On Trump and IP rights: An Interview with CCC’s Roy Kaufman

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On Trump and IP rights: An Interview with CCC's Roy Kaufman

Interviewed by Jessica Pettitt, Strategic Account Manager, Licensing, Copyright Clearance Center 

President Trump may have given little indication regarding his position on intellectual property (IP) rights, but his first-hand experience with the use of those rights is not to be ignored. While Trump  is generally believed to be supportive of IP protections, many IP practitioners have been watching closely for clues about how his presidency might impact IP law and policy—including my colleague, Roy Kaufman, Copyright Clearance Center’s Managing Director of New Ventures.

Is Trump pro-IP?

Jessica Pettitt:  Unsurprisingly, there is a huge amount of speculation about Trump’s views on IP and copyright law. Cutting through the rumors, what do we know so far?

Roy Kaufman:  Well, we know a number of things.  For example, President Trump is a published author and the owner of many trademarks.  While the administration is still young, we are watching activities such as the following in order to gauge how this may impact upon US policy:

  • In March, President Trump ordered a report identifying any significant trading deficits with key US trading partners. Intellectual property theft was named as a potential barrier to trade.
  • In May, newly-appointed USTR Robert Lighthizer confirmed a renegotiation of the North America Free Trade Agreement (NAFTA) with Canada and Mexico, citing the inclusion of new provisions on intellectual property rights. Lighthizer has a reputation for being a strong IP proponent. A May 23 Request for Comments specifically seeks information about intellectual property issues for the upcoming NAFTA renegotiations.
  • This year’s ‘Special 301’ Report, highlighting countries not living up to US copyright protection standards, has placed Canada on its ‘watch list,’ calling out for the first time Canada’s educational copyright exceptions.
  • Trump’s 2018 budget proposal includes a 13% increase for the Copyright Office.
  • The administration urged the Supreme Court not to hear the case of Lenz v Universal, also known as the “dancing baby” case.  That case, which involves a question of the appropriate standard for the sending of a take-down notice under the Digital Millennium Copyright Act was generally considered a mixed result by both pro and anti-copyright groups, it is the anti-copyright groups who supported the Supreme Court appeal.

JP:  How might the administration’s withdrawal from TPP  impact intellectual property law and policy?

RK:  The Trans Pacific Partnership may not have been perfect for rightsholders, but it was generally good. It required minimum standards of intellectual property protection, as well as rule-of-law improvements, in a number of countries where such things are lacking.  US withdrawal from the treaty probably had nothing to do with its copyright provisions, but it does result in a lost opportunity to strengthen IP rights and copyright.

No one can predict what happens next, but going forward, the administration is expected to work on securing bilateral agreements with individual countries in place of TPP. This is likely to achieve better protection for IP rights abroad.  However, the process will be very time-consuming and inefficient—and we may find many countries wanting to use TPP as a starting point anyway.

“It is hoped that as the most experienced user of domestic and international IP rights to serve as US president, Trump will make a positive impact on the IP landscape.” – Roy Kaufman

JP:  So are there any benefits to a TPP which does not include the US?

RK:  Without the United States, TPP may still be beneficial if it requires strong IP protection and a better rule of law. While US industries may not see all of the benefits they might have derived from TPP, they may still get some value from other treaties and improvements. The risk to IP is not so much about TPP without the U.S., but rather a China-led TPP replacement that does not improve IP standards.

The road to safer IP rights

JP:  How would you advise Trump on IP?

RK:  As the most experienced user of domestic and international IP rights ever to serve as US president, President Trump is well positioned to make a positive impact on the IP landscape. The first step would be to appoint a full complement of pro-IP staff to the USTR, Department of Commerce, and other government bodies.

Next, he needs to turn his attention to treaties. Several comprehensive treaties, agreements, and conventions already exist on IP, but many lack robust enforcement. Increasing that enforcement would give those treaties the clout they deserve.  Too often, once a treaty is signed, it is placed in a proverbial drawer and ignored.

Finally, a bill recently passed the House making the role of the Register of Copyright a presidentially appointed position (currently the Register is appointed by the Librarian of Congress). Assuming the bill makes its way past the Senate, we expect the President would sign the bill and hope he appoints a strongly pro-copyright advocate.

If President Trump were to appoint strong candidates to federal IP roles, boost enforcement mechanisms, invest in the modernization of the Copyright Office, and gear federal law enforcement more toward IP crimes, the US would be in a stronger position to protect the intellectual property rights of its business and individuals, both in the US and abroad.

Roy Kaufman

Author: Roy Kaufman

Roy Kaufman is CCC's managing director of new ventures, responsible for expanding service capabilities as CCC moves into new markets and services. He is a member of organizations including the Bar of the State of New York and the Copyright Committee of the International Publishers Association. Roy is Editor-in-Chief of Art Law Handbook and has authored two books on publishing contract law.

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