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The White House’s latest copyright and patent plan could be better than you think

The White House’s latest copyright and patent plan could be better than you think


A new enforcement report could help make navigating the law easier, not just more dangerous

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White House snow globe patent
White House snow globe patent

Earlier today, the White House laid out how it hopes to enforce rules against copyright infringement, patent trolling, and more. The Joint Strategic Plan, as it’s called, isn’t exactly a new initiative. It’s a periodic report that codifies existing ideas, urges government agencies and companies to work together, and picks up where previous measures left off. But despite years of complaints about overzealous intellectual property protection — and high-profile cases over whether things as simple as human DNA can be patented — it may be a step in the right direction.

"The White House’s Strategic Plan identifies a number of sensible measures to improve copyright enforcement that even copyright skeptics should be able to embrace," says Berin Szoka of the libertarian-leaning think tank TechFreedom. Sherwin Siy, of digital rights group Public Knowledge, also called the report "very encouraging." Both groups have frequently opposed what they see as an overreaching enforcement system, but Siy believes that the report challenges some of the draconian "received dogma" about intellectual property.

Challenging the 'received dogma' on intellectual property

One of the biggest questions about copyright and patent enforcement is whether the laws have remained relevant as technology changes. This year’s plan continues an ongoing review of things like patent and trade secret rules, with an emphasis on closing "loopholes" that could make it hard to identify or solve problems. It also discusses creating copyright or patent small-claims courts, which would offer quicker and cheaper resolution of cases that normally wouldn’t involve enough money to be worth filing. Various agencies have spent the last few years aggressively pursuing huge counterfeiting or piracy busts, but these courts would be meant for civil suits by artists, authors, or inventors.

Unlike the upcoming sweeping reform of the DMCA, potential legal changes aren’t meant to change how we think about intellectual property — the office producing this report is in charge of making sure the existing system works as advertised. But Siy says he’s heartened by a retreat from "monomaniacal" enforcement efforts. He points to a section of the plan dedicated to educating authors or artists about fair use, which lets people draw from an existing work without fear of copyright suits. The US Copyright Office has been tasked with creating an index of major fair use decisions, along with explanations that will make it easier for people to decide if they’re on safe legal ground.

Private agreements are a big part of the plan, but they can be more Kafkaesque than the law itself

"Typically government outreach on copyright issues has focused more on ‘educating’ the public about how very important copyrights are and that we should all respect others' copyrights — without necessarily showing what the limits of copyright are," says Siy. "Sending a message that is not so monomaniacally focused on prohibition is certainly a step forward." But he’s not yet convinced that the plan will actually bear fruit: "Hopefully that message about the scope and bounds of copyrights goes beyond a website hosted by the copyright office and is more present throughout outreach and education efforts here and abroad."

Even 3D printing is being drawn into the debate

Most of the plan is aimed at various parts of the US government — including an admonition to make sure no agency is using pirated software — but the enforcement office also hopes for companies to coordinate on best practices and agreements, in the vein of "six strikes" internet policies or YouTube’s automatic video-filtering ContentID software. This can help create a more responsive copyright system, but it also adds another set of rules to keep track of. "While companies are certainly free to enter into pretty much whatever voluntary agreements they like, these agreements can raise flags for consumers if they're not transparent, and if they create a process without quick and effective redress when they go wrong," says Siy. "A lot of the frustration with Content ID and other voluntary systems is that trying to get something put back when it's taken down improperly can sometimes be even more Kafkaesque than the DMCA process."

As the Obama administration tries to build on the present intellectual property structure, it’s also looking towards the future. In the first few pages of the report, the enforcement office lays out where it thinks the intellectual property debate will shift in the coming years. Some items, like an ongoing fight against patent trolls and theft of trade secrets from China and other countries, are already high on the administration’s priority list.

Last on the list, though, is something that has barely emerged as more than a theoretical issue: 3D-printing piracy. With the consumer printing market in its infancy, we’re not yet at a point where companies are as worried about people knocking off an Ikea table as burning a DVD, even if there have been takedown notices for 3D-printable files. But it’s a sign of how far the intellectual property debate now reaches, as well as the sheer number of tangled issues that policymakers need to sort through.