American intellectual property hegemony

2

AMERICAN INTELLECTUAL PROPERTY HEGEMONY

Because there actually is a kind of tribe, a community of interest, united by a shared passion in attacking copyright. They are in spirit the impossible fusion of the tribe of boys in The Lord of the Flies, the extras in a Mel Gibson post-nuclear-holocaust movie, and the American Library Association. Their wildness has been denatured into a crusade against copyright, their audacity lies in button-pushing, and their chief barbarism is the use of intemperate language behind a shield of anonymity on the internet. They are sprinkled like confectioners’ sugar over all the United States, although no doubt more than 99 percent of them reside within an iPod’s throw of a Starbucks.¹

In 2012, the Republican Study Committee (RSC) posted a policy brief on their website titled “The Three Myths of Copyright.” Authored by RSC 24-year old staff member Derek Khanna, the brief made three arguments about copyright that it can be assumed its author thought were consistent with the conservative commitment to free markets and a strict constructionist reading of the constitution. The three “myths” were first, that the constitutional provision creating copyright was designed to compensate the creator. Instead, Khanna argued, the constitution is designed to promote progress in the arts and sciences and there is no assumption about compensation written into its meaning. Second, is the myth that copyright protection is free market capitalism, when, as Khanna points out, it is in reality a government monopoly and thus antithetical to the free market and the conservative goal of eliminating government interference in the market. Third, he argued that the claim that the current copyright system leads to innovation is a myth because the length of time has gone well beyond that originally proposed by the founders and does not support but hinders innovation.² Khanna’s position, grounded in what he thought would be a constitutionally conservative viewpoint, goes on to recommend policy changes to bring copyright law back into line with its original constitutional mandate.

Khanna’s brief reflects claims made in the scholarly literature about the efficacy of a copyright policy that is so broad and overreaching. However, as a political agenda, the brief stakes out a new move in the language games³ surrounding copyright expansion.⁴ The briefing, offered by the RSC, stands out as an effort to distinguish between Republican and Democratic approaches to copyright. Such a contrast is difficult to make given that the prevailing U.S. intellectual property agenda has consistently advocated for more protection and longer terms regardless of political party over the last 30 years. As the Democratic and Republican platforms for the 2012 presidential election demonstrate, the parties are in a race to claim they protect intellectual property more strongly than their opponents, not to profess a nuanced or a complex understanding of the impact of copyright on innovation and creative work.⁵

Unfortunately for Khanna, the politics of copyright do not follow ideological lines. In the language games surrounding the policy brief, which threatened the intellectual property maximalist position of the entertainment industry (including the agenda of former Senator turned Motion Picture Association of America (MPAA) lobbyist Christopher Dodd) and thus politicians who receive contributions from them, Khanna’s briefing was disavowed. Within a day of its release, and after a strong reaction from conservative officeholders, the report was pulled from the website, the RSC chair publicly apologized for not fully examining the report prior to its distribution, and Khanna was fired for publishing it.⁶

Khanna did not disappear from the fight, but continues to play the game. As a young conservative just embarking on his political career, he has now emerged as a policy-oriented copyright reform advocate who remains committed to challenging the IP status quo.⁷ From a new position outside the beltway, he continues to advocate for change to the copyright law and remains in a position to make copyright into a much more partisan issue than it has been to this date. Despite being taken down by the RSC from its website, the brief can still be found on the internet and Khanna has perhaps a larger platform for his views now than he did while working at the RSC. The RSC brief, the political reaction to it, and the general public response, suggests that perhaps there are growing cracks in what has been a consistent American approach to intellectual property over the past few decades.

Despite the possibility of cracks in the copyright maximalist system, Khanna’s personal experience demonstrates that, as an issue of public policy, intellectual property tends to enjoy a level of bipartisan support rare amongst political issues. The assumed starting point for politicians is that all forms of intellectual property are good and that the government’s role is to increase regulation of these property rights until the threat posed by those who “steal” intellectual property is alleviated. Public officials over the past 30 years have almost always configured policy arguments to justify increased copyright protection. As part of the justification, the threat of piracy has been elevated to a national security issue.⁸ The end result has been a field of struggle between competing intellectual property interests over the structure and scope of future legal measures. While intellectual property maximalists (or optimists as Goldstein calls them) tend to believe that the government has not gone far enough, intellectual property reductionists (or pessimists) believe it has gone too far.⁹

Today’s debates demonstrate that the expansion and protection of intellectual property is central to the role of the state in the information age. Even as potential fissures appear, we have witnessed a reconfiguration of government bureaucracies with intellectual property in mind, as new positions are created, enforcement units deployed, and rules promulgated. The state is one of the strongest advocates for intellectual property protection, and state officials consider a protective approach essential to a growing economy and national security. The stakes are the degree to which intellectual property will frame the future of our cultural creativity, economic assets and productivity. The information age has enhanced the levels of abstraction of property and hence established a new cross-cutting line of control by the state over the productive classes.¹⁰ The struggle being waged in today’s debates is one that will determine how the apparatus of state control over creativity, innovation, and our information future evolves.

According to McKenzie Wark, we have embarked upon a new layer of class formation where the production of intellectual property is the subject of acquisition. He notes:

The recognition of intellectual property as a form of property—itself an abstraction, a legal hack—creates a class of intellectual property creators. But this class still labors for the benefit of another class, to whose interests its own interests are subordinated. As the abstraction of private property is extended to information, it produces the hacker class as a class, as a class able to make of its innovations in abstraction a form of property. Unlike farmers and workers, hackers have not—yet—been dispossessed of their property rights entirely, but still must sell their capacity for abstraction to a class that owns the means of production, the vectoralist class—the emergent ruling class of our time.¹¹

Wark offers a crucial insight into the ongoing efforts on the part of the state to reconfigure the rules of intellectual property for the information age. Power over knowledge is with those whom Wark calls the vectoralist class—“the emergent ruling class of our time.” The vectoralist class are those who control the new layers of property as abstraction—intellectual property.¹²

On the other side of the intellectual property legal divide from the vectoralist class who seek to monopolize the products of the information age as property, are those who create and do so without thinking about copyright: These are the people Wark calls the “hacker class,” artists, scientists, computer programmers, musicians, who create new things.¹³ For Wark, this is a new class war at a new level of abstraction. The instability experienced by those who follow intellectual property issues is the result:

The vectoralist class wages an intensive struggle to dispossess hackers of their intellectual property: Patents and copyrights all end up in the hands, not of their creators, but of a vectoralist class that owns the means of realizing the value of these abstractions.¹⁴

Certainly, the growing monopolization of intellectual property discussed in the Introduction, the shaping of the American bureaucracy to better control and manage intellectual property, the heightened criminality associated with the theft of intellectual property, and the ways in which the American agenda has been exported globally all speak to the underlying changes that Wark has identified.

The index of the relationship of the vectoral class to state power is the trans-formation of the laws governing vectors, such as the airwaves and networks, and regulating patents, copyrights and trademarks. When thought itself and the air itself have been subordinated to their representation as property, the vectoral class is in charge.¹⁵

Everything within this world of the vector, supported and secured by the state, is a commodity.¹⁶

The argument of this chapter is that the state itself is being reconfigured to assure protection over intellectual property as central to its future mission. That reconfi-guration is in part a reaction and response to the globalization of economic relations as the state attempts “to be proactive in order to steer globalizing processes.”¹⁷ The struggle being waged is one that will determine how the apparatus of the state will control creativity, innovation, and our information future. The efforts of the vectoralist class, often speaking through the state, to enhance intellectual property rights are positioned within the ongoing debates over intellectual property. U.S. government publications and statements by public officials from the American president down across the last 30 years offer only a small hint that a critical debate regarding the scope, length, and depth of all types of intellectual property has been underway, or that there is a possible alternative to the intellectual property maximalist frame of reference. Instead, enormous effort has been put into producing a system that will continue to expand the length of protection, the scope of protection, and the consequences for violating the law.

I will trace the primary arguments made in the United States by those who advocate for a stronger intellectual property system or see the current system as absolutely necessary for innovation and progress. There are several themes used to argue for continued or strengthened intellectual property laws. Each serves a function as the state develops the “technologies of power” that are endlessly modified to produce a managed population for the information age.¹⁸ The sections in this chapter describe the reconfiguration of the American political system to focus on issues of intellectual property as fundamental to our economic security. This chapter focuses upon the U.S. political system because it is a leader in the intellectual property maximalist game, but similar trajectories have become part of the nation-state mandate since the TRIPS agreement established a minimum level of protection for all nations.

For the good of the country: restructuring the American government to protect intellectual property

On March 11, 2010 the White House published the remarks by President Barack Obama at the Export-Import Bank’s Annual Conference on their website. The President was talking at the conference about general economic issues and his plans for helping the economy by facilitating international trade and travel. Key, it turns out, to this international agenda, is the issue of intellectual property. Obama had this to say about intellectual property and its importance to the United States:

What’s more, we’re going to aggressively protect our intellectual property. Our single greatest asset is the innovation and the ingenuity and creativity of the American people. It is essential to our prosperity and it will only become more so in this century. But it’s only a competitive advantage if our companies know that someone else can’t just steal that idea and duplicate it with cheaper inputs and labor. There’s nothing wrong with other people using our technologies, we welcome it—we just want to make sure that it’s licensed, and that American businesses are getting paid appropriately. That’s why USTR [Office of the United States Trade Representative] is using the full arsenal of tools available to crack down on practices that blatantly harm our businesses, and that includes negotiating proper protections and enforcing our existing agreements, and moving forward on new agreements, including the proposed Anti-Counterfeiting Trade Agreement.¹⁹

Obama’s speech indicated that he would continue on the path set before him by his predecessors. This quote is also on the Office of the U.S. Intellectual Property Enforcement Coordinator’s website as one of the important quotes by President Obama regarding intellectual property.²⁰ After winning the 2012 election, the MPAA praised President Obama for his strong approach to intellectual property and, true to form, Obama has continued to support an IP agenda favorable to content owners.²¹

In a January 2013 fireside chat hosted by Google, Obama reasserted his pro-IP stance:

“I’m an ardent believer that what’s powerful about the internet is its openness and its capacity for people to get out there and introduce a new idea with low barriers to entry,” he said. “We also want to make sure that people’s intellectual property is protected and whether it’s how we’re dealing with copyright, how we’re dealing with patents, how we’re dealing with piracy issues. What we’ve tried to do is be an honest broker between the various stakeholders and to continue to refine it, hopefully keeping up with the technology, which doesn’t mean that there arenₑt occasionally going to be some problems that we still haven’t identified and have to keep on working on.”²²

The language used by Obama is not new—the American people are creative, our economic well being comes from intellectual property, those who “steal” our intellectual property harm our country, we will do everything possible to protect our IP, and we will provide for enhanced regulatory structures with new laws. These same themes were present 24 years earlier, when President Ronald Reagan made a radio speech to the nation on free and fair trade in which he also discussed issues of international trade and intellectual property. In Reagan’s words:

Our country is also victimized by the international theft of American creativity. Too many countries turn a blind eye when their citizens violate patent and copyright laws designed to protect intellectual property rights. If we permit the product of our best minds to be stolen, we will pay the price in ingenuity, vision, and creativity—the core of all human progress. Here again, we expect tangible changes to be made to straighten this matter out.²³

The difference in the language used by Obama and Reagan when it comes to how intellectual property should be protected is insignificant. Obama’s concession that we would let others use our ideas if appropriately licensed is simply a more modern framing of the same issue and the one sentence indicating that Obama is aware of the popularity of the open source movement, the creative commons, the GPL, and numerous other efforts to provide alternatives to intellectual property. However, while Obama has pledged to make federally funded research more easily available, there has been only minimal movement towards these open systems, with much of Obama’s approach being rhetorical.²⁴

George Herbert Walker Bush was also concerned with issues of intellectual property and trade and he made numerous statements about strengthening IP through the GATT, including the precursors to what became the Trade Related Aspects of Intellectual Property Agreement.²⁵ Bill Clinton was not out of step with his predecessors either; along with continuing the negotiation over GATT and ultimately TRIPS, Clinton encouraged Congress to pass the Digital Millennium Copyright Act (DMCA) which included international obligations under World Intellectual Property Organization Treaties. In his remarks to Congress regarding the passage of the DMCA he said:

American copyright-based industries that produce and promote creative and high-technology products contribute more than $60 billion annually to the balance of U.S. trade. This bill will extend intellectual protection into the digital era while preserving fair use and limiting infringement liability for providers of basic communication services. I look forward to signing this legislation into law, and I urge the Senate to ratify these treaties so that America can continue to lead the world in the information age.²⁶

In a 1999 speech, Clinton helped justify the need for intellectual property protection by commenting on the American spirit and its constant quest for creativity and innovation. For Clinton:

[T]he American people have always been a bold and innovative bunch. We are always drawn to uncharted lands over the next horizon. Who will pack our bags and head out to the latest gold rush or tinker in our basements for years to invent a product no one else has ever imagined? That’s what we do.²⁷

Clinton’s vision of the American innovator as the isolated individual and the pioneering leader is wholly consistent with the larger American myth of our underlying creativity as a nation—this is nation-building, a tactic employed by all presidents to help paint the American innovative spirit as exceptional and innate in our heritage.

Under the Clinton Administration, and based upon these general assertions of American innovation and the creative spirit, we witnessed a dramatic increase in the scope, duration and depth of intellectual property coverage. Clinton’s Administration helped to create a new generation of criminals by outlawing and criminalizing file sharing with the No Electronic Theft Act, it created liability for service providers who did not comply with the notice and take down procedures included as a concession to service providers in the DMCA, and extended the length of copyright protection, including retroactive protection for those who had already died, with the Sonny Bono Copyright Term Extension Act. While the general trajectory for U.S. IP law has always been expansive, it was the Clinton years, by definition, when the regulatory apparatus that constitutes our modern IP world went from theory into being.

Counterfeiting costs our country hundreds of billion dollars a year. It has got a lot of harmful effects in our economy. Counterfeiting hurts businesses. They lose the right to profit from their innovation. Counterfeiting hurts workers because counterfeiting undercuts honest competition, rewards illegal competitors. Counterfeiting hurts our—counterfeiting hurts consumers because fake products expose our people to serious health and safety risks. Counterfeiting hurts the Government. We lose out on tax revenue. We have to use our resources for law—of law enforcement to stop counterfeiting. Counterfeiting hurts national security because terrorist networks use counterfeit sales to, sometimes, finance their operations.²⁸

The President claiming a link between terrorism and counterfeit goods is significant and I will return to the link between terrorism and counterfeiting in the next chapter because the issue of piracy, either discussed or implied by all presidents, is a key part of the maximalist justification.

Despite the ideological differences claimed to exist between Democratic and Republican presidents, the underlying discourse on intellectual property has remained remarkably steady. The comments regarding intellectual property seem to have come from the same script—a script that includes the following claims. First, that America’s biggest strength is its innovation and creativity. Second, that countries outside the United States profit by stealing our ideas and this hurts us economically. Third, that it is the government’s job to establish strong rules that will protect American intellectual property abroad. Finally, that the theft of intellectual property has negative consequences not only for our economic bottom line but for public health through the distribution of counterfeit goods, with the ultimate result that terrorists and criminals profit at the expense of hard-working innovative Americans.

The standard rhetorical approach to intellectual property by our most prominent elected leaders is anything but nuanced. These public pronouncements gloss over distinctions between different IP regimes. In the process, these presidential statements function to create something called “intellectual property” that must be protected from “theft.” They do not suggest any distinction exists between copyrights, patents, trademarks, or other sui generis forms of protection, but instead lump all these different agreements under a “property in ideas” rubric. In fact, even after decades of attention paid to this area of law, it would seem that the distinction between patent, copyright, and trademark law remains as it did in 1970 when Alan Latman said that, “most people do not understand the differences between patents, trademarks, and copyrights. This applies to clients, other lawyers, and at times even judges.”²⁹ In fact, calling the limited monopolies associated with most forms of intellectual property a form of “property” at all implies a more permanent relationship to the intangible than what might otherwise exist if we were to use the language of limited monopolies. In many ways, the overwhelming success of the term “intellectual property” has already defined the boundaries for the future.

These presidential statements ignore the possibility that too much intellectual property protection might harm innovation as much as too little. The statements are unreflective about how innovation actually occurs, but instead reproduce the myth that America’s best innovative work has happened because of the creative genius of an individual “working in his basement.” These statements do not reflect the complicated process of creation and innovation, they do not talk about patent or copyright trolls (though Obama has noticed the existence of trolls) and their predatory practices, they do not talk about access to life-saving medicines at significantly lower costs, they do not discuss the ways in which Web 2.0 technologies have changed creation and distribution of creative work and the very people who do it. In other words, these statements produce a problem that is easy to solve with more restrictive legislation and enforcement. In the process of making policy, the United States establishes a hegemonic discourse on intellectual property that has not waivered over time. It has done so despite decades of scholarship pointing out the flaws in the logic, including the fact that the United States does not dominate the ownership of IP globally as cited in the previous chapter, the policy process, the clear ways in which the law singles out beneficiaries at the expense of the general public, the global South, and new innovation itself.

Reconfiguring bureaucracy

In tandem with the enhancement of domestic and international laws regarding all forms of “intellectual property,” the U.S. government has reconfigured its bureaucracy to help fight piracy and further protect intellectual property. In 1999 President Clinton made the United States Patent and Trademark Office (USPTO) an agency within the Department of Commerce and established an Under Secretary of Commerce for Intellectual Property who also serves as Director of the USPTO.³⁰ Obama nominated David Kappos, former counsel for IBM, to serve as the Under Secretary of Commerce for IP. Prior to Kappos, Bruce Lehman headed the USPTO and was an instrumental voice in the creation of the Digital Millennium Copyright Act as well as a strong advocate for enhanced IP rights.³¹

Numerous agencies within the federal bureaucracy now have intellectual property-related subdivisions. According to a resource list compiled by the Department of State, they include the USTR, the Department of Justice, the Department of State, the U.S. Library of Congress, the Office of Management and Budget, the White House, and others. The USTR continues to issue a Special 301 report yearly, which puts offending countries on a priority watch list or a watch list depending upon how significant the piracy in that country is and how they have worked to address it. Countries that do not sufficiently protect IP can also be considered priority foreign countries. The Department of Commerce includes the International Trade Administration which helps oversee the Special 301 process as well as issues related to the TRIPS agreement. It also hosts the relatively new Strategy Targeting Organized Piracy (STOP) initiative designed to help businesses protect their intellectual property via the United States Patent and Trademark Office (USPTO).³²

The U.S. Department of Justice now includes a Computer Crime and Intellectual Property Section, the U.S. Department of State has an Office of International Intellectual Property Enforcement, there is a collaborative International Intellectual Property Training Database sponsored by the Department of State, and the U.S. Immigration and Customs Enforcement division includes the National Intellectual Property Rights Coordination Center, which is a multi-agency entity including the FBI that focuses on IPR crime.³³ Thus, it is safe to say that considerable public resources are now focused on the protection of intellectual property domestically and internationally. There is of course the U.S. Copyright Office, hosted by the U.S. Library of Congress.

One of the most recent expansions in the scope of protection for intellectual property, passed with bipartisan support in both houses, along with support from a broad range of special interests from Hollywood to unions, was the Prioritizing Resources and Organization of Intellectual Property Act (PRO-IP).³⁴ George W. Bush signed the act, formerly known as the Enforcement of Intellectual Property Rights Act, into law in October of 2008. Beginning in 2008 as a result of the PRO-IP Act, the newly created intellectual property tsar, also known as the U.S. Intellectual Property Enforcement Coordinator, began to develop a more comprehensive approach to IP. Chris Israel was the first appointee; a former Time-Warner public policy executive, Israel had worked for Bush in the Commerce Department before taking on the duties of the first U.S. Coordinator for International Intellectual Property Enforcement. He then went on to work for several pro-IP lobbying firms.³⁵ The law also increased the civil penalties for copyright, patent, and trademark infringement and established an executive branch agency to oversee IP enforcement. Obama became the first president to appoint the official intellectual property “tsar,” who worked directly with the White House: Victoria A. Espinel.

As the first intellectual property “tsar,” echoing the language of the drug wars, Espinel’s initial statements about the new agency and its direction adhered to the already well established government policy regarding intellectual property. In 2010, Espinel announced the new U.S. IP Enforcement Strategy:

I am pleased to announce that today we unveiled the administration’s first Joint Strategic Plan to combat intellectual property theft. The U.S. economy leads the world in innovation and creativity thanks to American inventors, artists and workers. Our ability to develop new technology, designs and artistic works supports jobs and allows us to export great new products and services around the world. Our citizens need to feel confident that they can invest in new innovation and intellectual property, knowing it will be safe from theft. Ensuring that our ideas and ingenuity are protected helps us create jobs and increase our exports.³⁶

She goes on to say:

Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that. The Obama Administration has always embraced the free flow of information, online collaboration, and fair use by average citizens, which are also helping to advance our society and economy every day—this strategy does not target legitimate and legal activity. The Administration is technology-neutral, using both proprietary and open source platforms on the web and all content on WhiteHouse.gov is public domain, making it an active participant in the online communities of the 21st Century.³⁷

While this generally supports the maximalist position that U.S. policy requires the strictest of enforcement measures for piracy and gives assurances that this type of property will be protected globally, it is also worth noting the small concession to the concept of the public domain and to open source platforms, along with the hint that net-neutrality might be a considered option for this administration. Perhaps the first fissure in the long-standing policy approach can be seen in her statements. However, there is little evidence that the Obama Administration will act significantly differently than its predecessor over these issues, especially given the Democratic and Republican platforms. In fact Espinel has now stepped down as the Enforcement Co-ordinator to take a job as the head of the Business Software Alliance (BSA), a top lobbying organization for the software industry. Ethics restrictions will keep her from directly lobbying her former office for at least 2 years.³⁸

There is evidence that Obama’s Administration will continue down the path of greater enforcement. The strategic plan issued by the White House on IP legislative recommendations in March of 2011 focuses exclusively on increasing punishment for IP crimes, including longer sentences, as well as increasing law enforcement flexibility to catch IP criminals. They specifically identify “infringement by streaming” as a possible felony and make more targeted recommendations regarding counterfeit goods.³⁹ In response to the White Paper, the president and CEO of the Computer & Communications Industry Association (CCIA), Ed Black, issued a statement asserting that the administration had been “hijacked” by “big content”:

The legitimate desire to address some serious counterfeiting abuses—such as medications or industrial components used in defense products—has been hijacked to create draconian proposals to alleviate the content industry of the burden of protecting its own interest using its own extensive resources …. This is the latest indication of the extent to which the content industry has infiltrated this administration and managed to turn the Administration’s IP agenda into a policy which protects old business models at the expense of consumers, citizens’ rights and our most innovative job creating industries.⁴⁰

The CCIA response to the Obama plan is telling on several fronts. First, it helps to identify the consistency in the efforts of government to expand IP protection. Second, it also begins to highlight the fissures between different copyright-based industries. The case can hardly be made that computer-related industry associations are not interested in copyright legislation. However, what the CCIA suggests is that there is a growing recognition on the part of some that government regulation to protect “old business models” will increasingly put the administration at odds with their own citizens.

Obama’s overarching strategy, however, seems to remain very much in favor of additional IP enforcement. Obama’s United States Trade Representative Ron Kirk was part of the launch of the IP Enforcement Strategy in 2010 and discussed his office’s efforts to make the world safe for American IP. In a press release Ambassador Kirk said:

USTR uses a full arsenal of trade policy tools to support and implement President Obama’s commitment to aggressively protect American intellectual property rights around the world. We are actively engaged in bilateral and multilateral trade negotiations, dialogues, and cooperation that are particularly critical to advancing the effective enforcement and protection of intellectual property rights overseas. That engagement is backed by a strong commitment to ensuring that our trading partners deliver on their commitments.⁴¹

In 2011 Obama issued an executive order to establish an intellectual property advisory committee at the cabinet level. As the announcement of the executive order notes, the committee will be, “comprised of the heads of the Departments responsible for intellectual property enforcement, including the Departments of Justice, Homeland Security, Commerce, Health and Human Services, State, Treasury, Agriculture and USTR.”⁴² Their job will be to ensure that American intellectual property is protected domestically and internationally to support American innovation. It would appear that intellectual property has become central to the future stated economic well-being of the United States and advocates for its protection and enforcement are fully entrenched in the American institutional structure.

As can be seen by these public statements and commentaries, the predominant approach to intellectual property enforcement remains focused on securing rights for business interests in foreign and domestic markets. The analysis in these sections has focused predominantly upon the rhetoric delivered from the president’s office as well as the reconfiguring of the vast American bureaucracy to better address issues of intellectual property as relevant to our domestic, foreign, and economic policies. It is also worth examining the Congressional approach to issues of intellectual property.

Congressional advocacy

Congressional perceptions on intellectual property are similar to presidential claims and, taken together, mark a transformation in how government approaches issues of intellectual property. While earlier generations saw the enforcement of IP as primarily a private issue, sometimes subject to civil litigation, it has become a public issue, subject to possible criminal penalties including vast federal oversight. The efforts by the U.S. government to become relevant in the management and protection of intellectual property, including creating a legal structure that goes beyond the initial provision of a limited monopoly, helps clarify how significant the change in focus has been.

While, in 1985, the chair of the House Judiciary Committee’s subcommittee on copyright, patent, and trademark law, Robert W. Kastenmeier, requested that changes in IP law should be accompanied by evidence that the public benefit would outweigh private benefit, according to Paul Goldstein, no such claim had ever been made before, or since.⁴³ All told, the United States has passed over 25 laws expanding some aspect of intellectual property protection since 1995, including the most recent Enforcement of Intellectual Property Rights Act, which passed in 2008 and established the first ever copyright “tsar” for the United States discussed in the previous section.⁴⁴ Furthermore, being considered for the 111th Congress are a series of laws that would expand protection to fashion design, the Innovative Design Protection and Prevention of Piracy Act, and the Combating Online Infringements and Counterfeits Act.⁴⁵ President Obama signed the America Invents Act into law in 2011, which revises patent law for the first time since 1952.⁴⁶

While it is impossible to cover the full scope of IP-related issues that have made their way through Congress in this section, I would like to use one example to illu-minate how a narrative of strong protection is part of the legislative process. In terms of political moves, advocates for stronger protection tirelessly introduce legislation session after session, the language of strong IP protection is part of the Congressional debates, and, with only a few outliers, both Democrats and Republications support the national intellectual property agenda.

While it may take time for the measures introduced to become law, the fact that IP laws continue to expand indicates that the Congressional default position is strong and expansive intellectual property rights protection. With the exception of the proposed Orphan Works legislation, which would allow individuals to use copyrighted materials for works where the copyright owner cannot be located, legislation introduced to Congress in the last decade has been focused on enhancing intellectual property rights. One example of legislation aimed at shoring up strong copyright protection against efforts by administrative agencies to help expand access to knowledge is the Fair Copyright in Research Works Act, which more recently has become the Research Works Act.

In 2007, George W. Bush signed into law the Omnibus Spending Bill, which included a provision that mandated that the National Institutes of Health (NIH) make research funded through their agency available in an open access format.⁴⁷ The NIH open access policy gave private publishers a year to publish exclusively and profit from publicly funded research before the papers produced from the research had to be made available publicly by placing them in the PubMed Central database. Thus, scholars, professionals, and others who needed the most contemporary information would still be required to purchase journals at a rate set by the publishers. However, after the initial year, research funded by taxpayers, especially research related to health issues, should be made as openly available as possible.

The NIH policy was not the first of its kind. In 1965, the U.S. Office of Education (OE) made a similar policy when it published the following statement in the Federal Register: