Interesting recommendations from the U.S. Intellectual Property Czar… read below.
Today, the Administration issued 20 legislative recommendations to Congress, designed to improve intellectual property enforcement and to ensure that American workers and businesses are protected. Among those changes, we are seeking significantly increased criminal penalties for those selling counterfeits to our military, when counterfeiting and piracy is funding organized criminal activity, for those selling products that can harm or kill American consumers and for those stealing American innovation and transferring it overseas. We are also seeking changes to ensure that our laws can address technological changes, such as illegal streaming, and that law enforcement can share information effectively with businesses.
In this White Paper, we are seeking six legislative changes to fight counterfeit drugs, including increased criminal penalties for counterfeit drug offenses, particularly those that risk death or serious bodily injury. So that you know the full extent of what we have proposed, I have simultaneously made our legislative proposals available on our website: http://www.whitehouse.gov/omb/intellectualproperty/.
I have also summarized below the specific proposals:
First, we recommend increasing the maximum sentence for (1) economic espionage from 15 years in prison to at least 20 years in prison; and (2) drug offenses under the Federal Food, Drug and Cosmetic Act (FFDCA), particularly for counterfeit drug offenses.
Second, we recommend that Congress: (1) direct the U.S. Sentencing Commission to increase the sentencing guideline range for intellectual property offenses; (2) require the Commission to consider five specific categories of changes to the guidelines; and (3) require the Commission to act within 180 days of such legislation being adopted. The five categories of recommendations are:
1) Increase the guideline range for the theft of trade secrets and economic espionage, including trade secrets transferred or attempted to be transferred outside of the U.S.;
2) Increase the guideline range when infringing products are knowingly sold for use in national defense, national security, critical infrastructure, or by law enforcement.
3) Increase the guideline range for intellectual property offenses committed by organized criminal enterprises;
4) Increase the guideline range for intellectual property offenses that risk death or serious bodily injury and for those offense involving counterfeit drugs (even when those offenses do not present that risk); and
5) Increase the guideline range for repeat intellectual property offenders.
Third, we recommend the following legislative changes to give enforcement agencies the tools they need to combat infringement:
1) Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;
2) Authorize DHS to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; and
3) Give law enforcement wiretap authority for criminal copyright and trademark offenses.
Fourth, we recommend the following legislative changes to allow DHS to share information about enforcement activities with rightholders:
1) Give DHS authority to notify rightholders that infringing goods have been excluded or seized; and
2) Give DHS authority to share information about, and samples of, circumvention devices with rightholders post-seizure.
Fifth, we recommend the following legislative changes to improve U.S. efforts to fight illegal drugs, particularly counterfeit drugs:
1) Require importers and manufacturers to notify the FDA and other relevant agencies when they discover counterfeit drugs;
2) Extend the Ryan Haight Act’s definition of “valid prescription” to drugs that do not contain controlled substances;
3) Adopt a track-and-trace system for pharmaceuticals and related products;
4) Provide civil and criminal forfeiture under the FFDCA, particularly for counterfeit drug offenses;
5) As noted above, increase the statutory maximum for drug offenses under the FFDCA, particularly for counterfeit drug offenses; and
6) As noted above, recommend that the Commission increase the guideline range for intellectual property offenses that risk death and serious bodily injury, and for those offenses involving counterfeit drugs (even when those offenses do not present that risk).
Sixth, we recommend the following legislative changes to CBP’s administrative penalties:
1) Permit relief when someone who unknowingly and unintentionally acquires infringing products voluntarily discloses them to CBP before becoming aware of any enforcement action or investigation;
2) Give CBP authority to issue penalties for infringing exports; and
3) Strengthen CBP’s authority to issue penalties for infringing imports discovered during audits of company records.
Finally, we recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stations which, in part, will allow copyright owners to obtain overseas royalties that are now denied to them.