) any domestic concern (including any permanent domestic
establishment of any foreign concern), and
(3) any foreign subsidiary or affiliate (including any
permanent foreign establishment) of any domestic concern that
is controlled in fact by such domestic concern,
except that such term does not include an individual who
resides outside the United States and is employed by an
individual or entity other than an individual or entity
described in paragraph (1), (2), or (3).
TITLE I--ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAWS
SEC. 101. REGISTRATION OF CLAIM.
Section 410 of title 17, United States Code, is amended--
(1) by redesignating subsections (c) and (d) as subsections
(d) and (e), respectively; and
(2) by inserting after subsection (b) the following:
``(c)(1) A certificate of registration satisfies the
requirements of section 411 and section 412 regardless of any
inaccurate information contained in the certificate, unless--
``(A) the inaccurate information was included on the
application for copyright registration with knowledge that it
was inaccurate; and
``(B) the inaccuracy of the information, if known, would
have caused the Register of Copyrights to refuse
registration.
``(2) In any case in which inaccuracies described under
paragraph (1) are alleged, the court shall request the
Register of Copyrights to advise the court whether the
inaccuracy of the information, if known, would have caused
the Register of Copyrights to refuse registration. The
Register shall respond to the court's request within 45 days
after the request is made.
``(3) Nothing in this subsection shall affect any rights,
obligations, or requirements of a person related to
information contained in a registration certificate except
for the institution of and remedies in infringement actions
under sections 411 and 412.''.
SEC. 102. REGISTRATION AND INFRINGEMENT ACTIONS.
(a) Registration in Civil Infringement Actions.--Section
411 of title 17, United States Code, is amended--
(1) in the section heading, by inserting ``civil'' after
``and'' ; and
(2) in subsection (a), by striking ``no action'' and
inserting ``no civil action''.
(b) Technical and Conforming Amendment.--Section 411(b) of
title 17, United States Code, is amended by striking ``506
and sections 509 and'' and inserting ``505 and section''.
SEC. 103. CIVIL REMEDIES FOR INFRINGEMENT.
Section 503(a) of title 17, United States Code, is
amended--
(1) by striking ``and of all plates'' and inserting ``of
all plates''; and
(2) by striking the period at the end and inserting the
following: ``, and records documenting the manufacture, sale,
or receipt of things involved in such violation. The court
shall enter an appropriate protective order with respect to
discovery by the applicant of any records that have been
seized. The protective order shall provide for appropriate
procedures to assure that confidential information contained
in such records is not improperly disclosed to the
applicant.''.
SEC. 104. TREBLE DAMAGES IN COUNTERFEITING CASES.
Section 35(b) of the Trademark Act of 1946 (15 U.S.C.
1117(b)) is amended to read as follows:
``(b) In assessing damages under subsection (a) for any
violation of section 32(1)(a) of this Act or section 220506
of title 36, United States Code, in a case involving use of a
counterfeit mark or designation (as defined in section 34(d)
of this Act), the court shall, unless the court finds
extenuating circumstances, enter judgment for three times
such profits or damages, whichever amount is greater,
together with a reasonable attorney's fee, if the violation
consists of--
``(1) intentionally using a mark or designation, knowing
such mark or designation is a counterfeit mark (as defined in
section 34(d) of this Act), in connection with the sale,
offering for sale, or distribution of goods or services;
``(2) intentionally inducing another to engage in a
violation specified in paragraph (1); or
``(3) providing goods or services necessary to the
commission of a violation specified in paragraph (1), with
the intent that the recipient of the goods or services would
put the goods or services to use in committing the violation.
In such a case, the court may award prejudgment interest on
such amount at an annual interest rate established under
section 6621(a)(2) of the Internal Revenue Code of 1986,
beginning on the date of the service of the claimant's
pleadings setting forth the claim for such entry of judgment
and ending on the date such entry is made, or for such
shorter time as the court considers appropriate.''.
SEC. 105. STATUTORY DAMAGES IN COUNTERFEITING CASES.
Section 35(c) of the Trademark Act of 1946 (15 U.S.C. 1117)
is amended--
(1) in paragraph (1)--
(A) by striking ``$500'' and inserting ``$1,000''; and
(B) by striking ``$100,000'' and inserting ``$200,000'';
and
(2) in paragraph (2), by striking ``$1,000,000'' and
inserting ``$2,000,000''.
SEC. 106. EXPORTATION OF GOODS BEARING INFRINGING MARKS.
Title VII of the Trademark Act of 1946 (15 U.S.C. 1124) is
amended--
(1) in the title heading, by inserting after
``IMPORTATION'' the following: ``OR EXPORTATION''; and
[[Page H3068]]
(2) in section 42--
(A) by striking the word ``imported''; and
(B) by inserting after ``customhouse of the United States''
the following: ``, nor shall any such article be exported
from the United States''.
SEC. 107. IMPORTATION AND EXPORTATION.
(a) In General.--The heading for chapter 6 of title 17,
United States Code, is amended to read as follows:
``CHAPTER 6--MANUFACTURING REQUIREMENTS, IMPORTATION, AND
EXPORTATION''.
(b) Amendment on Exportation.--Section 602(a) of title 17,
United States Code, is amended--
(1) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively, and moving such
subparagraphs 2 ems to the right;
(2) by striking ``(a)'' and inserting ``(a) Infringing
Importation and Exportation.--
``(1) Importation.--'';
(3) by striking ``This subsection does not apply to--'' and
inserting the following:
``(2) Importation or exportation of infringing items.--
Importation into the United States or exportation from the
United States, without the authority of the owner of
copyright under this title, of copies or phonorecords, the
making of which either constituted an infringement of
copyright or would have constituted an infringement of
copyright if this title had been applicable, is an
infringement of the exclusive right to distribute copies or
phonorecords under section 106, actionable under sections 501
and 506.
``(3) Exceptions.--This subsection does not apply to--'';
(4) in paragraph (3)(A) (as redesignated by this
subsection) by inserting ``or exportation'' after
``importation''; and
(5) in paragraph (3)(B) (as redesignated by this
subsection)--
(A) by striking ``importation, for the private use of the
importer'' and inserting ``importation or exportation, for
the private use of the importer or exporter''; and
(B) by inserting ``or departing from the United States''
after ``United States''.
(c) Conforming Amendments.--(1) Section 602 of title 17,
United States Code, is further amended--
(A) in the section heading, by inserting ``or exportation''
after ``importation''; and
(B) in subsection (b)--
(i) by striking ``(b) In a case'' and inserting ``(b)
Import Prohibition.--In a case'';
(ii) by striking ``the United States Customs Service'' and
inserting ``U.S. Customs and Border Protection''; and
(iii) by striking ``the Customs Service'' and inserting
``U.S. Customs and Border Protection''.
(2) Section 601(b)(2) of title 17, United States Code, is
amended by striking ``the United States Customs Service'' and
inserting ``U.S. Customs and Border Protection''.
(3) The item relating to chapter 6 in the table of chapters
for title 17, United States Code, is amended to read as
follows:
``6. Manufacturing Requirements, Importation, and Exportation ........
601''.
TITLE II--ENHANCEMENTS TO CRIMINAL INTELLECTUAL PROPERTY LAWS
SEC. 201. CRIMINAL INFRINGEMENT OF A COPYRIGHT.
Section 2319 of title 18, United States Code, is amended--
(1) in subsection (b)(2)--
(A) by inserting ``is a felony and'' after ``offense'' the
first place such term appears; and
(B) by striking ``paragraph (1)'' and inserting
``subsection (a)'';
(2) in subsection (c)(2)--
(A) by inserting ``is a felony and'' after ``offense'' the
first place such term appears; and
(B) by striking ``paragraph (1)'' and inserting
``subsection (a)'';
(3) in subsection (d)(3)--
(A) by inserting ``is a felony and'' after ``offense'' the
first place such term appears; and
(B) by inserting ``under subsection (a)'' before the
semicolon; and
(4) in subsection (d)(4), by inserting ``is a felony and''
after ``offense'' the first place such term appears.
SEC. 202. HARMONIZATION OF FORFEITURE PROCEDURES FOR
INTELLECTUAL PROPERTY OFFENSES.
(a) Trafficking in Counterfeit Labels.--Section 2318 of
title 18, United States Code, is amended--
(1) by amending subsection (d) to read as follows:
``(d) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any counterfeit documentation or packaging, and any
counterfeit label or illicit label and any article to which a
counterfeit label or illicit label has been affixed, which a
counterfeit label or illicit label encloses or accompanies,
or which was intended to have had such label affixed,
enclosing, or accompanying.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of a
violation of subsection (a).
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of
subsection (a) that is owned or predominantly controlled by
the violator or by a person conspiring with or aiding and
abetting the violator in committing the violation, except
that property is subject to forfeiture under this clause only
if the Government establishes that there was a substantial
connection between the property and the violation of
subsection (a).
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under subparagraph (A). At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
counterfeit labels or illicit labels and any article to which
a counterfeit label or illicit label has been affixed, which
a counterfeit label or illicit label encloses or accompanies,
or which was intended to have had such label affixed,
enclosing, or accompanying, be destroyed or otherwise
disposed of according to law.
``(C) In this paragraph, the term `aiding and abetting'
means knowingly providing aid to the violator with the intent
to facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
this section, shall order, in addition to any other sentence
imposed, that the person forfeit to the United States the
following property:
``(i) Any counterfeit documentation or packaging, and any
counterfeit label or illicit label, that was used, intended
for use, or possessed with intent to use in the commission of
an offense under subsection (a), and any article to which
such a counterfeit label or illicit label has been affixed,
which such a counterfeit label or illicit label encloses or
accompanies, or which was intended to have had such label
affixed, enclosing, or accompanying.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of an
offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970
(21 U.S.C. 853), other than subsection (d) of that section.
At the conclusion of the forfeiture proceedings, the court
shall order that any counterfeit label or illicit label and
any article to which a counterfeit label or illicit label has
been affixed, which a counterfeit label or illicit label
encloses or accompanies, or which was intended to have had
such label affixed, enclosing, or accompanying, be destroyed
or otherwise disposed of according to law.
``(3) Restitution.--When a person is convicted of an
offense under this section, the court, pursuant to sections
3556, 3663A, and 3664, shall order the person to pay
restitution to the owner of the marks or copyrighted works
involved in the offense and any other victim of the offense
as an offense against property referred to in section
3663A(c)(1)(A)(ii).'';
(2) by striking subsection (e); and
(3) by redesignating subsection (f) as subsection (e).
(b) Criminal Infringement of a Copyright.--
(1) In general.--Section 2319 of title 18, United States
Code, is amended by adding at the end the following:
``(g) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any copies or phonorecords manufactured, reproduced,
distributed, sold, or otherwise used, intended for use, or
possessed with intent to use in violation of section 506(a)
of title 17, any plates, molds, matrices, masters, tapes,
film negatives, or other articles by means of which such
copies or phonorecords may be made, and any electronic,
mechanical, or other devices for manufacturing, reproducing,
or assembling such copies or phonorecords.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of a
violation of section 506(a) of title 17.
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of section
506(a) of title 17 that is owned or predominantly controlled
by the violator or by a person conspiring with or aiding and
abetting the violator in committing the violation, except
that property is subject to forfeiture under this clause only
if the Government establishes that there was a substantial
connection between the property and the violation of section
506(a) of title 17.
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under this section. At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
infringing copies or phonorecords, and any plates, molds,
matrices, masters, tapes, and film negatives by means of
which such unauthorized copies or phonorecords may be made,
be destroyed or otherwise disposed of according to law.
``(C) In this paragraph, the term `aiding and abetting'
means knowingly providing aid to the violator with the intent
to facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
subsection
[[Page H3069]]
(a), shall order, in addition to any other sentence imposed,
that the person forfeit to the United States the following
property:
``(i) Any copies or phonorecords manufactured, reproduced,
distributed, sold, or otherwise used, intended for use, or
possessed with intent to use in the commission of an offense
under subsection (a), any plates, molds, matrices, masters,
tapes, film negatives, or other articles by means of which
the copies or phonorecords may be reproduced, and any
electronic, mechanical, or other devices for manufacturing,
reproducing, or assembling such copies or phonorecords.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of an
offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970
(21 U.S.C. 853), other than subsection (d) of that section.
At the conclusion of the forfeiture proceedings, the court
shall order that any forfeited infringing copies or
phonorecords, and any plates, molds, matrices, masters,
tapes, and film negatives by means of which such infringing
copies or phonorecords may be made, be destroyed or otherwise
disposed of according to law.
``(3) Restitution.--When a person is convicted of an
offense under this section, the court, pursuant to sections
3556, 3663A, and 3664, shall order the person to pay
restitution to the copyright owner and any other victim of
the offense as an offense against property referred to in
section 3663A(c)(1)(A)(ii).''.
(2) Conforming amendments.--(A) Section 506(b) of title 17,
United States Code, is amended by striking all that follows
``destruction'' and inserting the following: ``of property as
prescribed by section 2319(g) of title 18.''.
(B) Section 509 of title 17, United States Code, relating
seizure and forfeiture, and the item relating to section 509
in the table of sections at the beginning of chapter 5 of
title 17, United States Code, are repealed.
(c) Unauthorized Fixation and Trafficking.--
(1) In general.--Section 2319A of title 18, United States
Code, is amended--
(A) by striking subsection (c) and redesignating
subsections (d), (e), and (f) as subsections (c), (d), and
(e), respectively; and
(B) by amending subsection (b) to read as follows:
``(b) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any copies or phonorecords of a live musical
performance described in subsection (a)(1) that are made
without the consent of the performer or performers involved,
and any plates, molds, matrices, masters, tapes, and film
negatives by means of which such copies or phonorecords may
be made.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of a
violation of subsection (a).
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of
subsection (a) that is owned or predominantly controlled by
the violator or by a person conspiring with or aiding and
abetting the violator in committing the violation, except
that property is subject to forfeiture under this clause only
if the Government establishes that there was a substantial
connection between the property and the violation of
subsection (a).
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under paragraph (1). At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
unauthorized copies or phonorecords of live musical
performances, and any plates, molds, matrices, maters, tapes,
and film negatives by means of which such unauthorized copies
or phonorecords may be made, be destroyed or otherwise
disposed of according to law.
``(C) In this paragraph, the term `aiding and abetting'
means knowingly providing aid to the violator with the intent
to facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
this section, shall order, in addition to any other sentence
imposed, that the person forfeit to the United States the
following property:
``(i) Any unauthorized copies or phonorecords of a live
musical performance that were used, intended for use, or
possessed with intent to use in the commission of an offense
under subsection (a), and any plates, molds, matrices,
masters, tapes, and film negatives by means of which such
copies or phonorecords may be made.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of an
offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970
(21 U.S.C. 853), other than subsection (d) of that section.
At the conclusion of the forfeiture proceedings, the court
shall order that any forfeited unauthorized copies or
phonorecords of live musical performances, and any plates,
molds, matrices, masters, tapes, and film negatives by means
of which such unauthorized copies of phonorecords may be
made, be destroyed or otherwise disposed of according to law.
``(3) Notification of importation.--The Secretary of
Homeland Security shall issue regulations by which any
performer may, upon payment of a specified fee, be entitled
to notification by U.S. Customs and Border Protection of the
importation of copies or phonorecords that appear to consist
of unauthorized fixations of the sounds or sounds and images
of a live musical performance prohibited by this section.
``(4) Restitution.--When a person is convicted of an
offense under this section, the court, pursuant to sections
3556, 3663A, and 3664, shall order the person to pay
restitution to the performer or performers involved, and any
other victim of the offense as an offense against property
referred to in section 3663A(c)(1)(A)(ii).''.
(2) Applicability.--Section 2319A(e), as redesignated by
paragraph (1) of this subsection, is amended by inserting
before the period the following: ``, except that the
forfeiture provisions under subsection (b)(2), as added by
the Prioritizing Resources and Organization for Intellectual
Property Act, shall apply only in a case in which the
underlying act or acts occur on or after the date of the
enactment of that Act''.
(d) Unauthorized Recording of Motion Pictures.--Section
2319B(b) of title 18, United States Code, is amended to read
as follows:
``(b) Forfeiture and Destruction; Restitution.--
``(1) Civil forfeiture proceedings.--(A) The following
property is subject to forfeiture to the United States:
``(i) Any copies of a motion picture or other audiovisual
work protected under title 17 that are made without the
authorization of the copyright owner.
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of a
violation of subsection (a).
``(iii) Any property used, or intended to be used, to
commit or facilitate the commission of a violation of
subsection (a) that is owned or predominantly controlled by
the violator or by a person conspiring with or aiding and
abetting the violator in committing the violation, except
that property is subject to forfeiture under this clause only
if the Government establishes that there was a substantial
connection between the property and the violation of
subsection (a).
``(B) The provisions of chapter 46 relating to civil
forfeitures shall extend to any seizure or civil forfeiture
under this section. At the conclusion of the forfeiture
proceedings, the court shall order that any forfeited
unauthorized copies or phonorecords of a motion picture or
other audiovisual work, or part thereof, and any plates,
molds, matrices, masters, tapes, and film negatives by means
of which such unauthorized copies or phonorecords may be
made, be destroyed or otherwise disposed of according to law.
``(C) In this paragraph, the term `aiding and abetting'
means knowingly providing aid to the violator with the intent
to facilitate the violation.
``(2) Criminal forfeiture proceedings.--(A) The court, in
imposing sentence on a person convicted of an offense under
this section, shall order, in addition to any other sentence
imposed, that the person forfeit to the United States the
following property:
``(i) Any unauthorized copies of a motion picture or other
audiovisual work protected under title 17, or part thereof,
that were used, intended for use, or possessed with intent to
use in the commission of an offense under subsection (a).
``(ii) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of an
offense under subsection (a).
``(iii) Any property used, or intended to be used, to
commit or substantially facilitate the commission of an
offense under subsection (a).
``(B) The forfeiture of property under subparagraph (A),
including any seizure and disposition of the property and any
related judicial or administrative proceeding, shall be
governed by the procedures set forth in section 413 of the
Comprehensive Drug Abuse Prevention and Control Act of 1970
(21 U.S.C. 853), other than subsection (d) of that section.
At the conclusion of the forfeiture proceedings, the court
shall order that any forfeited unauthorized copies or
phonorecords of a motion picture or other audiovisual work,
or part thereof, and any plates, molds, matrices, masters,
tapes, and film negatives by means of which such unauthorized
copies or phonorecords may be made, be destroyed or otherwise
disposed of according to law.
``(3) Restitution.--When a person is convicted of an
offense under this chapter, the court, pursuant to sections
3556, 3663A, and 3664, shall order the person to pay
restitution to the owner of the copyright in the motion
picture or other audiovisual work and any other victim of the
offense as an offense
[[Page H3070]]
against property referred to in section
3663A(c)(1)(A)(ii).''.
(e) Applicability.--The amendments made by this section
shall apply only in a case in which the underlying act or
acts occur on or after the date of the enactment of this Act.
SEC. 203. DIRECTIVE TO UNITED STATES SENTENCING COMMISSION.
(a) Review and Amendment.--The United States Sentencing
Commission, pursuant to its authority under section 994 of
title 28, United States Code, shall review and, if
appropriate, amend the Federal sentencing guidelines and
policy statements applicable in any case sentenced under
section 2B5.3 of the Federal sentencing guidelines for
exporting infringing items in violation of section 602(a)(2)
of title 17, United States Code, to determine whether a
defendant in such case should receive an upward adjustment in
the offense level, on the grounds that exportation introduces
infringing items into the stream of foreign commerce in a
manner analogous to the manner in which manufacturing,
importing, and uploading such items introduces them into the
stream of commerce.
(b) Authorization.--The United States Sentencing Commission
may amend the Federal sentencing guidelines under subsection
(a) in accordance with the procedures set forth in section
21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note) as
though the authority under that section had not expired.
SEC. 204. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.
(a) In General.--Section 2320 of title 18, United States
Code, is amended--
(1) in subsection (a)--
(A) by striking ``Whoever'' and inserting ``Offense.--
``(1) In general.--Whoever'';
(B) by moving the remaining text 2 ems to the right; and
(C) by adding at the end the following:
``(2) Serious bodily harm or death.--
``(A) Serious bodily harm.--If the offender knowingly or
recklessly causes or attempts to cause serious bodily injury
from conduct in violation of paragraph (1), the penalty shall
be a fine under this title or imprisonment for not more than
20 years, or both.
``(B) Death.--If the offender knowingly or recklessly
causes or attempts to cause death from conduct in violation
of paragraph (1), the penalty shall be a fine under this
title or imprisonment for any term of years or for life, or
both.''; and
(2) in subsection (b)(l)--
(A) by redesignating subparagraph (B) as subparagraph (C);
and
(B) by inserting after subparagraph (A) the following:
``(B) Any property constituting or derived from any
proceeds obtained directly or indirectly as a result of a
violation of subsection (a).''.
TITLE III--COORDINATION AND STRATEGIC PLANNING OF FEDERAL EFFORT
AGAINST COUNTERFEITING AND PIRACY
Subtitle A--Office of the United States Intellectual Property
Enforcement Representative
SEC. 301. OFFICE OF THE UNITED STATES INTELLECTUAL PROPERTY
ENFORCEMENT REPRESENTATIVE.
(a) Establishment Within Executive Office of the
President.--There is established within the Executive Office
of the President the Office of the United States Intellectual
Property Enforcement Representative (in this title referred
to as ``the Office'').
(b) United States Intellectual Property Enforcement
Representative.--The head of the Office shall be the United
States Intellectual Property Enforcement Representative (in
this title referred to as the ``IP Enforcement
Representative'') who shall be appointed by the President, by
and with the advice and consent of the Senate. As an exercise
of the rulemaking power of the Senate, any nomination of the
IP Enforcement Representative submitted to the Senate for
confirmation, and referred to a committee, shall be referred
to the Committee on the Judiciary.
(c) Duties of IP Enforcement Representative.--
(1) In general.--The IP Enforcement Representative shall--
(A) have primary responsibility for developing the Joint
Strategic Plan against counterfeiting and piracy under
section 321 and facilitating the implementation of the Joint
Strategic Plan by the departments and agencies listed in
subsection (d)(2)(A);
(B) serve as a principal advisor to the President on
domestic and international intellectual property enforcement
policy;
(C) assist the United States Trade Representative--
(i) concerning negotiations on behalf of the United States
relating to international intellectual property enforcement,
including negotiations on any intellectual property
enforcement matter considered under the auspices of the World
Trade Organization or in the course of commodity or direct
investment negotiations in which the United States
participates; and
(ii) in the programs of the United States Trade
Representative to monitor and enforce intellectual property
enforcement obligations of other countries under trade
agreements with the United States;
(D) coordinate the issuance of policy guidance to
departments and agencies on basic issues of policy and
interpretation that arise in the exercise of domestic and
international intellectual property enforcement functions, to
the extent necessary to assure the coordination of
intellectual property enforcement policy and consistency with
any other law;
(E) act as a principal spokesperson of the President on
domestic and international intellectual property enforcement
matters;
(F) report directly to the President and the Congress
regarding domestic and international intellectual property
enforcement programs;
(G) advise the President and the Congress with respect to
domestic and international intellectual property enforcement
challenges and priorities;
(H) report to the Congress, as provided in section 322, on
the implementation of the Joint Strategic Plan, and make
recommendations to the Congress for improvements in Federal
intellectual property enforcement efforts;
(I) chair the interagency intellectual property enforcement
advisory committee established under subsection (d)(2), and
consult with such advisory committee in the performance of
the functions of the IP Enforcement Representative; and
(J) carry out such other functions as the President may
direct.
(2) Limitation on authority.--The IP Enforcement
Representative may not control or direct any law enforcement
agency in the exercise of its investigative or prosecutorial
authority in particular cases.
(3) Sense of congress.--It is the sense of the Congress
that the IP Enforcement Representative should--
(A) be a senior representative on any body that the
President may establish for the purpose of providing to the
President advice on overall policies in which intellectual
property enforcement matters predominate; and
(B) be included as a participant in economic summit and
other international meetings at which international
intellectual property enforcement is a significant topic.
(4) Delegation.--The IP Enforcement Representative may--
(A) delegate any of the IP Enforcement Representative's
functions, powers, and duties to such officers and employees
of the Office as the IP Enforcement Representative may
designate; and
(B) authorize such successive redelegations of such
functions, powers, and duties to such officers and employees
of the Office as the IP Enforcement Representative considers
appropriate.
(d) Coordination of Intellectual Property Enforcement
Actions.--
(1) In general.--In carrying out the functions of the IP
Enforcement Representative, the IP Enforcement Representative
shall develop recommendations on the allocation of Federal
resources for intellectual property enforcement.
(2) Advisory committee.--
(A) Establishment.--There is established an interagency
intellectual property enforcement advisory committee composed
of the IP Enforcement Representative, who shall chair the
committee, and senior representatives of the following
departments and agencies who are involved in intellectual
property enforcement, and are appointed by the respective
heads of those departments and agencies:
(i) The Department of Justice (including the Intellectual
Property Enforcement Officer appointed under section 501).
(ii) The United States Patent and Trademark Office and
other relevant units of the Department of Commerce.
(iii) The Office of the United States Trade Representative.
(iv) The Department of State (including the United States
Agency for International Development and the Bureau of
International Narcotics Law Enforcement).
(v) The Department of Homeland Security (including U.S.
Customs and Border Protection and U.S. Immigration and
Customs Enforcement).
(vi) The United States International Trade Commission.
(vii) The Food and Drug Administration of the Department of
Health and Human Services.
(viii) The United States Copyright Office.
(ix) Such other agencies as the IP Enforcement
Representative determines to be substantially involved in the
efforts of the Federal Government to combat counterfeiting
and piracy.
(B) Functions.--The advisory committee established under
subparagraph (A) shall, under the guidance of the IP
Enforcement Representative, develop the Joint Strategic Plan
against counterfeiting and piracy under section 321.
(3) Exemption from federal advisory committee act.--The
Federal Advisory Committee Act shall not apply to the
interagency intellectual property enforcement advisory
committee established under paragraph (2) or to any of the
activities conducted by the IP Enforcement Representative in
developing the Joint Strategic Plan under section 321.
(e) Identification of Countries That Deny Adequate
Protection of Intellectual Property Rights.--Section
182(b)(2)(A) of the Trade Act of 1974 (19 U.S.C.
2242(b)(2)(A)) is amended by inserting ``the United States
Intellectual Property Enforcement Representative,'' after
``consult with''.
(f) Powers of IP Enforcement Representative.--In carrying
out the responsibilities under this title, the IP Enforcement
Representative may--
(1) select, appoint, employ, and fix the compensation of
such officers and employees
[[Page H3071]]
as may be necessary to carry out those responsibilities;
(2) request the head of a department, agency, or program of
the Federal Government to place personnel of such department,
agency, or program who are engaged in intellectual property
enforcement activities on temporary detail to the Office of
the IP Enforcement Representative to assist in carrying out
those responsibilities;
(3) use, with the consent of the Federal, State, and local
government agencies concerned, the available services,
equipment, personnel, and facilities of such Federal, State,
and local government agencies;
(4) procure the services of experts and consultants in
accordance with section 3109 of title 5, United States Code,
relating to the procurement of temporary and intermittent
services, at rates of compensation for individuals not to
exceed the daily equivalent of the rate of pay payable under
level IV of the Executive Schedule under section 5315 of
title 5, United States Code, and while such experts and
consultants are so serving away from their homes or regular
place of business, pay such employees travel expenses and per
diem in lieu of subsistence at rates authorized by section
5703 of title 5, United States Code, for persons in
Government service employed intermittently;
(5) issue such regulations as may be necessary to carry out
the functions vested in the IP Enforcement Representative;
(6) enter into and perform such contracts, leases,
cooperative agreements, or other transactions as may be
necessary in the conduct of the work of the Office and on
such terms as the IP Enforcement Representative considers
appropriate, with any department, agency, or instrumentality
of the United States, or with any public or private person,
firm, association, corporation, or institution;
(7) accept voluntary and uncompensated services,
notwithstanding the provisions of section 1342 of title 31,
United States Code;
(8) adopt an official seal, which shall be judicially
noticed; and
(9) accept, hold, administer, and use gifts, devises, and
bequests of property, both real and personal, for the purpose
of aiding or facilitating the work of the Office.
(g) Compensation.--Section 5312 of title 5, United States
Code, is amended by adding at the end the following:
``United States Intellectual Property Enforcement
Representative.''.
SEC. 302. DEFINITION.
For purposes of this title, the term ``intellectual
property enforcement'' means matters relating to the
enforcement of laws protecting copyrights, patents,
trademarks, other forms of intellectual property, and trade
secrets, both in the United States and abroad, including in
particular matters relating to combating counterfeit and
pirated goods.
Subtitle B--Joint Strategic Plan
SEC. 321. JOINT STRATEGIC PLAN.
(a) Purpose.--The objectives of the Joint Strategic Plan
against counterfeiting and piracy that is referred to in
section 301(c)(1)(A) (in this section referred to as the
``joint strategic plan'') are the following:
(1) Reducing counterfeit and pirated goods in the domestic
and international supply chain.
(2) Identifying and addressing structural weaknesses,
systemic flaws, or other unjustified impediments to effective
enforcement action against the financing, production,
trafficking, or sale of counterfeit or pirated goods.
(3) Assuring that information is identified and shared
among the relevant departments and agencies, to the extent
permitted by law and consistent with law enforcement
protocols for handling information, to aid in the objective
of arresting and prosecuting individuals and entities that
are knowingly involved in the financing, production,
trafficking, or sale of counterfeit or pirated goods.
(4) Disrupting and eliminating domestic and international
counterfeiting and piracy networks.
(5) Strengthening the capacity of other countries to
protect and enforce intellectual property rights, and
reducing the number of countries that fail to enforce laws
preventing the financing, production, trafficking, and sale
of counterfeit and pirated goods.
(6) Working with other countries to establish international
standards and policies for the effective protection and
enforcement of intellectual property rights.
(7) Protecting intellectual property rights overseas by--
(A) working with other countries to ensure that such
countries--
(i) have adequate and effective laws protecting copyrights,
trademarks, patents, and other forms of intellectual
property;
(ii) have legal regimes that enforce their own domestic
intellectual property laws, eliminate counterfeit and piracy
operations, and arrest and prosecute those who commit
intellectual property crimes;
(iii) provide their law enforcement officials with the
authority to seize, inspect, and destroy pirated and
counterfeit goods, including at ports of entry; and
(iv) provide for the seizure of property used to produce
pirated and counterfeit goods;
(B) exchanging information with appropriate law enforcement
agencies in other countries relating to individuals and
entities involved in the financing, production, trafficking,
or sale of pirated or counterfeit goods;
(C) using the information described in subparagraph (B) to
conduct enforcement activities in cooperation with
appropriate law enforcement agencies in other countries; and
(D) building a formal process for consulting with
companies, industry associations, labor unions, and other
interested groups in other countries with respect to
intellectual property enforcement.
(b) Timing.--Not later than 12 months after the date of the
enactment of this Act, and not later than December 31 of
every third year thereafter, the IP Enforcement
Representative shall submit the joint strategic plan to the
President, to the Committee on the Judiciary and the
Committee on Appropriations of the House of Representatives,
and to the Committee on the Judiciary and the Committee on
Appropriations of the Senate.
(c) Responsibility of the IP Enforcement Representative.--
During the development of the joint strategic plan, the IP
Enforcement Representative--
(1) shall consult and coordinate with the appropriate
officers and employees of departments and agencies
represented on the advisory committee appointed under section
301(d)(2) who are involved in intellectual property
enforcement; and
(2) may consult with private sector experts in intellectual
property enforcement.
(d) Responsibilities of Other Departments and Agencies.--To
assist in the development and implementation of the joint
strategic plan, the heads of the departments and agencies
identified under section 301(d)(2)(A) (including the heads of
any other agencies identified by the IP Enforcement
Representative under section 301(d)(2)(A)(ix)) shall--
(1) designate personnel with expertise and experience in
intellectual property enforcement matters to work with the IP
Enforcement Representative; and
(2) share relevant department or agency information with
the IP Enforcement Representative, including statistical
information on the enforcement activities of the department
or agency against counterfeiting or piracy, and plans for
addressing the joint strategic plan.
(e) Contents of the Joint Strategic Plan.--Each joint
strategic plan shall include the following:
(1) A detailed description of the priorities identified for
carrying out the objectives in the joint strategic plan,
including activities of the Federal Government relating to
intellectual property enforcement.
(2) A detailed description of the means and methods to be
employed to achieve the priorities, including the means and
methods for improving the efficiency and effectiveness of the
Federal Government's enforcement efforts against
counterfeiting and piracy.
(3) Estimates of the resources necessary to fulfill the
priorities identified under paragraph (1).
(4) The performance measures to be used to monitor results
under the joint strategic plan during the following year.
(5) An analysis of the threat posed by violations of
intellectual property rights, including targets, risks, and
threats of intellectual property infringement, the costs to
the economy of the United States resulting from violations of
intellectual property laws, and the threats to public health
and safety created by counterfeiting and piracy.
(6) An identification of the departments and agencies that
will be involved in implementing each priority under
paragraph (1).
(7) A strategy for ensuring coordination between the IP
Enforcement Representative and the departments and agencies
identified under paragraph (6), including a process for
oversight by the executive branch of, and accountability
among, the departments and agencies responsible for carrying
out the strategy.
(8) Such other information as is necessary to convey the
costs imposed on the United States economy by, and the
threats to public health and safety created by,
counterfeiting and piracy, and those steps that the Federal
Government intends to take over the period covered by the
succeeding joint strategic plan to reduce those costs and
counter those threats.
(f) Enhancing Enforcement Efforts of Foreign Governments.--
The joint strategic plan shall include programs to provide
training and technical assistance to foreign governments for
the purpose of enhancing the efforts of such governments to
enforce laws against counterfeiting and piracy. With respect
to such programs, the joint strategic plan shall--
(1) seek to enhance the efficiency and consistency with
which Federal resources are expended, and seek to minimize
duplication, overlap, or inconsistency of efforts;
(2) identify and give priority to those countries where
programs of training and technical assistance can be carried
out most effectively and with the greatest benefit to
reducing counterfeit and pirated products in the United
States market, to protecting the intellectual property rights
of United States persons and their licensees, and to
protecting the interests of United States persons otherwise
harmed by violations of intellectual property rights in those
countries;
(3) in identifying the priorities under paragraph (2), be
guided by the list of countries identified by the United
States Trade Representative under section 182(a) of the Trade
Act of 1974 (19 U.S.C. 2242(a)); and
(4) develop metrics to measure the effectiveness of the
Federal Government's efforts
[[Page H3072]]
to improve the laws and enforcement practices of foreign
governments against counterfeiting and piracy.
(g) Dissemination of the Joint Strategic Plan.--The joint
strategic plan shall be posted for public access on the
website of the White House, and shall be disseminated to the
public through such other means as the IP Enforcement
Representative may identify.
SEC. 322. REPORTING.
(a) Annual Report.--Not later than December 31 of each
calendar year beginning in 2009, the IP Enforcement
Representative shall submit a report on the activities of the
Office during the preceding fiscal year. The annual report
shall be submitted to the President and the Congress, and
disseminated to the people of the United States, in the
manner specified in subsections (b) and (g) of section 321.
(b) Contents.--The report required by this section shall
include the following:
(1) The progress made on implementing the strategic plan
and on the progress toward fulfillment of the priorities
identified under section 321(e), including an analysis of the
performance measures used to monitor results described in
section 321(e)(4).
(2) The progress made in efforts to encourage Federal,
State, and local government departments and agencies to
accord higher priority to intellectual property enforcement.
(3) The progress made in working with foreign countries to
investigate, arrest, and prosecute entities and individuals
involved in the financing, production, trafficking, and sale
of counterfeit and pirated goods.
(4) The manner in which the relevant departments and
agencies are working together and sharing information to
strengthen intellectual property enforcement.
(5) An assessment of the successes and shortcomings of the
efforts of the Federal Government, including departments and
agencies represented on the committee established under
section 301(d)(2)(A), in fulfilling the priorities identified
in the applicable joint strategic plan during the preceding
fiscal year and in implementing the recommendations developed
under section 301(d)(1).
(6) Recommendations for any changes in enforcement
statutes, regulations, or funding levels that the IP
Representative considers would significantly improve the
effectiveness or efficiency of the effort of the Federal
Government to combat counterfeiting and piracy and otherwise
strengthen intellectual property enforcement, including
through the elimination or consolidation of duplicative
programs or initiatives.
(7) The progress made in strengthening the capacity of
countries to protect and enforce intellectual property
rights.
(8) The successes and challenges in sharing with other
countries information relating to intellectual property
enforcement.
(9) The progress of the United States Trade Representative
in taking the appropriate action under any trade agreement or
treaty to protect intellectual property rights of United
States persons and their licensees.
SEC. 323. SAVINGS AND REPEALS.
(a) Repeal of Coordination Council.--Section 653 of the
Treasury and General Government Appropriations Act, 2000 (15
U.S.C. 1128) is repealed.
(b) Current Authorities Not Affected.--Except as provided
in subsection (a), nothing in this title shall alter the
authority of any department or agency of the United States
(including any independent agency) that relates to--
(1) the investigation and prosecution of violations of laws
that protect intellectual property rights;
(2) the administrative enforcement, at the borders of the
United States, of laws that protect intellectual property
rights; or
(3) the United States trade agreements program or
international trade.
(c) Register of Copyrights.--Nothing in this title shall
derogate from the duties and functions of the Register of
Copyrights.
SEC. 324. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
for each fiscal year such sums as may be necessary to carry
out this title.
(b) Submission of Projected Budget.--By not later than the
date on which the President submits to the Congress the
budget of the United States Government for a fiscal year, the
IP Representative shall submit to the Committees on the
Judiciary of the House of Representatives and the Senate the
projected amount of funds for the succeeding fiscal year that
will be necessary for the Office to carry out its functions.
TITLE IV--INTERNATIONAL ENFORCEMENT AND COORDINATION
SEC. 401. INTELLECTUAL PROPERTY ATTACHES.
The Under Secretary of Commerce for Intellectual Property
and Director of the United States Patent and Trademark Office
(in this title referred to as the ``Director''), in
consultation with the Director General of the United States
and Foreign Commercial Service, shall, within 2 years after
the date of the enactment of this Act, appoint at least 10
intellectual property attaches to serve in United States
embassies or other diplomatic missions. The appointments
under this section shall be in addition to those individuals
serving in the capacity of intellectual property attaches at
United States embassies or other diplomatic missions on the
date of the enactment of this Act. The Director shall provide
such managerial, administrative, research, and other services
as the Secretary of Commerce considers necessary to assist
the intellectual property attaches in carrying out their
responsibilities.
SEC. 402. DUTIES AND RESPONSIBILITIES OF INTELLECTUAL
PROPERTY ATTACHES.
The intellectual property attaches appointed under section
401, as well as others serving as intellectual property
attaches of the Department of Commerce, shall have the
following responsibilities:
(1) To promote cooperation with foreign governments in the
enforcement of intellectual property laws generally, and in
the enforcement of laws against counterfeiting and piracy in
particular.
(2) To assist United States persons holding intellectual
property rights, and the licensees of such United States
persons, in their efforts to combat counterfeiting and piracy
of their products or works within the host country, including
counterfeit or pirated goods exported from or transshipped
through that country.
(3) To chair an intellectual property protection task force
consisting of representatives from all other relevant
sections or bureaus of the embassy or other mission.
(4) To coordinate with representatives of the embassies or
missions of other countries in information sharing, private
or public communications with the government of the host
country, and other forms of cooperation for the purpose of
improving enforcement against counterfeiting and piracy.
(5) As appropriate and in accordance with applicable laws
and the diplomatic status of the attaches, to engage in
public education efforts against counterfeiting and piracy in
the host country.
(6) To coordinate training and technical assistance
programs of the United States Government within the host
country that are aimed at improving the enforcement of laws
against counterfeiting and piracy.
(7) To assist in the coordination of the efforts of the
United States Intellectual Property Enforcement
Representative, Federal agencies, and private organizations
engaged in the promotion of United States intellectual
property interests abroad so as to maximize their
effectiveness and minimize duplicative efforts.
(8) To identify and promote other means to more effectively
combat counterfeiting and piracy activities under the
jurisdiction of the host country.
SEC. 403. TRAINING AND DESIGNATION OF ASSIGNMENT.
(a) Training of Attaches.--The Director shall ensure that
each attache appointed under section 401 is fully trained for
the responsibilities of the position before assuming duties
at the United States embassy or other mission in question.
(b) Priority Assignments.--In designating the embassies or
other missions to which attaches are assigned, the Director
shall give priority to those countries where the activities
of an attache can be carried out most effectively and with
the greatest benefit to reducing counterfeit and pirated
products in the United States market, to protecting the
intellectual property rights of United States persons and
their licensees, or to protecting the interests of United
States persons otherwise harmed by violations of intellectual
property rights in those countries.
SEC. 404. COORDINATION.
(a) In General.--The activities authorized by this title
shall be carried out in coordination with the United States
Intellectual Property Enforcement Representative appointed
under section 301.
(b) Report on Attaches.--The Inspector General of the
Department of Commerce shall perform yearly audits of the
intellectual property attaches of the Department, and shall
report to the Committees on the Judiciary of the House of
Representatives and the Senate the results of each such
audit. In addition to an overview of the activities and
effectiveness of the intellectual property attache
operations, the audit shall include--
(1) an evaluation of the current placement of foreign-based
personnel and recommendations for transferring such personnel
in response to newly emerging intellectual property issues
abroad; and
(2) an evaluation of the personnel system and its
management, including the recruitment, assignment, promotion,
and performance appraisal of personnel, and the use of
limited appointees.
SEC. 405. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each fiscal
year such sums as may be necessary for the training and
support of the intellectual property attaches appointed under
section 401 and of other individuals serving as intellectual
property attaches of the Department of Commerce.
TITLE V--DEPARTMENT OF JUSTICE PROGRAMS
Subtitle A--Coordination
SEC. 501. INTELLECTUAL PROPERTY ENFORCEMENT OFFICER.
(a) Establishment.--There is established within the Office
of the Deputy Attorney General in the Department of Justice
the ``Intellectual Property Enforcement Division''. The head
of the Intellectual Property Enforcement Division shall be
the Intellectual Property Enforcement Officer (in this title
referred to as the ``IP Officer''). The IP Officer shall be
appointed by the Attorney General and shall report directly
to the Deputy Attorney General.
[[Page H3073]]
(b) Duties.--The IP Officer shall--
(1) coordinate all efforts of the Department of Justice
relating to the enforcement of intellectual property rights
and to combating counterfeiting and piracy;
(2) serve as the lead representative of the Department of
Justice on the advisory committee provided for in section
301(d)(2) and as the liaison of the Department of Justice
with foreign governments with respect to training conducted
under section 522; and
(3) carry out such other related duties that may be
assigned by the Deputy Attorney General.
(c) Transfer of Functions.--
(1) Criminal intellectual property enforcement.--There are
transferred to the Intellectual Property Enforcement Division
those functions of the Computer Crime and Intellectual
Property Section of the Criminal Division of the Department
of Justice that relate to the enforcement of criminal laws
relating to the protection of intellectual property rights
and trade secrets, including the following:
(A) Sections 506 and 1204 of title 17, United States Code.
(B) Sections 2318 through 2320 of title 18, United States
Code.
(C) Sections 1831 and 1832 of title 18, United States Code.
(D) Any other provision of law, including the following, to
the extent such provision involves the enforcement of any
provision of law referred to in subparagraphs (A) through (C)
or comparable provision of law:
(i) Section 1341 of title 18, United States Code, relating
to frauds and swindles.
(ii) Section 1343 of title 18, United States Code, relating
to fraud by wire, radio, or television.
(iii) Section 2512 of title 18, United States Code,
relating to trafficking in interception devices.
(iv) Section 633 of the Communications Act of 1934 (47
U.S.C. 553), relating to the unauthorized reception of cable
service.
(v) Section 705 of the Communications Act of 1934 (47
U.S.C. 605), relating to the unauthorized publication or use
of communications.
(2) Intellectual property enforcement coordinators.--The
Intellectual Property Law Enforcement Coordinators of the
Department of Justice to whom section 521 applies shall also
be in the Intellectual Property Enforcement Division.
Subtitle B--Law Enforcement Resources
SEC. 511. LOCAL LAW ENFORCEMENT GRANTS.
(a) Authorization.--Section 2 of the Computer Crime
Enforcement Act (42 U.S.C. 3713) is amended--
(1) in subsection (b), by inserting after ``computer
crime'' each place it appears the following: ``, including
infringement of copyrighted works over the Internet''; and
(2) in subsection (e)(1), relating to authorization of
appropriations, by striking ``fiscal years 2001 through
2004'' and inserting ``fiscal years 2009 through 2013''.
(b) Grants.--The Office of Justice Programs of the
Department of Justice shall make grants to eligible State or
local law enforcement entities, including law enforcement
agencies of municipal governments and public educational
institutions, for training, prevention, enforcement, and
prosecution of intellectual property theft and infringement
crimes (in this subsection referred to as ``IP-TIC grants''),
in accordance with the following:
(1) Use of ip-tic grant amounts.--IP-TIC grants may be used
to establish and develop programs to do the following with
respect to the enforcement of State and local true name and
address laws and State and local criminal laws on anti-
piracy, anti-counterfeiting, and unlawful acts with respect
to goods by reason of their protection by a patent,
trademark, service mark, trade secret, or other intellectual
property right under State or Federal law:
(A) Assist State and local law enforcement agencies in
enforcing those laws, including by reimbursing State and
local entities for expenses incurred in performing
enforcement operations, such as overtime payments and storage
fees for seized evidence.
(B) Assist State and local law enforcement agencies in
educating the public to prevent, deter, and identify
violations of those laws.
(C) Educate and train State and local law enforcement
officers and prosecutors to conduct investigations and
forensic analyses of evidence and prosecutions in matters
involving those laws.
(D) Establish task forces that include personnel from State
or local law enforcement entities, or both, exclusively to
conduct investigations and forensic analyses of evidence and
prosecutions in matters involving those laws.
(E) Assist State and local law enforcement officers and
prosecutors in acquiring computer and other equipment to
conduct investigations and forensic analyses of evidence in
matters involving those laws.
(F) Facilitate and promote the sharing, with State and
local law enforcement officers and prosecutors, of the
expertise and information of Federal law enforcement agencies
about the investigation, analysis, and prosecution of matters
involving those laws and criminal infringement of copyrighted
works, including the use of multi-jurisdictional task forces.
(2) Eligibility.--To be eligible to receive an IP-TIC
grant, a State or local government entity must provide to the
Attorney General--
(A) assurances that the State in which the government
entity is located has in effect laws described in paragraph
(1);
(B) an assessment of the resource needs of the State or
local government entity applying for the grant, including
information on the need for reimbursements of base salaries
and overtime costs, storage fees, and other expenditures to
improve the investigation, prevention, or enforcement of laws
described in paragraph (1); and
(C) a plan for coordinating the programs funded under this
section with other federally funded technical assistance and
training programs, including directly funded local programs
such as the Edward Byrne Memorial Justice Assistance Grant
Program authorized by subpart 1 of part E of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.
3750 et seq.).
(3) Matching funds.--The Federal share of an IP-TIC grant
may not exceed 90 percent of the costs of the program or
proposal funded by the IP-TIC grant, unless the Attorney
General waives, in whole or in part, the 90 percent
requirement.
(4) Authorization of appropriations.--
(A) Authorization.--There is authorized to be appropriated
to carry out this subsection the sum of $25,000,000 for each
of fiscal years 2008 through 2012.
(B) Limitation.--Of the amount made available to carry out
this subsection in any fiscal year, not more than 3 percent
may be used by the Attorney General for salaries and
administrative expenses.
SEC. 512. CHIP UNITS, TRAINING, AND ADDITIONAL RESOURCES.
(a) Evaluation of CHIP Units.--The Attorney General shall
review the allocation and activities of the Computer Hacking
and Intellectual Property (in this section referred to as
``CHIP'') units that have been established in various Federal
judicial districts, with the goals of--
(1) improving the effectiveness of CHIP units in
investigating and prosecuting criminal offenses arising from
counterfeiting or piracy activities;
(2) ensuring that CHIP units are established and funded in
every judicial district in which they can be effectively
deployed;
(3) upgrading the training and expertise of Department of
Justice personnel participating in CHIP units; and
(4) improving the coordination of the activities of CHIP
units with corresponding efforts of State and local law
enforcement agencies operating within the Federal judicial
district in question.
(b) Requirements.--In addition to any initiatives
undertaken as a result of the review conducted under
subsection (a), the Attorney General, in consultation with
the Director of the Federal Bureau of Investigation, shall
ensure that--
(1) each CHIP unit is supported by at least 2 additional
agents of the Federal Bureau of Investigation for the purpose
of investigating intellectual property crimes;
(2) each CHIP unit is assigned at least 1 additional
assistant United States attorney to support such unit for the
purpose of prosecuting intellectual property crimes or other
crimes involved in counterfeiting or piracy activities;
(3) CHIP units are established and staffed in at least 10
Federal judicial districts in addition to those districts in
which CHIP units exist on the date of the enactment of this
Act; and
(4) an operational unit is created consisting of not less
than 5 agents of the Federal Bureau of Investigation,
attached to the headquarters of the Federal Bureau of
Investigation in Washington, D.C., and dedicated to working
with the Intellectual Property Enforcement Division
established by section 501 on the development, investigation,
and coordination of complex, multi-district, and
international criminal intellectual property cases.
(c) Coordination With State and Local Authorities.--The
United States attorney for each Federal judicial district in
which a CHIP unit is in operation shall ensure that the
activities of that unit are coordinated with the
corresponding activities of State and local law enforcement
agencies operating within that Federal judicial district in
the investigation of intellectual property crimes and other
crimes involved in counterfeiting or piracy, including by
coordinating Federal, State, and local operations and
intelligence sharing to the extent appropriate.
(d) Additional Responsibilities of the Attorney General.--
The Attorney General, in consultation with the Director of
the Federal Bureau of Investigation as appropriate, shall
ensure the following:
(1) All assistant United States attorneys who are assigned
to CHIP units, and all agents of the Federal Bureau of
Investigation who support those units, have received advanced
training, on an annual basis, in the investigation and
prosecution of intellectual property crimes and other crimes
involved in counterfeiting and piracy.
(2) All relevant units of the Department of Justice are
allocated sufficient funding and other resources as may be
necessary to provide expert computer forensic assistance,
including from nongovernmental entities, in investigating and
prosecuting intellectual property crimes in a timely manner.
For purposes of this paragraph, the term ``all relevant
units'' includes those officers and employees assigned to
carry out the functions transferred by section 501(c)(1),
CHIP units, offices of the United States attorneys, and units
of the Federal Bureau of Investigation that are engaged in
the investigation of intellectual property crimes.
[[Page H3074]]
SEC. 513. TRANSPARENCY OF PROSECUTORIAL DECISIONMAKING.
(a) In General.--The Attorney General shall direct each
United States attorney--
(1) to review the formal or informal standards currently in
effect in that Federal judicial district for accepting or
declining prosecution of cases involving criminal violations
of intellectual property laws;
(2) to consider whether the standards should be modified or
applied more flexibly--
(A) to ensure that significant violations are not being
declined for prosecution inappropriately; or
(B) in light of the broader impact of individual cases on
the overall strategy to combat counterfeiting and piracy; and
(3) to review the practices and procedures currently in
place for providing information to complainants and victims
in cases and investigations involving criminal violations of
intellectual property laws regarding the status of such cases
and investigations, including the practices and procedures
for apprising interested parties of the decision to decline
prosecution of such cases.
(b) Construction.--
(1) Prosecutorial matters.--Nothing in this section shall
be construed to impinge on the appropriate exercise of
prosecutorial discretion with respect to cases involving
criminal violations of intellectual property laws or to
require the promulgation of formal standards or thresholds
regarding prosecution of any cases.
(2) No claims, etc., may be asserted.--Nothing in the
section shall give rise to any claim, cause of action,
defense, privilege, or immunity that may be asserted by any
party to Federal litigation.
SEC. 514. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each fiscal
year such sums as may be necessary to carry out this
subtitle.
Subtitle C--International Activities
SEC. 521. INTERNATIONAL INTELLECTUAL PROPERTY LAW ENFORCEMENT
COORDINATORS.
(a) Deployment of Additional Coordinators.--The Attorney
General shall, within 180 days after the date of the
enactment of this Act, deploy 5 Intellectual Property Law
Enforcement Coordinators, in addition to those serving in
such capacity on such date of enactment. Such deployments
shall be made to those countries and regions where the
activities of such a coordinator can be carried out most
effectively and with the greatest benefit to reducing
counterfeit and pirated products in the United States market,
to protecting the intellectual property rights of United
States persons and their licensees, and to protecting the
interests of United States persons otherwise harmed by
violations of intellectual property rights in those
countries. The mission of all International Intellectual
Property Law Enforcement Coordinators shall include the
following:
(1) Acting as liaison with foreign law enforcement agencies
and other foreign officials in criminal matters involving
intellectual property rights.
(2) Performing outreach and training to build the
enforcement capacity of foreign governments against
intellectual property-related crime in the regions in which
the coordinators serve.
(3) Coordinating United States law enforcement activities
against intellectual property-related crimes in the regions
in which the coordinators serve.
(4) Coordinating with the activities of the intellectual
property attaches appointed under title IV in the countries
or regions to which the coordinators are deployed.
(5) Coordinating the activities of the coordinators with
the IP Officer.
(b) Authorization of Appropriations.--There are authorized
to be appropriated for each fiscal year such sums as may be
necessary for the deployment and support of all International
Intellectual Property Enforcement Coordinators of the
Department of Justice, including those deployed under
subsection (a).
SEC. 522. INTERNATIONAL TRAINING ACTIVITIES OF THE COMPUTER
CRIME AND INTELLECTUAL PROPERTY SECTION.
(a) Increased Training and Technical Assistance to Foreign
Governments.--The Attorney General shall increase the efforts
of the Department of Justice to provide training and
technical assistance to foreign governments, including
foreign law enforcement agencies and foreign courts, to more
effectively combat counterfeiting and piracy activities
falling within the jurisdiction of such governments.
(b) Conduct of Programs.--The increased training and
technical assistance programs under subsection (a) shall be
carried out by the Intellectual Property Enforcement Division
established by section 501, as well as through such other
divisions, sections, or agencies of the Department of Justice
as the Attorney General may direct.
(c) Priority Countries.--The Attorney General, in providing
increased training and technical assistance programs under
this section, shall give priority to those countries where
such programs can be carried out most effectively and with
the greatest likelihood of reducing counterfeit and pirated
products in the United States market, of protecting the
intellectual property rights of United States persons, or of
protecting the interests of United States persons otherwise
harmed by violations of intellectual property rights in those
countries.
(d) Authorization of Appropriations.--There are authorized
to be appropriated for each fiscal year such sums as may be
necessary to carry out this section.
Subtitle D--Coordination, Implementation, and Reporting
SEC. 531. COORDINATION.
The IP officer shall ensure that activities undertaken
under this title are carried out in a manner consistent with
the joint strategic plan developed under section 321.
SEC. 532. ANNUAL REPORTS.
Not later than 1 year after the date of the enactment of
this Act, and annually thereafter, the Attorney General shall
submit to the Committees on the Judiciary of the Senate and
the House of Representatives a report on actions taken to
carry out this title, including a report on the activities of
the IP Officer.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Smith) each
will control 20 minutes.
The Chair recognizes the gentleman from Michigan.
General Leave
Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days to revise and extend their remarks and include
extraneous material.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, today we move to dramatically step up our Nation's
intellectual property laws and enforcement efforts. With so much
unpleasant economic news in the headlines, the measure before us, H.R.
4279, puts resources towards aiding a sector of the economy that
employs an estimated 18 million workers. That is 13 percent of our
labor force and accounts for half of all of the United States exports
driving 40 percent of the country's growth.
As a result of less-than-effective enforcement, however,
counterfeiting and piracy cost the United States' economy somewhere in
the neighborhood of $250 billion a year and creates the loss of about
750,000 American jobs.
And so H.R. 4279 will do these important things: It will prioritize
intellectual property protection to the highest level of our government
by creating an office in the White House that will be responsible for
coordinating the intellectual property efforts of eight diverse
agencies and producing a national Joint Strategic Plan for IP
enforcement. It will elevate IP enforcement within the Department of
Justice and provide more resources for investigating and prosecuting IP
crimes.
It will make changes to both civil and criminal IP laws to enhance
the ability of intellectual property owners to effectively protect
their rights, and it will increase penalties for IP violations that
endanger public health and safety.
Throughout the process of developing this bill, we heard many
expressions of support as well as a number of expressions of concern.
But we've been able to work out these issues on a bipartisan basis at
every step of the process.
I congratulate the distinguished members of the Judiciary Committee,
both Republicans and Democrats, for their cooperation in this process.
And so now as a result, the measure is supported by the Consumer
Electronics Association, the Digital Media Association, the Net
Coalition, the Internet Commerce Coalition, the Coalition for
Consumers' Picture Rights, the Printing Industries Association and
more.
That is in addition to the support we've already had from the
Teamsters, the Directors Guild of America, SEIU, AFTRA, Unite Here,
AFM, OPEIU, the Coalition Against Counterfeiting in Piracy, the Motor
Equipment Manufacturing Association, the Motion Picture Association of
America, PHARMA, and NBC Universal.
Intellectual property protection is among the key issues that will
determine American competitiveness in the 21st century. The ability to
create, innovate, and generate the best artistic, technological, and
knowledge-based intellectual property is the formula for continued
growth in the global economy and is fundamental to the promotion of
human progress.
This committee of ours, the Judiciary Committee, has given these
items involved in the measure extensive consideration, lots of
compromise back and forth, and we feel that this bill will make
important contributions to the fight against counterfeiting and piracy.
[[Page H3075]]
It was reported by voice with strong bipartisan statements of support,
and I urge my colleagues to vote for its passage.
Mr. Speaker, I reserve the balance of my time.
{time} 1415
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, at the outset I want to recognize Chairman Conyers,
Subcommittee Chairman Berman and Ranking Member Howard Coble of the
subcommittee, each of whom I have enjoyed working with in developing
and advancing this legislation.
Mr. Speaker, at a time when many Americans are facing a slowing
economy and increasing costs of food and fuel, it is imperative that
Congress put aside any differences we may have and work together to
promote the interests of U.S. entrepreneurs and industry.
Over the past 25 years, perhaps no group of industries has
contributed more to the tremendous and sustained growth in our economy
than those who rely on strong patent, trademark and copyright
protections.
American intellectual property industries, including entertainment,
high-tech and pharmaceutical industries, account for over half of all
U.S. exports, represent 40 percent of the country's economic growth and
employ 18 million American workers.
American technology, entertainment and productivity-based enterprises
serve as the cornerstone of our economic and export strength.
Because of the important role IP industries play in our economy, we
cannot take these innovations, or their creativity and investment
required to bring them to life, for granted.
Unfortunately, the tremendous success of these innovators, creators
and rights-holders has made them prime targets for thieves who seek out
items protected by patent, copyright, trademark or trade secret
designation. These thieves not only steal the creations of others, but
also reap the monetary benefits by reproducing and distributing the
products themselves.
And the losses attributed to counterfeiting and piracy affect more
than the inventor. According to the U.S. Government, American
businesses lose approximately $250 billion each year to pirated and
counterfeited goods.
The theft of intellectual property has also cost nearly 750,000
Americans their jobs. Given the current state of the economy,
preventing these crimes and enforcing IP laws must be a top priority
for the Federal Government.
H.R. 4279, the Prioritizing Resources and Organization for
Intellectual Property Act of 2008, which is also known as PRO-IP, is a
measure designed to respond directly to these challenges.
Specifically, the bill strengthens our laws against counterfeiting
and piracy; provides new resources to key agencies involved in the
enforcement of IP rights; and mandates a new and unprecedented level of
coordination and leadership on IP enforcement issues from the White
House.
Mr. Speaker, the incentive to innovate and the ability to profit from
the creation of new intellectual property cannot be sustained without
enforcing the rights that protect the ownership of such valuable,
intangible property.
And while our government agencies are doing more today to protect
intellectual property than ever before, the reality is that we must do
much more. We must make it increasingly difficult, and costly, for
counterfeiters and traffickers, some of whom are connected to organized
crime, to steal and profit from American innovations.
Because intellectual property is such an important asset for both the
inventor and the economy as a whole, Congress has a responsibility to
ensure that IP enforcement is made a permanent priority of every
administration.
By supporting the PRO-IP bill, the House will send a clear message
that there is a bipartisan commitment to ensure the next President and
succeeding administrations have the resources, organizations and
strategies required to protect our vital national and economic
interests.
Mr. Speaker, I urge my colleagues to support this bill, H.R. 4279.
I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I rise now to yield to my dear friend and
chairman of the Intellectual Property Subcommittee who's worked on this
subject matter for so many years. Howard Berman has been a bellwether
in bringing together the groups, and I'm happy to yield him as much
time as he may consume.
Mr. BERMAN. Thank you, Chairman Conyers, for those kind words.
I rise today in support of H.R. 4279. American inventors, artists and
businesses rely on intellectual property rights to protect the value of
their creative works. These works, unfortunately, are being ripped off
around the world. The rampant counterfeiting and piracy of U.S.
products is having a devastating impact on our economy.
Counterfeit and pirated products may account for up to 8 percent of
world trade, and a significant portion of this illicit trade are knock-
offs of American products. Latest estimates indicate that U.S.
businesses lose up to $250 billion a year due to intellectual property
theft. This level of counterfeiting and piracy of U.S. intellectual
property rights translates to job losses, lower tax receipts, and a
greater trade deficit. It has also led to public health and safety
threats ranging from exploding batteries to toxic pharmaceuticals to
sawdust brake pads.
The economic threat and safety problems that counterfeit and pirated
products pose for U.S. businesses and consumers must be dealt with.
Given the difficult economic times we find ourselves in, it is that
much more important that we address these problems quickly and
effectively.
I am aware of the recent efforts the administration has taken to stem
the tide of counterfeit and pirated products. The Department of
Homeland Security has seized record numbers of counterfeit and pirated
goods coming through the border. The Department of Justice is
prosecuting and convicting more intellectual property thieves. The
Patent and Trademark Office has stationed representatives in foreign
countries to advocate for better enforcement. However, despite these
efforts, intellectual property theft is on the rise. More must be done.
H.R. 4279 is more.
The Act strengthens our civil and criminal laws in ways that attack
the organizational structures intellectual property thieves are using
and reduce the economic incentives that thieves have to engage in
commercial scale counterfeiting and piracy. The Act devotes more
resources to investigate and prosecute intellectual property crimes.
The Act also provides more resources for the U.S. Government to work
with other governments to improve intellectual property enforcement
abroad.
And probably most importantly, H.R. 4279 provides a permanent and
effective means of coordinating intellectual property enforcement
activities. This includes the creation of an intellectual property
enforcement representative in the Executive Office of the President and
requiring that a national strategic plan to counter intellectual
property theft be created, complete with clear goals and benchmarks
that will facilitate accountability.
I'd like very much to thank Chairman Conyers, Ranking Member Smith,
and Subcommittee Ranking Member Coble and all of their staffs, as well
as mine, for the hard work they've put into crafting this bill. The
hard work shows in both the scope of the reforms and in the strong
support for the bill by U.S. businesses and labor groups, and Chairman
Conyers outlined a number of those organizations and the broad sweep
that they cover and their strong endorsement.
I'm also pleased to say that the amendments adopted in the bill
before us go a long way in alleviating concerns raised over the
operational independence of agencies like the USTR and the Department
of Justice, without compromising the underlying reforms.
H.R. 4279 will bolster U.S. efforts to combat counterfeiting and
piracy, and I urge support of the bill.
Mr. SMITH of Texas. Mr. Speaker, I yield to the gentleman from North
Carolina (Mr. Coble), the ranking member of the Intellectual Property
Subcommittee and the former chairman of the Intellectual Property
Subcommittee, as much time as he may consume.
Mr. COBLE. I thank the gentleman from Texas and, Mr. Speaker, at the
outset I, too, want to recognize and express thanks to Judiciary
Chairman
[[Page H3076]]
John Conyers, Ranking Member Lamar Smith, and Subcommittee Chairman
Howard Berman for having made every effort to address all concerns
raised during the development of this legislation.
Mr. Speaker, the Prioritizing Resources and Organization for
Intellectual Property Act of 2008 reflects a bipartisan recognition and
shared commitment to the strengthening of our Nation's intellectual
property laws.
A comprehensive measure, it is not confined to making marginal
improvements in the available civil and criminal authorities. Instead,
it incorporates bold and urgently needed provisions that will
permanently elevate the importance of intellectual property, IP,
enforcement in future administrations.
This is accomplished by providing focused and accountable strategic
leadership in the Executive Office of the President and at key
enforcement agencies.
Mr. Speaker, in considering why we should take steps to improve the
enforcement of U.S. IP rights, Members should be aware that U.S. losses
from global copyright piracy and counterfeiting cost our innovators and
entrepreneurs from $200 to $250 billion each and every year.
The impact in America has been widespread. More than 750,000
Americans in communities across our land have lost their jobs due to
counterfeiting and piracy. Counterfeit goods lack proper quality
control and can be dangerous. Toothpaste, medicines, cigarettes, and
fake auto parts are but a small sample of the virtually unlimited
supply of goods that have been counterfeited.
The United States Chamber of Commerce has done an excellent job of
documenting the extent of this problem. I encourage anyone interested
in learning about these issues to visit the Chamber's Web site for
additional information or to take the time to watch the documentary
Illicit which was produced by National Geographic and the Chamber.
Mr. Speaker, fighting piracy and counterfeiting, as you all know, is
easier said than done because most of this illicit activity occurs
outside our borders. In recent years, the Federal Government has made
progress in improving both our domestic and global enforcement efforts,
but it is also clear that achieving success in the fight against piracy
and counterfeiting requires government-wide coordination and
cooperation.
In addition to authorizing the Office of the United States
Intellectual Property Enforcement Representative, H.R. 4279 also raises
the profile of IP enforcement within the Department of Justice through
the creation of a new IP enforcement division. This is absolutely
necessary in my opinion.
The bill creates an additional 10 attaches at the United States
Patent and Trademark Office who will be assigned to work with foreign
countries to better coordinate our international enforcement efforts.
And the bill enhances existing anti-piracy and counterfeiting
criminal statutes, authorizes grants to assist local anti-piracy and
counterfeiting efforts, and directs the Justice Department to refine
its policies for investigating and prosecuting piracy and
counterfeiting operations.
Before closing, Mr. Speaker, I'd like to note for the record three
final amendments the managers agreed to incorporate into the bill. The
first is designed to harmonize the cooperative provisions in title II
of the bill.
The second, in section 301, places an affirmative limitation on the
authority of the new IP enforcement representative that makes clear the
official has no authority to control or direct law enforcement agencies
in the exercise of their respective investigative or prosecutorial
discretion in particular cases.
And the third, which amends section 323 of the bill, simply contains
technical and conforming changes to make the text of the bill clearer.
Finally, Mr. Speaker, I want to recognize some of the stakeholders
who have worked so diligently on this effort. Specifically, I'd like to
note the efforts of the Coalition Against Counterfeiting and Piracy,
which has been so ably led by Mr. Rick Cotton; and the U.S. Chamber of
Commerce, which, of course, is led by President Tom Donohue; and the
Congressional International Anti-Piracy Caucus, which is led by
Representatives Adam Schiff of California and Bob Goodlatte of
Virginia.
In closing, I urge my colleagues to support H.R. 4279, and I thank
the distinguished gentleman from Texas for having yielded to me.
Mr. CONYERS. Mr. Speaker, I think I have only one speaker left, but
might I say a word about the distinguished ranking member, Lamar Smith
of Texas, who's worked with us incredibly, with deliberation. He's
brought parties together. There has been an enormous amount of work
behind the scenes for which nobody knows how much he's done to make
this possible. I thank him publicly.
I now yield the rest of our time to the gentleman from Tennessee (Mr.
Cohen).
{time} 1430
Mr. COHEN. I want to thank the chairman and the chairmen for the work
they've done, and for the ranking member, on this bill.
I rise in support of H.R. 4279, the Prioritizing Resources and
Organization for Intellectual Property Act of 2008, or the PRO-IP Act.
Our Nation's intellectual property is the basis for our economic
success and security. That is something that can't be undermined by
cheap labor prices overseas. It's an American product. Therefore,
protecting our intellectual property must be among our highest
priorities.
In addition to undermining our global economic primacy, counterfeit
and pirated products can threaten the health and safety of American
consumers, American pet owners, steal income from legitimate
businesses, deprive American workers of good jobs, and undermine the
necessary incentive for innovation and creativity which has made
America the great country that it is. It is for these reasons I'm an
original cosponsor of the PRO-IP Act.
The PRO-IP Act will help strengthen enforcement of intellectual
property rights domestically and internationally through enhanced
criminal and civil penalties for intellectual property crimes, better
high-level coordination among Federal Government agencies, and
increased resources to domestic and foreign law enforcement
authorities.
This bill, Mr. Speaker, rightfully enjoys broad support from a wide
range of industries, including the entertainment, pharmaceutical, food,
automobile parts and software industries. It has such diverse partners
as the Chamber of Commerce and the Teamsters. When the Chamber of
Commerce and the Teamsters come together it's like E.F. Hutton--we
listen. We've listened well and need to pass this bill.
This coalition that supports PRO-IP is indicative of the broad
support and the need for passage of such legislation. I urge my
colleagues to heed the words and vote in favor of this important
legislation.
Mr. SMITH of Texas. Mr. Speaker, first of all, I'd like to thank the
chairman of the Judiciary Committee, Mr. Conyers, for his earlier very
generous comments.
Mr. Speaker, I submit the following extraneous material for the
Record:
Congress of the United States,
Washington, DC, May 5, 2008.
Re support H.R. 4279, the PRO-IP Act.
Dear Colleague: We want to alert all Congressional Caucus
on Intellectual Property Promotion and Piracy Prevention
Members that tomorrow the House will consider H.R. 4279, the
Prioritizing Resources and Organization for Intellectual
Property Act of 2007 (PRO IP Act) under suspension of the
rules. As a caucus dedicated to enforcing IP rights, it is
not only critical that our Members support this legislation,
but also make an effort to educate other Members about the
value of protecting American IP.
It has become increasingly clear that IP-based industries
are the key to the future competitiveness and economic
prosperity of the United States. They currently account for
between $5-5.5 trillion of the U.S. gross domestic product
and this sector is responsible for 40% of the nation's
economic growth. It is therefore imperative that our
government protect IP industries from criminal networks that
engage in counterfeiting and piracy, which cost U.S.
businesses $250 billion annually and have caused the loss of
750,000 American jobs.
Unfortunately, the counterfeiting and piracy problem will
continue to worsen without strong, resolute action by
Congress. The PRO IP Act addresses this disturbing trend by
strengthening civil and criminal IP laws
[[Page H3077]]
to deter offenders and also provides increased government
resources and coordination to enforce Americans' IP rights in
the U.S. and around the world.
Given the extent of the counterfeiting and piracy problem
and its impact on U.S. economic security, jobs, and consumer
health and safety, it is not surprising that H.R. 4279 is
supported by an array of businesses, trade associations and
organized labor groups.
We urge you to support this legislation.
If you have any questions about the Congressional Caucus on
Intellectual Property Promotion and Piracy Prevention please
feel free to contact the following Member Offices Rep. Robert
Wexler (Ellen McLaren, 202-225-3001), Rep. Mary Bono Mack
(Paul Cancienne, 202-225-5330), Rep. Tom Feeney (D. Cameron
Smith, 202-225-2706), or Rep. Adam Smith (Jonathan Pawlow,
202-225-8901).
Sincerely,
Robert Wexler,
Member of Congress.
Tom Feeney,
Member of Congress.
Mary Bono Mack,
Member of Congress.
Adam Smith,
Member of Congress.
____
Chamber of Commerce of the
United States of America,
Washington, DC, April 29, 2008.
Hon. John Conyers, Jr.,
Chairman, Committee on the Judiciary, House of
Representatives, Washington, DC.
Hon. Lamar Smith,
Ranking Member, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Chairman Conyers and Ranking Member Smith: The U.S.
Chamber of Commerce, the world's largest business federation
representing more than three million businesses and
organizations of every size, sector, and region, would like
to thank you for scheduling a full committee markup of H.R.
4279, the ``Prioritizing Resources and Organization for
Intellectual Property Act of 2007,'' (PRO-IP Act).
Protection of intellectual property (IP) is critical to
America's continued competitiveness and future economic
security. Counterfeiting and piracy of IP costs the United
States an estimated 750,000 jobs and U.S. companies close to
$250 billion in annual revenue. Moreover, counterfeit
products such as auto and aviation parts, toothpaste,
prescription drugs, and many others pose a severe health and
safety risk to American consumers.
Unfortunately, the incidence of counterfeiting and piracy
has increased faster than the government resources necessary
to stop this problem and current legal penalties are
insufficient to deter criminals. H.R. 4279 addresses these
concerns by providing increased resources and coordination
within the executive branch for IP enforcement and enhancing
civil and criminal IP laws.
The Chamber appreciates your leadership on this important
issue and supports expeditious approval of the PRO-IP Act by
the Judiciary Committee and the full House of
Representatives.
Sincerely,
R. Bruce Josten,
Executive Vice President,
Government Affairs.
____
April 29, 2008.
Hon. John Conyers, Jr.,
Chairman, Committee on the Judiciary, House of
Representatives, Washington, DC.
Hon. Lamar Smith,
Ranking Member, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Chairman Conyers and Ranking Member Smith: The
Coalition Against Counterfeiting and Piracy (CACP), which
includes more than 500 businesses and associations, thanks
you for scheduling a markup of H.R. 4279, the ``Prioritizing
Resources and Organization for Intellectual Property Act of
2007,'' (PRO-IP Act).
As you know, intellectual property (IP) accounts for more
than $5 trillion of the U.S. gross domestic product,
comprises more than half of all U.S. exports, and represents
40 percent of U.S. economic growth. Counterfeiting and piracy
of IP are growing problems that threaten the ability of
businesses to remain competitive and continue providing
quality jobs to Americans. Additionally, unsafe counterfeit
products pose a severe risk to U.S. consumer health and
safety.
CACP members strongly support passage of the PRO-IP Act
because it will help the U.S. government significantly
improve IP protection and enforcement both internationally
and domestically. It is crucial that Congress address
counterfeiting and piracy before the end of this session.
CACP therefore urges the Committee on the Judiciary not to
adopt any controversial amendments that might jeopardize
swift enactment of this legislation.
The CACP thanks you again for sponsoring the PRO-IP Act and
for your continued leadership in moving this critical bill
through the legislative process.
Sincerely,
Rick Cotton,
Chairman, The Coalition Against
Counterfeiting and Piracy.
____
International Trademark
Association,
Washington, DC, May 5, 2008.
Dear Member, The International Trademark Association (INTA)
would like to express its full support for the legislation,
``Prioritizing Resources and Organization for Intellectual
Property Act of 2007'' (H.R. 4279). INTA is a not-for-profit
membership association of more than 5,500 trademark owners
and professionals dedicated to the support and advancement of
trademarks and related intellectual property (``IP'') as
elements of fair and effective national and international
commerce. We urge you to vote ``YES'' on H.R, 4279.
We commend the House of Representatives for this bill,
which seeks to improve the protection of IP and enhances the
capacity for enforcement and coordination activities. The
protection of intellectual property is a global challenge and
requires a focus on strengthening and streamlining U.S. law
and policy as well as a mechanism for creating new
opportunities for enforcement and collaboration on a global
level. H.R. 4279 succeeds in achieving these objectives.
Counterfeiting is a growing problem that is affecting the
health and well-being of consumers throughout the world. It
steals the identity of trademark owners and robs consumers of
a safe and reliable marketplace. For the U.S. economy, it
translates into lost jobs and lost tax revenues.
Specifically, the cost to the U.S. economy is estimated at
$200 to $250 billion per year. Passage of H.R. 4279 is a
crucial step to counteract the challenges and burdens
presented by counterfeiting.
INTA is pleased to see a united effort by Congress to
address this growing problem and INTA looks forward to
passage of this legislation in the House of Representatives.
Thank you.
Sincerely,
Alan C. Drewsen,
Executive Director.
____
Motion Picture Association
of America, Inc.,
Washington, DC, May 6, 2008.
Hon. Nancy Pelosi,
House of Representatives,
Washington, DC.
Hon. John Boehner,
House of Representatives,
Washington, DC.
Dear Speaker Pelosi and Leader Boehner: On behalf of the
Motion Picture Association of America, I write to convey our
strong support for House passage of H.R. 4279, the
Prioritizing Resources and Organization for Intellectual
Property Act of 2007. H.R. 4279 is a comprehensive bi-
partisan measure that will strength protections for
intellectual property and thereby strengthen our nation's
economy and generate more jobs for American workers.
Theft of intellectual property by counterfeiting and
copyright piracy have a profoundly detrimental impact on our
nation's economy. Theft of intellectual property costs
American industry more than $250 billion annually, as well as
an estimated 750,000 jobs. Piracy costs the motion picture
and television production industries alone over 140,000 U.S.
jobs each year. Absent piracy, workers employed by the motion
picture and television production industries would earn an
additional $5.5 billion per year, and cities, towns and
states would receive $837 million in additional tax revenue
annually. Protecting intellectual property is vital to our
nation's continuing economic strength and H.R. 4279 includes
important and much needed provisions that will help do so.
H.R. 4279 will ensure that federal authorities have the
resources necessary to investigate and prosecute criminal
intellectual property crimes. It will also ensure that
intellectual property protection remains a federal priority
by creating a new office within the White House dedicated to
this important goal. Finally, H.R. 4279 increases the
protection of American intellectual property abroad by
enhancing critically important international enforcement
resources.
Intellectual property is among America's most precious
commodities. Protecting intellectual property is good for
America's economy, will produce more jobs for U.S. workers
and more and better products for consumers. H.R. 4279 is a
measured, reasonable and much-needed piece of legislation
that will ensure that the American intellectual property
system remains the world leader. This important legislation
has strong bi-partisan support and enjoys broad support from
both the American business community, and labor unions.
Accordingly, we urge House Members to vote in favor of H.R.
4279.
Sincerely,
Dan Glickman,
Chairman and
Chief Executive Officer.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in strong support of
H.R. 4279, the ``Prioritizing Resources and Organization for
Intellectual Property (PRO-IP) Act of 2007.'' I urge my colleagues to
join me in voting for this legislation. I am confident that working
together we can address and strengthen criminal and civil enforcement
of United States intellectual property law.
The purpose of H.R. 4279 is to strengthen criminal and civil
enforcement of United States intellectual property law focusing, in
particular, on copyright violations (piracy) and trademark violations
(counterfeiting). In addition, the PRO-IP Act seeks to modernize and
improve U.S. government efforts for coordination and enforcement of our
nation's IP laws.
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The knowledge and innovation of American citizens contributes
significantly to the economic strength of our nation. Intellectual
property law provides the principal incentives that are calculated to
lead to the creation and production of new works. This bill is needed
because the effect of piracy and counterfeiting on the economy is
devastating. Total global losses to United States companies from
counterfeiting and copyright piracy amount to $250 billion per year.
Every company in every industry is vulnerable.
Because these illegal activities represent a growing public health,
safety and law enforcement problem, H.R. 4279 provides additional
targeted resources for investigation, enforcement and prosecution;
requires the development and promulgation of a national Joint Strategic
Plan to combat counterfeiting and piracy; and provides for enhanced
Presidential level leadership and coordination among federal agencies
involved with preserving and protecting intellectual property rights.
Title I of H.R. 4279 provides enhancements to civil intellectual
property laws. Specifically, Title I makes it clear that a certificate
of registration will satisfy registration requirements regardless of
whether there is any inaccurate information on the registration
application, unless the inaccurate information was included with
knowledge that it was inaccurate.
Title I also broadens the civil remedies for infringement by
broadening the scope of articles that may be ordered impounded by the
court upon a finding that the article was made or used in violation of
a copyright. This Title also directs the court to enter a protective
order to ensure that confidential information is not improperly
disclosed.
Title II provides enhancements to criminal intellectual property laws
by addressing repeat offender penalties for criminal acts contained
within the criminal copyright statute. Title II clarifies that a repeat
offender is a person that commits the same criminal act twice. The bill
clarifies that any property subject to forfeiture must be owned or
predominantly controlled by the violator in order to be seized and
directs the United States Sentencing Commission to consider whether the
sentencing guidelines should be expanded to include the export of
infringing items. There are enhanced maximum statutory penalties for
counterfeit offenses that endanger public health and safety.
Title III of H.R. 4279 provides greater coordination and strategic
planning of federal efforts against counterfeiting and piracy.
Specifically, this Title establishes within the Executive Office of the
President, the Office of the United States Intellectual Property
Enforcement Representative and, within that Office, the United
States Intellectual Property Enforcement Representative, appointed by
the President of the United States. Lastly, Titles IV and V provide
international, national, and local enforcement.
The bill has several important enforcement provisions that are worthy
to discuss. First, it places a 45-day time limit on the Register of
Copyrights' response to a court. Second, it strikes the section
allowing for multiple statutory damages for compilation infringement.
Third, it clarifies that there must be a substantial nexus between the
property and the crime to institute civil forfeiture proceedings.
Lastly, it removes the requirements for Federal Bureau of Investigation
agents to receive IP related crime training.
While I support the bill, I would have liked to consider ways to
ensure diversity in the Computer Hacking and Intellectual Property
(CHIPs) units that are established by this bill. I would have liked to
work to ensure that minorities be represented in hiring and that
special recruitment initiatives be launched at historically black
colleges and universities and other minority serving institutions. We
should do all within our efforts to guarantee that minorities receive
the necessary training and be recruited to help in the IP enforcement
at the Executive, State, and local levels.
Mr. Speaker, H.R. 4279 is a first step toward the promotion of the
American economy. It ensures that American innovation will remain
crucial to the United States economy and that American innovation will
allow the United States to remain a global economic power. Indeed, this
bill ensures that the United States IP laws are enforced and that the
American intellectual property system remains one of the best in the
world.
Mr. Speaker, I urge all members to support this much needed and
thoughtful legislation.
Ms. ZOE LOFGREN of California. Mr. Speaker, I rise in opposition to
H.R. 4279.
While this administration can and should do more to protect
intellectual property rights, I do not think that the answer lies in
this bill's creation of new forfeiture provisions, a new ``IP Czar,''
or a new IP-only division within the Department of Justice.
In recent civil actions pursued by some within the content industry,
we have seen unduly aggressive tactics that occasionally target
innocent individuals. I am concerned that given the bill's thrust
toward more aggressive enforcement of copyright infringement, enhanced
forfeiture provisions similarly may sweep up wholly innocent students,
parents, and consumers in larger enforcement actions.
I regret that more was not done to strike the appropriate balance
between protecting copyright owners from those who unlawfully benefit
from infringement and ensuring that we do not inadvertently punish
innocent bystanders.
I also have concerns with Title III's creation of a new office of the
U.S. IP Enforcement Representative. I appreciate the work that has been
done to refine the scope of Title III. Nonetheless, Title III still
creates a position that is a coequal of the U.S. Trade Representative
in the Department of Commerce. There is a strong possibility that the
USTR and the ``IP Czar'' will come to conflicting policy decisions in
matters affecting both IP enforcement and international trade.
The bill offers little guidance with respect to how those conflicts
will be resolved. Nor does it contain adequate safeguards to ensure
that the IP Czar does not target legitimate innovation out of
overstated concerns about contributory infringement.
Finally, I share the authors' frustration with this administration's
failure to engage in a more constructive dialogue about how best to
focus the DOJ's resources on IP enforcement without harming and
disrupting equally important law enforcement priorities. Nonetheless,
that potential harm and disruption cannot be ignored and has not been
addressed adequately.
I share the goals of the authors of this legislation but not the
means by which they sought to achieve them. I thank the authors for
their work to improve this bill, but regret that it was not improved
further.
Mr. SMITH of Texas. I yield back the balance of my time.
Mr. CONYERS. Mr. Speaker, I follow suit and yield back any time
remaining on this side.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Michigan (Mr. Conyers) that the House suspend the rules
and pass the bill, H.R. 4279, as amended.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds
being in the affirmative, the ayes have it.
Mr. FRELINGHUYSEN. Mr. Speaker, I object to the vote on the ground
that a quorum is not present and make the point of order that a quorum
is not present.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
The point of no quorum is considered withdrawn.
____________________