In 2008, Congress passed the Prioritizing Resources and Organization of Intellectual Property Act of 2008 (“PRO IP Act”) for the “critical” purpose of “improving IP enforcement both domestically and internationally.” Among other changes, the PRO IP Act created the position of Intellectual Property Enforcement Coordinator (“IPEC”) within the Executive Office of the President.
The IPEC is directed to coordinate enforcement efforts with an advisory committee made up of delegates from different federal agencies and to act as a principal advisor to the President on IP enforcement issues. Each year, IPEC issues an annual intellectual property report to Congress detailing the activities of the advisory committee during the preceding fiscal year.
In addition to submission of an annual report to Congress, the IPEC is tasked with coordinating with the advisory committee the development and implementation of a Joint Strategic Plan (“JSP”) against counterfeiting and infringement. Envisioned as the “framework for coordinating and assessing Federal efforts to combat piracy,” the JSP is released every three years.
The JSP’s objectives include reducing the number of infringing goods, identifying and addressing weaknesses in IP enforcement, ensuring that relevant information is shared among government agencies, disrupting and eliminating infringement networks, and protecting IP rights overseas through information sharing and enforcement coordination with other countries.
Related to the JSP’s objectives, the IPEC has encouraged various “cooperative efforts within the business community to reduce Internet piracy,” and to “address repeated acts of infringement.” Accordingly, the JSP directs federal agencies to conduct benchmark studies on initiatives currently in place and to consider future multi-stakeholder engagement.
The JSP also addresses measures that search engines, social media sites, and mobile applications can take, and recommends the use of multi-stakeholder processes to develop industry standards and best practices in each area.
Comments submitted in response to the development of the next JSP have addressed similar topics, including the use of technology to address online piracy and the challenges faced by creators to license content to large internet platforms.
The Department of Commerce launched the Internet Policy Task Force (“IPTF”) in 2010 to identify public policy and operational challenges impacting the digital economy. In 2013, following a public process involving a series of stakeholder listening sessions and the receipt of written comments, the IPTF published Copyright Policy, Creativity, and Innovation in the Digital Economy (“Green Paper”).
Discussing challenges with online copyright enforcement, the Green Paper concluded that some gaps and shortcomings in existing legal tools “may require legislative solutions,” but that “voluntary initiatives are an important component.” The Green Paper identified the notice-and-takedown system as an issue that warranted further IPTF study and called for a multi-stakeholder forum to identify best practices for improving its operation.
The IPTF’s multi-stakeholder forum took place in 2014 and consisted of a series of meetings throughout the country, as well as smaller working and drafting groups. In April 2015, the IPTF issued a document developed by forum participants entitled DMCA Notice-and-Takedown Processes: List of Good, Bad and Situational Practices.
It provides a “set of agreed upon practices” aimed at “improving the efficiency of the handling and processing of DMCA notices by both senders and recipients.” These practices consist of common-sense guidelines aimed at both OSPs and rightsholders, such as OSPs making notice and counter-notice instructions easily located and understandable, and rightsholders establishing automated search parameters so that flagging non-infringing content is minimized.