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Federal efforts to coordinate protection of intellectual property from piracy and counterfeiting have been largely unsuccessful. And they are being undertaken by a council that “lacks clear leadership” and “struggles to define its purpose,” according to a congressional report. The Government Accountability Office (GAO) reported earlier this month in a Senate hearing that a congressionally mandated group created in 1999 has done little more than produce three annual reports that catalog the actions of individual agencies and has met infrequently. The group, the National Intellectual Property Law Enforcement Coordination Council (NIPLECC), was the mechanism created by the Clinton administration and approved through statute by Congress to coordinate U.S. efforts to enforce IP rights in the United States and overseas. Chris S. Israel, NIPLECC coordinator, responded, “We were never designed and put in place to be operational. Our office was to provide the mechanism for agencies to coordinate.” The group was intended to facilitate cooperation between at least six federal agencies working to curtail piracy of American IP and raise the profile of prosecution in the United States and abroad. Its role was expanded by Congress in 2004 to include setting policies, objectives and strategy for protecting American IP overseas. “Created in 1999 to serve as the central coordinating structure for IP enforcement across federal agencies, NIPLECC has struggled to define its purpose, retains an image of inactivity within the private sector and continues to have leadership problems despite enhancements made by Congress in 2004 to strengthen its role,” said the report’s author, Loren Yager, GAO director of international affairs and trade. NIPLECC’s most recent report to Congress fails to spell out how it plans to carry out its oversight responsibilities. Expanding into a policy role to promote the needs of corporate IP owners has raised some concerns by outside observers. On policy issues, it is the public at large that is not being fully heard and considered, said Lydia Loren, acting dean and law professor specializing in copyright and IP at Lewis & Clark Law School in Portland, Ore. “The industry has lobbying organs that are quite effective in changing policy.” Laws adopted over the last two decades have been very industry- and IP-owner-friendly, Loren said. Coordinating criminal prosecution is a much more valuable role for NIPLECC, she said. The report pointed out that NIPLECC’s lackluster efforts were overshadowed by a separate presidential initiative led by the National Security Council known as STOP, or Strategy for Targeting Organized Piracy. The GAO said STOP, a strategy with virtually identical objectives, received more respect among federal agencies because it was launched by the Bush administration and came directly out of the White House. That got agency attention. But that is also STOP’s biggest weakness. There is nothing about STOP that will guarantee it lasts beyond the Bush administration’s departure in two years, according to the GAO’s Yager. NIPLECC’s Israel said, “One criticism since 1999 is that NIPLECC failed to establish a foothold across agencies to identify a place for itself and rationale for being there. That is what STOP has succeeded in doing.” Israel said he has attempted to merge the strategies of STOP into the coordination efforts of NIPLECC in hopes of keeping the effort alive after 2008. WTO involvement As an indication of its turnaround attempts, Israel pointed to use of the World Trade Organization to file cases against China for alleged copyright violation and China’s failure to create enforcement mechanisms. Loren was more skeptical of the process. “It is hard to tell if permanence for a group like NIPLECC is a good thing or a bad thing. “If the focus is to assist privacy companies in getting the attention of the investigative arm of the government that could be a good thing. But if it is focused on having the voice of industry heard in shaping policy, I don’t think that is necessary at all,” she said. An April 12 hearing in the Senate Committee on Banking, Housing and Urban Affairs’ international trade subcommittee was the first on legislation aimed at formalizing and shoring up NIPLECC to combat IP counterfeiting and piracy, S. 522 or the Intellectual Property Rights Enforcement Act,. Despite the GAO criticism, Brad Huther of the U.S. Chamber of Commerce praised U.S. Department of Justice efforts, noting that 350 defendants were charged in fiscal year 2005 with IP offenses, nearly double those charged a year earlier.

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