PUBLIC LAW 110-403—OCT. 13, 2008
PRIORITIZING RESOURCES AND ORGANIZATION FOR INTELLECTUAL PROPERTY ACT OF 2008
An Act
To enhance remedies for violations of intellectual property laws, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
Oct. 13, 2008 [S. 3325]
Prioritizing Resources and Organization for Intellectual Property Act of 2008.
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ”Prioritizing Resources and Organization for Intellectual Property Act of 2008”.
15 USC 8101 (b) TABLE OF CONTENTS.—The table of contents
note. is as follows:
Sec. 1. Short title; table of contents. Sec. 2. Reference. Sec. 3. Definition.
TITLE I—ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAWS
Sec. 101. Registration of claim.
Sec. 102. Civil remedies for infringement.
Sec. 103. Treble damages in counterfeiting cases.
Sec. 104. Statutory damages in counterfeiting cases.
Sec. 105. Importation and exportation.
TITLE II—ENHANCEMENTS TO CRIMINAL INTELLECTUAL PROPERTY LAWS
Sec. 201. Criminal copyright infringement. Sec. 202. Trafficking in counterfeit labels, illicit labels, or counterfeit documentation or packaging for works that can be copyrighted. Sec. 203. Unauthorized fixation. Sec. 204. Unauthorized recording of motion pictures. Sec. 205. Trafficking in counterfeit goods or services. Sec. 206. Forfeiture, destruction, and restitution. Sec. 207. Forfeiture under Economic Espionage Act. Sec. 208. Criminal infringement of a copyright. Sec. 209. Technical and conforming amendments.
TITLE III—COORDINATION AND STRATEGIC PLANNING OF FEDERAL EFFORT AGAINST COUNTERFEITING AND INFRINGEMENT
Sec. 301. Intellectual Property Enforcement Coordinator.
Sec. 302. Definition.
Sec. 303. Joint strategic plan.
Sec. 304. Reporting.
Sec. 305. Savings and repeals.
Sec. 306. Authorization of appropriations.
TITLE IV—DEPARTMENT OF JUSTICE PROGRAMS
Sec. 401. Local law enforcement grants. Sec. 402. Improved investigative and forensic resources for enforcement of laws related to intellectual property crimes. Sec. 403. Additional funding for resources to investigate and prosecute intellectual property crimes and other criminal activity involving computers. Sec. 404. Annual reports.
TITLE V—MISCELLANEOUS
Sec. 501. GAO study on protection of intellectual property
of manufacturers. Sec. 502. GAO audit and report on nonduplication and
efficiency. Sec. 503. Sense of Congress.
SEC. 2. REFERENCE.
Any reference in this Act to the ”Trademark Act of 1946” refers to the Act entitled ”An Act to provide for the registration of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes”, approved July 5, 1946 (15 U.S.C. 1051 et seq.).
SEC. 3. DEFINITION. 15 USC 1801.
In this Act, the term ”United States person” means—
(1) any United States resident or national,
(2) any domestic concern (including any permanent domestic establishment of any foreign concern), and
(3) any foreign subsidiary or affiliate (including any permanent foreign establishment) of any domestic concern that is controlled in fact by such domestic concern,
except that such term does not include an individual who resides outside the United States and is employed by an individual or entity other than an individual or entity described in paragraph (1), (2), or (3).
TITLE I—ENHANCEMENTS TO CIVIL INTELLECTUAL PROPERTY LAWS
SEC. 101. REGISTRATION OF CLAIM.
(a) LIMITATION TO CIVIL ACTIONS; HARMLESS ERROR.—Section 411 of title 17, United States Code, is amended—
(1) in the section heading, by inserting ”CIVIL” before ”INFRINGEMENT”;
(2) in subsection (a)—
(A) in the first sentence, by striking ”no action” and inserting ”no civil action”; and
(B) in the second sentence, by striking ”an action” and inserting ”a civil action”;
(3) by redesignating subsection (b) as subsection
(c);
(4) in subsection (c), as so redesignated by paragraph (3), by striking ”506 and sections 509 and” and inserting ”505 and section”; and
(5) by inserting after subsection (a) the following: ”(b)(1) A certificate of registration satisfies the
requirements of this section and section 412, regardless of whether the certificate contains any inaccurate information, unless—
”(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and
”(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.
”(2) In any case in which inaccurate information described under paragraph (1) is alleged, the court shall request the Register of Copyrights to advise the court whether the inaccurate information, if known, would have caused the Register of Copyrights to refuse registration.
”(3) Nothing in this subsection shall affect any rights, obligations, or requirements of a person related to information contained in a registration certificate, except for the institution of and remedies in infringement actions under this section and section 412.”.
(b) TECHNICAL AND CONFORMING AMENDMENTS —
(1) Section 412 of title 17, United States Code, is amended by striking ”411(b)” and inserting ”411(c)”.
(2) The item relating to section 411 in the table of sections for chapter 4 of title 17, United States Code, is amended to read as follows:
‘Sec. 411. Registration and civil infringement actions.’
SEC. 102. CIVIL REMEDIES FOR INFRINGEMENT.
(a) IN GENERAL.—Section 503(a) of title 17, United States Code, is amended to read as follows:
”(a)(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable—
”(A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner;
”(B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of phonorecords may be reproduced; and
”(C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court. Records. ”(2) For impoundments of records ordered under
Protective order. paragraph (1)(C), the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been impounded. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used.
”(3) The relevant provisions of paragraphs (2) through (11) of section 34(d) of the Trademark Act (15 U.S.C. 1116(d)(2) through (11)) shall extend to any impoundment of records ordered under paragraph (1)(C) that is based upon an ex parte application, notwithstanding the provisions of rule 65 of the Federal Rules of Civil Procedure. Any references in paragraphs (2) through (11) of section 34(d) of the Trademark Act to section 32 of such Act shall be read as references to section 501 of this title, and references to use of a counterfeit mark in connection with the sale, offering for sale, or distribution of goods or services shall be read as references to infringement of a copyright.”.
(b) PROTECTIVE ORDER FOR SEIZED RECORDS.—Section 34(d)(7) of the Trademark Act (15 U.S.C. 1116(d)(7)) is amended to read as follows:
”(7) Any materials seized under this subsection shall be taken into the custody of the court. For seizures made under this section, the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been seized. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used.”.
SEC. 103. TREBLE DAMAGES IN
COUNTERFEITING CASES.
Section 35(b) of the Trademark Act of 1946 (15 U.S.C. 1117(b)) is amended to read as follows:
”(b) In assessing damages under subsection (a) for any violation of section 32(1)(a) of this Act or section 220506 of title 36, United States Code, in a case involving use of a counterfeit mark or designation (as defined in section 34(d) of this Act), the court shall, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever amount is greater, together with a reasonable attorney’s fee, if the violation consists of—
”(1) intentionally using a mark or designation, knowing such mark or designation is a counterfeit mark (as defined in section 34(d) of this Act), in connection with the sale, offering for sale, or distribution of goods or services; or
”(2) providing goods or services necessary to the commission of a violation specified in paragraph (1), with the intent that the recipient of the goods or services would put the goods or services to use in committing the violation. In such a case, the court may award prejudgment interest on such amount at an annual interest rate established under section 6621(a)(2) of the Internal Revenue Code of 1986, beginning on the date of the service of the claimant’s pleadings setting forth the claim for such entry of judgment and ending on the date such entry is made, or for such shorter time as the court considers appropriate.”.
SEC. 104. STATUTORY DAMAGES IN
COUNTERFEITING CASES.
Section 35(c) of the Trademark Act of 1946 (15 U.S.C. 1117) is amended—
(1) in paragraph (1)—
(A) by striking ”$500” and inserting ”$1,000”; and
(B) by striking ”$100,000” and inserting ”$200,000”; and
(2) in paragraph (2), by striking ”$1,000,000” and inserting ”$2,000,000”.
SEC. 105. IMPORTATION AND EXPORTATION.
(a) IN GENERAL.—The heading for chapter 6 of title 17, United States Code, is amended to read as follows:
”CHAPTER 6 — MANUFACTURING REQUIREMENTS, IMPORTATION, AND EXPORTATION”.
(b) AMENDMENT ON EXPORTATION.—Section 602(a) of title 17, United States Code, is amended—
(1) by redesignating paragraphs (1) through (3) as subparagraphs (A) through (C), respectively, and moving such subparagraphs 2 ems to the right;
(2) by striking ”(a)” and inserting ”(a) INFRINGING IMPORTATION OR EXPORTATION.—
”(1) IMPORTATION.—”;
(3) by striking ”This subsection does not apply to —” and inserting the following:
”(2) IMPORTATION OR EXPORTATION OF INFRINGING ITEMS.— Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506.
”(3) EXCEPTIONS.—This subsection does not apply to—”;
(4) in paragraph (3)(A) (as redesignated by this subsection) by inserting ”or exportation” after ”importation”; and
(5) in paragraph (3)(B) (as redesignated by this subsection)—
(A) by striking ”importation, for the private use of the importer” and inserting ”importation or exportation, for the private use of the importer or exporter”; and
(B) by inserting ”or departing from the United States” after ”United States”.
(c) CONFORMING AMENDMENTS.—(1) Section 602 of title 17, United States Code, is further amended—
(A) in the section heading, by inserting ”or exportation” after ”importation”; and
(B) in subsection (b)—
(i) by striking ”(b) In a case” and inserting ”(b) IMPORT PROHIBITION.—In a case”;
(ii) by striking ”the United States Customs Service” and inserting ”United States Customs and Border Protection”; and
(iii) by striking ”the Customs Service” and inserting ”United States Customs and Border
Protection”.
(2) Section 601(b)(2) of title 17, United States Code, is amended by striking ”the United States Customs Service” and inserting ”United States Customs and Border Protection”.
(3) The item relating to chapter 6 in the table of chapters for title 17, United States Code, is amended to read as follows:
”6. MANUFACTURING REQUIREMENTS, IMPORTATION, AND EXPORTATION 601”.
TITLE II—ENHANCEMENTS TO CRIMINAL INTELLECTUAL PROPERTY LAWS
SEC. 201. CRIMINAL COPYRIGHT INFRINGEMENT.
(a) FORFEITURE AND DESTRUCTION; RESTITUTION.— Section 506(b) of title 17, United States Code, is amended to read as follows:
”(b) FORFEITURE, DESTRUCTION, AND RESTITUTION.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.”.
(b) SEIZURES AND FORFEITURES —
(1) REPEAL.—Section 509 of title 17, United States Code, is repealed.
(2) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for chapter 5 of title 17, United States Code, is amended by striking the item relating to section 509.
SEC. 202. TRAFFICKING IN COUNTERFEIT LABELS, ILLICIT LABELS, OR COUNTERFEIT DOCUMENTATION OR PACKAGING FOR WORKS THAT CAN BE COPYRIGHTED.
Section 2318 of title 18, United States Code, is amended—
in subsection (a)—
(A) by redesignating subparagraphs (A) through (G) as clauses (i) through (vii), respectively;
(B) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; and
(C) by striking ”Whoever” and inserting ”(1) Whoever”;
(2) by amending subsection (d) to read as follows: ”(d) FORFEITURE AND DESTRUCTION OF
PROPERTY; RESTITUTION — Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”; and
(3) by striking subsection (e) and redesignating subsection (f) as subsection (e).
SEC. 203. UNAUTHORIZED FIXATION.
(a) Section 2319A(b) of title 18, United States Code, is amended to read as follows:
”(b) FORFEITURE AND DESTRUCTION OF PROPERTY; RESTITUTION.— Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.
(b) Section 2319A(c) of title 18, United States Code, Regulations. is amended by striking the second sentence and inserting:
”The Secretary of Homeland Security shall issue regulations by which any performer may, upon payment of a specified fee, be entitled to notification by United States Customs and Border Protection of the importation of copies or phonorecords that appear to consist of unauthorized fixations of the sounds or sounds and images of a live musical performance.”.
SEC. 204. UNAUTHORIZED RECORDING OF MOTION PICTURES.
Section 2319B(b) of title 18, United States Code, is amended to read as follows:
”(b) FORFEITURE AND DESTRUCTION OF PROPERTY; RESTITUTION.— Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.
SEC. 205. TRAFFICKING IN COUNTERFEIT GOODS OR SERVICES.
(a) IN GENERAL.—Section 2320 of title 18, United States Code, is amended—
(1) in subsection (a)—
(A) by striking ”WHOEVER” and inserting ”OFFENSE.—”
”(1) IN GENERAL.—Whoever;”;
(B) by moving the remaining text 2 ems to the right; and
(C) by adding at the end the following:
”(2) SERIOUS BODILY HARM OR DEATH — ”(A) SERIOUS BODILY HARM—If the offender knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for not more than 20 years, or both.
”(B) DEATH.—If the offender knowingly or recklessly causes or attempts to cause death from conduct in violation of paragraph (1), the penalty shall be a fine under this title or imprisonment for any term of years or for life, or both.”; and
(2) by adding at the end the following: ”(h) TRANSSHIPMENT AND EXPORTATION — No goods or services, the trafficking in of which is prohibited by this section, shall be transshipped through or exported from the United States. Any such transshipment or exportation shall be deemed a violation of section 42 of an Act to provide for the registration of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’).”.
(b) FORFEITURE AND DESTRUCTION OF PROPERTY; RESTITUTION — Section 2320(b) of title 18, United States Code, is amended to read as follows:
”(b) FORFEITURE AND DESTRUCTION OF PROPERTY; RESTITUTION — Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.
SEC. 206. FORFEITURE, DESTRUCTION, AND RESTITUTION.
(a) IN GENERAL.—Chapter 113 of title 18, United States Code, is amended by adding at the end the following:
Court orders. ”SEC. 2323. FORFEITURE, DESTRUCTION, AND
Protective order.
RESTITUTION.
”(a) CIVIL FORFEITURE —
”(1) PROPERTY SUBJECT TO FORFEITURE.—The following property is subject to forfeiture to the United States Government:
”(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
”(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
”(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).
”(2) PROCEDURES.—The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section. For seizures made under this section, the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been seized. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used. At the conclusion of
the forfeiture proceedings, unless otherwise requested by an agency of the United States, the court shall order that any property forfeited under paragraph (1) be destroyed, or otherwise disposed of according to law.
”(b) CRIMINAL FORFEITURE —
”(1) PROPERTY SUBJECT TO FORFEITURE.—The court, in imposing sentence on a person convicted of an offense under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, shall order, in addition to any other sentence imposed, that the person forfeit to the United States Government any property subject to forfeiture under subsection (a) for that offense.
”(2) PROCEDURES —
”(A) IN GENERAL.—The forfeiture of property under paragraph (1), including any seizure and disposition of the property and any related judicial or administrative proceeding, shall be governed by the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853), other than subsection (d) of that section.
”(B) DESTRUCTION.—At the conclusion of the forfeiture proceedings, the court, unless otherwise requested by an agency of the United States shall order that any—
”(i) forfeited article or component of an article bearing or consisting of a counterfeit mark be destroyed or otherwise disposed of according to law; and
”(ii) infringing items or other property described in subsection (a)(1)(A) and forfeited under paragraph (1) of this subsection be destroyed or otherwise disposed of according to law.
”(c) RESTITUTION.—When a person is convicted of an offense under section 506 of title 17 or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, the court, pursuant to sections 3556, 3663A, and 3664 of this title, shall order the person to pay restitution to any victim of the offense as an offense against property referred to in section 3663A(c)(1)(A)(ii) of this title.”.
(b) TECHNICAL AND CONFORMING AMENDMENT.—The table of sections for chapter 113 of title 18, United States Code, is amended by adding at the end the following:
‘Sec. 2323. Forfeiture, destruction, and restitution.’
SEC. 207. FORFEITURE UNDER ECONOMIC ESPIONAGE ACT.
Section 1834 of title 18, United States Code, is amended to read as follows:
”SEC. 1834. CRIMINAL FORFEITURE.
”Forfeiture, destruction, and restitution relating to this chapter shall be subject to section 2323, to the extent provided in that section, in addition to any other similar remedies provided by law.”.
SEC. 208. CRIMINAL INFRINGEMENT OF A COPYRIGHT.
Section 2319 of title 18, United States Code, is amended—
(1) in subsection (b)(2)—
(A) by inserting ”is a felony and” after ”offense” the first place such term appears; and
(B) by striking ”paragraph (1)” and inserting ”subsection (a)”;
(2) in subsection (c)(2)—
(A) by inserting ”is a felony and” after ”offense” the first place such term appears; and
(B) by striking ”paragraph (1)” and inserting ”subsection (a)”;
(3) in subsection (d)(3)—
(A) by inserting ”is a felony and” after ”offense” the first place such term appears; and
(B) by inserting ”under subsection (a)” before the semicolon; and
(4) in subsection (d)(4), by inserting ”is a felony and” after ”offense” the first place such term appears.
SEC. 209. TECHNICAL AND CONFORMING AMENDMENTS.
(a) AMENDMENTS TO TITLE 17, UNITED STATES CODE.—
(1) Section 109 (b)(4) of title 17, United States Code, is amended by striking ”505, and 509” and inserting ”and 505”.
(2) Section 111 of title 17, United States Code, is amended—
(A) in subsection (b), by striking ”and 509”;
(B) in subsection (c)—
(i) in paragraph (2), by striking ”and 509”;
(ii) in paragraph (3), by striking ”sections 509 and 510” and inserting ”section 510”; and
(iii) in paragraph (4), by striking ”and section 509”; and
(C) in subsection (e)—
(i) in paragraph (1), by striking ”sections 509 and 510” and inserting ”section 510”; and
(ii) in paragraph (2), by striking ”and 509”.
(3) Section 115(c) of title 17, United States Code, is amended—
(A) in paragraph (3)(G)(i), by striking ”and 509”; and
(B) in paragraph (6), by striking ”and 509”.
(4) Section 119(a) of title 17, United States Code, is amended—
(A) in paragraph (6), by striking ”sections 509 and 510” and inserting ”section 510”;
(B) in paragraph (7)(A), by striking ”and 509”;
(C) in paragraph (8), by striking ”and 509”; and
(D) in paragraph (13), by striking ”and 509”.
(5) Section 122 of title 17, United States Code, is amended—
(A) in subsection (d), by striking ”and 509”;
(B) in subsection (e), by striking ”sections 509 and 510” and inserting ”section 510”; and
(C) in subsection (f)(1), by striking ”and 509”.
(6) Section 411(b) of title 17, United States Code, is amended by striking ”sections 509 and 510” and inserting ”section 510”.
(b) OTHER AMENDMENTS—Section 596(c)(2)(c) of the Tariff Act of 1950 (19 U.S.C. 1595a(c)(2)(c)) is amended by striking ”or 509”.
TITLE III—COORDINATION AND STRATEGIC PLANNING OF FEDERAL EFFORT AGAINST COUNTERFEITING AND INFRINGEMENT
SEC. 301. INTELLECTUAL PROPERTY
ENFORCEMENT COORDINATOR.
(a) INTELLECTUAL PROPERTY ENFORCEMENT COORDINATOR— The President shall appoint, by and with the advice and consent of the Senate, an Intellectual Property Enforcement Coordinator (in this title referred to as the ”IPEC”) to serve within the Executive Office of the President. As an exercise of the rulemaking power of the Senate, any nomination of the IPEC submitted to the Senate for confirmation, and referred to a committee, shall be referred to the Committee on the Judiciary.
(b) DUTIES OF IPEC —
(1) IN GENERAL.—The IPEC shall—
(A) chair the interagency intellectual property enforcement advisory committee established under subsection (b)(3)(A);
(B) coordinate the development of the Joint Strategic Plan against counterfeiting and infringement by the advisory committee under section 303;
(C) assist, at the request of the departments and agencies listed in subsection (b)(3)(A), in the implementation of the Joint Strategic Plan;
(D) facilitate the issuance of policy guidance to departments and agencies on basic issues of policy and interpretation, to the extent necessary to assure the coordination of intellectual property enforcement policy and consistency with other law;
(E) report to the President and report to Congress, to the extent consistent with law, regarding domestic and international intellectual property enforcement programs;
(F) report to Congress, as provided in section 304, on the implementation of the Joint Strategic Plan, and make recommendations, if any and as appropriate, to Congress for improvements in Federal intellectual property laws and enforcement efforts; and
15 USC 8111.
President. Appointments.
(G) carry out such other functions as the President may direct.
Reports.
Reports.
Recommendations.
(2) LIMITATION ON AUTHORITY.—The IPEC may not control or direct any law enforcement agency, including the Department of Justice, in the exercise of its investigative or prosecutorial authority.
(3) ADVISORY COMMITTEE —
(A) ESTABLISHMENT—There is established an interagency intellectual property enforcement advisory committee composed of the IPEC, who shall chair the committee, and the following members:
(i) Senate-confirmed representatives of the following departments and agencies who are involved in intellectual property enforcement, and who are, or are appointed by, the respective heads of those departments and agencies:
(I) The Office of Management and Budget.
(II) Relevant units within the Department of Justice, including the Federal Bureau of Investigation and the Criminal Division.
(III) The United States Patent and Trademark Office and other relevant units of the Department of Commerce.
(IV) The Office of the United States Trade Representative.
(V) The Department of State, the United States Agency for International Development, and the Bureau of International Narcotics Law Enforcement.
(VI) The Department of Homeland Security, United States Customs and Border Protection, and United States Immigration and Customs Enforcement.
(VII) The Food and Drug Administration of the Department of Health and Human Services.
(VIII) The Department of Agriculture.
(IX) Any such other agencies as the President determines to be substantially involved in the efforts of the Federal Government to combat counterfeiting and infringement.
(ii) The Register of Copyrights, or a senior representative of the United States Copyright Office appointed by the Register of Copyrights.
Strategic plan. (B) FUNCTIONS.—The advisory committee
established under subparagraph (A) shall develop the Joint Strategic Plan against counterfeiting and infringement under section 303.
15 USC 8112. SEC. 302. DEFINITION.
For purposes of this title, the term ”intellectual property enforcement” means matters relating to the enforcement of laws protecting copyrights, patents, trademarks, other forms of intellectual property, and trade secrets, both in the United States and abroad, including in particular matters relating to combating counterfeit and infringing goods.
15 USC 8113. SEC. 303. JOINT STRATEGIC PLAN.
(a) PURPOSE.—The objectives of the Joint Strategic Plan against counterfeiting and infringement that is referred to in section 301(b)(1)(B) (in this section referred to as the ”joint strategic plan”) are the following:
(1) Reducing counterfeit and infringing goods in the domestic and international supply chain.
(2) Identifying and addressing structural weaknesses, systemic flaws, or other unjustified impediments to effective enforcement action against the financing, production, trafficking, or sale of counterfeit or infringing goods, including identifying duplicative efforts to enforce, investigate, and prosecute intellectual property crimes across the Federal agencies and Departments that comprise the Advisory Committee and recommending how such duplicative efforts may be minimized. Such recommendations may include recommendations on how to reduce duplication in personnel, materials, technologies, and facilities utilized by the agencies and Departments responsible for the enforcement, investigation, or prosecution of intellectual property crimes.
(3) Ensuring that information is identified and shared among the relevant departments and agencies, to the extent permitted by law, including requirements relating to confidentiality and privacy, and to the extent that such sharing of information is consistent with Department of Justice and other law enforcement protocols for handling such information, to aid in the objective of arresting and prosecuting individuals and entities that are knowingly involved in the financing, production, trafficking, or sale of counterfeit or infringing goods.
(4) Disrupting and eliminating domestic and international counterfeiting and infringement networks.
(5) Strengthening the capacity of other countries to protect and enforce intellectual property rights, and reducing the number of countries that fail to enforce laws preventing the financing, production, trafficking, and sale of counterfeit and infringing goods.
(6) Working with other countries to establish international standards and policies for the effective
protection and enforcement of intellectual property rights.
(7) Protecting intellectual property rights overseas
by—
(A) working with other countries and exchanging information with appropriate law enforcement agencies in other countries relating to individuals and entities involved in the financing, production, trafficking, or sale of counterfeit and infringing goods;
(B) ensuring that the information referred to in subparagraph (A) is provided to appropriate United States law enforcement agencies in order to assist, as warranted, enforcement activities in cooperation with appropriate law enforcement agencies in other countries; and
(C) building a formal process for consulting with companies, industry associations, labor unions, and other interested groups in other countries with respect to intellectual property enforcement.
(b) TIMING.—Not later than 12 months after the Deadlines. date of the enactment of this Act, and not later than December 31 of every third year thereafter, the IPEC shall
submit the joint strategic plan to the Committee on the Judiciary and the Committee on Appropriations of the Senate, and to the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives.
(c) RESPONSIBILITY OF THE IPEC.—During the development of the joint strategic plan, the IPEC—
(1) shall provide assistance to, and coordinate the meetings and efforts of, the appropriate officers and employees of departments and agencies represented on the advisory committee appointed under section 301(b)(3) who are involved in intellectual property enforcement; and
(2) may consult with private sector experts in intellectual property enforcement in furtherance of providing assistance to the members of the advisory committee appointed under section 301(b)(3).
(d) RESPONSIBILITIES OF OTHER DEPARTMENTS AND AGENCIES — In the development and implementation of the joint strategic plan, the heads of the departments and agencies identified under section 301(b)(3) shall—
(1) designate personnel with expertise and Designations. experience in intellectual property enforcement
matters to work with the IPEC and other members of the advisory committee; and
(2) share relevant department or agency information with the IPEC and other members of the advisory committee, including statistical information on the enforcement activities of the department or agency against counterfeiting or infringement, and plans for addressing the joint strategic plan, to the extent permitted by law, including requirements
relating to confidentiality and privacy, and to the extent that such sharing of information is consistent with Department of Justice and other law enforcement protocols for handling such information.
(e) CONTENTS OF THE JOINT STRATEGIC PLAN.—Each joint strategic plan shall include the following:
(1) A description of the priorities identified for carrying out the objectives in the joint strategic plan, including activities of the Federal Government relating to intellectual property enforcement.
(2) A description of the means to be employed to achieve the priorities, including the means for improving the efficiency and effectiveness of the Federal Government’s enforcement efforts against counterfeiting and infringement.
(3) Estimates of the resources necessary to fulfill the priorities identified under paragraph (1).
(4) The performance measures to be used to monitor results under the joint strategic plan during the following year.
(5) An analysis of the threat posed by violations of intellectual property rights, including the costs to the economy of the United States resulting from violations of intellectual property laws, and the threats to public health and safety created by counterfeiting and infringement.
(6) An identification of the departments and agencies that will be involved in implementing each priority under paragraph (1).
(7) A strategy for ensuring coordination among the departments and agencies identified under paragraph (6), which will facilitate oversight by the executive branch of, and accountability among, the departments and agencies responsible for carrying out the strategy.
(8) Such other information as is necessary to convey the costs imposed on the United States economy by, and the threats to public health and safety created by, counterfeiting and infringement, and those steps that the Federal Government intends to take over the period covered by the succeeding joint strategic plan to reduce those costs and counter those threats.
(f) ENHANCING ENFORCEMENT EFFORTS OF FOREIGN GOVERNMENTS.— The joint strategic plan shall include programs to provide training and technical assistance to foreign governments for the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement. With respect to such programs, the joint strategic plan shall—
(1) seek to enhance the efficiency and consistency with which Federal resources are expended, and seek to minimize duplication, overlap, or inconsistency of efforts;
(2) identify and give priority to those countries
where programs of training and technical assistance can be carried out most effectively and with the greatest benefit to reducing counterfeit and infringing products in the United States market, to protecting the intellectual property rights of United States persons and their licensees, and to protecting the interests of United States persons otherwise harmed by violations of intellectual property rights in those countries;
(3) in identifying the priorities under paragraph (2), be guided by the list of countries identified by the United States Trade Representative under section 182(a) of the Trade Act of 1974 (19 U.S.C. 2242(a)); and
(4) develop metrics to measure the effectiveness of the Federal Government’s efforts to improve the laws and enforcement practices of foreign governments against counterfeiting and infringement.
(g) DISSEMINATION OF THE JOINT STRATEGIC PLAN.—The joint strategic plan shall be posted for public access on the website of the White House, and shall be disseminated to the public through such other means as the IPEC may identify.
SEC. 304. REPORTING.
(a) ANNUAL REPORT.—Not later than December 31 of each calendar year beginning in 2009, the IPEC shall submit a report on the activities of the advisory committee during the preceding fiscal year. The annual report shall be submitted to Congress, and disseminated to the people of the United States, in the manner specified in subsections (b) and (g) of section 303.
(b) CONTENTS.—The report required by this section shall include the following:
(1) The progress made on implementing the strategic plan and on the progress toward fulfillment of the priorities identified under section 303(e)(1).
(2) The progress made in efforts to encourage Federal, State, and local government departments and agencies to accord higher priority to intellectual property enforcement.
(3) The progress made in working with foreign countries to investigate, arrest, and prosecute entities and individuals involved in the financing, production, trafficking, and sale of counterfeit and infringing goods.
(4) The manner in which the relevant departments and agencies are working together and sharing information to strengthen intellectual property enforcement.
Web site.
Public
information.
15 USC 8114.
Public information.
(5) An assessment of the successes and shortcomings of the efforts of the Federal Government, including departments and agencies
represented on the committee established under section 301(b)(3).
(6) Recommendations, if any and as appropriate, for any changes in enforcement statutes, regulations, or funding levels that the advisory committee considers would significantly improve the effectiveness or efficiency of the effort of the Federal Government to combat counterfeiting and infringement and otherwise strengthen intellectual property enforcement, including through the elimination or consolidation of duplicative programs or initiatives.
(7) The progress made in strengthening the capacity of countries to protect and enforce intellectual property rights.
(8) The successes and challenges in sharing with other countries information relating to intellectual property enforcement.
(9) The progress made under trade agreements and treaties to protect intellectual property rights of United States persons and their licensees.
(10) The progress made in minimizing duplicative efforts, materials, facilities, and procedures of the Federal agencies and Departments responsible for the enforcement, investigation, or prosecution of intellectual property crimes.
(11) Recommendations, if any and as appropriate, on how to enhance the efficiency and consistency with which Federal funds and resources are expended to enforce, investigate, or prosecute intellectual property crimes, including the extent to which the agencies and Departments responsible for the enforcement, investigation, or prosecution of intellectual property crimes have utilized existing personnel, materials, technologies, and facilities.
15 USC 8115. SEC. 305. SAVINGS AND REPEALS.
(a) TRANSITION FROM NIPLECC TO IPEC —
(1) REPEAL OF NIPLECC.—Section 653 of the Treasury and General Government Appropriations Act, 2000 (15 U.S.C. 1128) is repealed effective upon confirmation of the IPEC by the Senate and publication of such appointment in the Congressional Record.
Effective date. Publication.
(2) CONTINUITY OF PERFORMANCE OF DUTIES.—Upon confirmation by the Senate, and notwithstanding paragraph (1), the IPEC may use the services and personnel of the National Intellectual Property Law Enforcement Coordination Council, for such time as is reasonable, to perform any functions or duties which in the discretion of the IPEC are necessary to facilitate the orderly transition of any functions or duties transferred from the Council to the IPEC pursuant to any provision of this Act or any amendment made by this Act.
(b) CURRENT AUTHORITIES NOT AFFECTED.—Except as provided in subsection (a), nothing in this title shall alter the authority of any department or agency of the United States (including any independent agency) that relates to—
(1) the investigation and prosecution of violations of laws that protect intellectual property rights;
(2) the administrative enforcement, at the borders of the United States, of laws that protect intellectual property rights; or
(3) the United States trade agreements program or international trade.
(c) RULES OF CONSTRUCTION.—Nothing in this title—
(1) shall derogate from the powers, duties, and functions of any of the agencies, departments, or other entities listed or included under section 301(b)(3)(A); and
(2) shall be construed to transfer authority regarding the control, use, or allocation of law enforcement resources, or the initiation or prosecution of individual cases or types of cases, from the responsible law enforcement department or agency.
15 USC 8116. SEC. 306. AUTHORIZATION OF
APPROPRIATIONS.
(a) IN GENERAL.—There are authorized to be appropriated for each fiscal year such sums as may be necessary to carry out this title.
TITLE IV—DEPARTMENT OF JUSTICE PROGRAMS
SEC. 401. LOCAL LAW ENFORCEMENT GRANTS. 42 USC
AUTHORIZATION.—Section 2 of the Computer Crime Enforcement Act (42 U.S.C. 3713) is amended—
(1) in subsection (b), by inserting after ”computer crime” each place it appears the following: ”, including infringement of copyrighted works over the Internet”; and
(2) in subsection (e)(1), relating to authorization of appropriations, by striking ”fiscal years 2001 through 2004” and inserting ”fiscal years 2009 through 2013”.
(b) GRANTS.—The Office of Justice Programs of the Department of Justice may make grants to eligible State or local law enforcement entities, including law enforcement agencies of municipal governments and public educational institutions, for training, prevention, enforcement, and prosecution of intellectual property theft and infringement crimes (in this subsection referred to as ”IP-TIC grants”), in accordance with the following:
(1) USE OF IP-TIC GRANT AMOUNTS.—IP- TIC grants may be used to establish and develop programs to do the following with respect to the enforcement of State and local true name and address laws and State and local criminal laws on antiinfringement, anti-counterfeiting, and unlawful acts with respect to goods by reason of their protection by a patent, trademark, service mark, trade secret, or other intellectual property right under State or Federal law:
(A) Assist State and local law enforcement agencies in enforcing those laws, including by reimbursing State and local entities for expenses incurred in performing enforcement operations, such as overtime payments and storage fees for seized evidence.
(B) Assist State and local law enforcement agencies in educating the public to prevent, deter, and identify violations of those laws.
(C) Educate and train State and local law enforcement officers and prosecutors to conduct investigations and forensic analyses of evidence and prosecutions in matters involving those laws.
(D) Establish task forces that include personnel from State or local law enforcement entities, or both, exclusively to conduct investigations and forensic analyses of evidence and prosecutions in matters involving those laws.
(E) Assist State and local law enforcement officers and prosecutors in acquiring computer and other equipment to conduct investigations and forensic analyses of evidence in matters involving those laws.
(F) Facilitate and promote the sharing, with State and local law enforcement officers and prosecutors, of the expertise and information of Federal law enforcement agencies about the investigation, analysis, and prosecution of matters involving those laws and criminal infringement of copyrighted works, including the use of multijurisdictional task forces.
(2) ELIGIBILITY.—To be eligible to receive an IP-TIC grant, a State or local government entity shall provide to the Attorney General, in addition to the information regularly required to be provided under the Financial Guide issued by the Office of Justice Programs and any other information required of Department of Justice’s grantees—
(A) assurances that the State in which the government entity is located has in effect laws described in paragraph (1);
Assessments. (B) an assessment of the resource needs of the
State or local government entity applying for the grant, including information on the need for reimbursements of base salaries and overtime costs, storage fees, and other expenditures to improve the investigation, prevention, or enforcement of laws described in paragraph (1); and
Pl (C) a plan for coordinating the programs
. funded under this section with other federally
funded technical assistance and training programs, including directly funded local programs such as the Edward Byrne Memorial Justice Assistance Grant Program authorized by subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).
(3) MATCHING FUNDS.—The Federal share of an IP-TIC grant may not exceed 50 percent of the costs of the program or proposal funded by the IP- TIC grant.
(4) AUTHORIZATION OF APPROPRIATIONS —
(A) AUTHORIZATION—There is authorized to be appropriated to carry out this subsection the sum of $25,000,000 for each of fiscal years 2009 through 2013.
(B) LIMITATION.—Of the amount made available to carry out this subsection in any fiscal year, not more than 3 percent may be used by the Attorney General for salaries and administrative expenses.
42 USC 3713b. SEC. 402. IMPROVED INVESTIGATIVE AND
FORENSIC RESOURCES FOR ENFORCEMENT OF LAWS RELATED TO INTELLECTUAL PROPERTY CRIMES.
(a) IN GENERAL.—Subject to the availability of appropriations to carry out this subsection, the Attorney General, in consultation with the Director of the Federal Bureau of Investigation, shall, with respect to crimes related to the theft of intellectual property—
(1) ensure that there are at least 10 additional operational agents of the Federal Bureau of Investigation designated to support the Computer Crime and Intellectual Property Section of the Criminal Division of the Department of Justice in the investigation and coordination of intellectual property crimes;
(2) ensure that any Computer Hacking and Intellectual Property Crime Unit in the Department of Justice is supported by at least 1 agent of the Federal Bureau of Investigation (in addition to any agent supporting such unit as of the date of the enactment of this Act) to support such unit for the purpose of investigating or prosecuting intellectual property crimes;
(3) ensure that all Computer Hacking and Intellectual Property Crime Units located at an office of a United States Attorney are assigned at least 2 Assistant United States Attorneys responsible for investigating and prosecuting computer hacking or intellectual property crimes; and
(4) ensure the implementation of a regular and comprehensive training program—
(A) the purpose of which is to train agents of the Federal Bureau of Investigation in the investigation and prosecution of such crimes and the enforcement of laws related to intellectual property crimes; and
(B) that includes relevant forensic training related to investigating and prosecuting intellectual property crimes.
(b) ORGANIZED CRIME PLAN.—Subject to the Deadline. availability of appropriations to carry out this subsection,
and not later than 180 days after the date of the enactment of this Act, the Attorney General, through the United States Attorneys’ Offices, the Computer Crime and Intellectual Property section, and the Organized Crime and Racketeering section of the Department of Justice, and in consultation with the Federal Bureau of Investigation and other Federal law enforcement agencies, such as the Department of Homeland Security, shall create and implement a comprehensive, longrange plan to investigate and prosecute international organized crime syndicates engaging in or supporting crimes relating to the theft of intellectual property.
(c) AUTHORIZATION.—There are authorized to be appropriated to carry out this section $10,000,000 for each of fiscal years 2009 through 2013.
SEC. 403. ADDITIONAL FUNDING FOR 42 USC 3713c.
RESOURCES TO INVESTIGATE AND PROSECUTE INTELLECTUAL PROPERTY CRIMES AND OTHER CRIMINAL ACTIVITY INVOLVING COMPUTERS.
(a) ADDITIONAL FUNDING FOR RESOURCES —
(1) AUTHORIZATION.—In addition to amounts otherwise authorized for resources to investigate and prosecute intellectual property crimes and other criminal activity involving computers, there are authorized to be appropriated for each of the fiscal years 2009 through 2013—
$10,000,000 to the Director of the Federal Bureau of Investigation; and
$10,000,000 to the Attorney General for the Criminal Division of the Department of Justice.
(2) AVAILABILITY—Any amounts appropriated under paragraph (1) shall remain available until expended.
(b) USE OF ADDITIONAL FUNDING —Funds made available under subsection (a) shall be used by the Director of the Federal Bureau of Investigation and the Attorney General, for the Federal Bureau of Investigation and the Criminal Division of the Department of Justice, respectively, to—
(1) hire and train law enforcement officers to—
investigate intellectual property crimes and other crimes committed through the use of computers and other information technology, including through the use of the Internet; and
assist in the prosecution of such crimes; and
(2) enable relevant units of the Department of Justice, including units responsible for investigating computer hacking or intellectual property crimes, to procure advanced tools of forensic science and expert computer forensic assistance, including from non-governmental entities, to investigate, prosecute, and study such crimes.
42 USC 3713d. SEC. 404. ANNUAL REPORTS.
(a) REPORT OF THE ATTORNEY GENERAL — Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Attorney General shall submit a report to Congress on actions taken to carry out this title. The initial report required under this subsection shall be submitted by May 1, 2009. All subsequent annual reports shall be submitted by May 1st of each fiscal year thereafter. The report required under this subsection may be submitted as part of the annual performance report of the Department of Justice, and shall include the following:
Grants. (1) With respect to grants issued under section
401, the number and identity of State and local law enforcement grant applicants, the number of grants issued, the dollar value of each grant, including a break down of such value showing how the recipient used the funds, the specific purpose of each grant, and the reports from recipients of the grants on the efficacy of the program supported by the grant. The Department of Justice shall use the information provided by the grant recipients to produce a statement for each individual grant. Such statement shall state whether each grantee has accomplished the purposes of the grant as established in section 401(b). Those grantees not in compliance with the requirements of this title shall be subject, but not limited to, sanctions as described in the Financial Guide issued by the Office of Justice Programs at the Department of Justice.
(2) With respect to the additional agents of the Federal Bureau of Investigation authorized under paragraphs (1) and (2) of section 402(a), the number of investigations and actions in which such agents were engaged, the type of each action, the resolution of each action, and any penalties imposed in each action.
(3) With respect to the training program authorized under section 402(a)(4), the number of agents of the Federal Bureau of Investigation participating in such program, the elements of the training program, and the subject matters covered by the program.
(4) With respect to the organized crime plan authorized under section 402(b), the number of organized crime investigations and prosecutions resulting from such plan.
(5) With respect to the authorizations under section 403—
(A) the number of law enforcement officers hired and the number trained;
(B) the number and type of investigations and prosecutions resulting from the hiring and training of such law enforcement officers;
(C) the defendants involved in any such prosecutions;
(D) any penalties imposed in each such successful prosecution;
(E) the advanced tools of forensic science procured to investigate, prosecute, and study computer hacking or intellectual property crimes; and
(F) the number and type of investigations and prosecutions in such tools were used.
(6) Any other information that the Attorney General may consider relevant to inform Congress on the effective use of the resources authorized under sections 401, 402, and 403.
(7) A summary of the efforts, activities, and resources the Department of Justice has allocated to the enforcement, investigation, and prosecution of intellectual property crimes, including—
(A) a review of the policies and efforts of the Department of Justice related to the prevention and investigation of intellectual property crimes, including efforts at the Office of Justice Programs, the Criminal Division of the Department of Justice, the Executive Office of United States Attorneys, the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of Legal Policy, and any other agency or bureau of the Department of Justice whose activities relate to intellectual property;
(B) a summary of the overall successes and failures of such policies and efforts;
(C) a review of the investigative and prosecution activity of the Department of Justice with respect to intellectual property crimes, including—
(i) the number of investigations initiated related to such crimes;
(ii) the number of arrests related to such crimes; and
(iii) the number of prosecutions for such crimes, including—
(I) the number of defendants involved in such prosecutions;
(II) whether the prosecution resulted in a conviction; and
(III) the sentence and the statutory maximum for such crime, as well as the average sentence imposed for such crime; and
(D) a Department-wide assessment of the staff, financial resources, and other resources (such as time, technology, and training) devoted to the enforcement, investigation, and prosecution of intellectual property crimes, including the number of investigators, prosecutors, and forensic specialists dedicated to investigating and prosecuting intellectual property crimes.
(8) A summary of the efforts, activities, and resources that the Department of Justice has taken to—
(A) minimize duplicating the efforts, materials, facilities, and procedures of any other Federal agency responsible for the enforcement, investigation, or prosecution of intellectual property crimes; and
(B) enhance the efficiency and consistency with which Federal funds and resources are expended to enforce, investigate, or prosecute intellectual property crimes, including the extent to which the Department has utilized existing
personnel, materials, technologies, and facilities.
(b) INITIAL REPORT OF THE ATTORNEY GENERAL.—The first report required to be submitted by the Attorney General under subsection (a) shall include a summary of the efforts, activities, and resources the Department of Justice has allocated in the 5 years prior to the date of enactment of this Act, as well as the 1-year period following such date of enactment, to the enforcement, investigation, and prosecution of intellectual property crimes, including—
(1) a review of the policies and efforts of the Department of Justice related to the prevention and investigation of intellectual property crimes, including efforts at the Office of Justice Programs, the Criminal Division of the Department of Justice, the Executive Office of United States Attorneys, the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of Legal Policy, and any other agency or bureau of the Department of Justice whose activities relate to intellectual property;
(2) a summary of the overall successes and failures of such policies and efforts;
(3) a review of the investigative and prosecution activity of the Department of Justice with respect to intellectual property crimes, including—
the number of investigations initiated related to such crimes;
the number of arrests related to such crimes; and
the number of prosecutions for such crimes, including—
(i) the number of defendants involved in such prosecutions;
(ii) whether the prosecution resulted in a conviction; and
(iii) the sentence and the statutory maximum for such crime, as well as the average sentence imposed for such crime; and
(4) a Department-wide assessment of the staff, financial resources, and other resources (such as time, technology, and training) devoted to the enforcement, investigation, and prosecution of intellectual property crimes, including the number of investigators, prosecutors, and forensic specialists dedicated to investigating and prosecuting intellectual property crimes.
(c) REPORT OF THE FBI—Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Director of the Federal Bureau of Investigation shall submit a report to Congress on actions taken to carry out this title. The initial report required under this subsection shall be submitted by May 1, 2009. All subsequent annual reports shall be submitted by May 1st of each fiscal year thereafter. The report required under this subsection may be submitted as part of the annual performance report of the Department of Justice, and shall
include—
(1) a review of the policies and efforts of the Bureau related to the prevention and investigation of intellectual property crimes;
(2) a summary of the overall successes and failures of such policies and efforts;
(3) a review of the investigative and prosecution activity of the Bureau with respect to intellectual property crimes, including—
(A) the number of investigations initiated related to such crimes;
(B) the number of arrests related to such crimes; and
(C) the number of prosecutions for such crimes, including—
(i) the number of defendants involved in such prosecutions;
(ii) whether the prosecution resulted in a conviction; and
(iii) the sentence and the statutory maximum for such crime, as well as the average sentence imposed for such crime; and
(4) a Bureau-wide assessment of the staff, financial resources, and other resources (such as time, technology, and training) devoted to the enforcement, investigation, and prosecution of intellectual property crimes, including the number of investigators, prosecutors, and forensic specialists dedicated to investigating and prosecuting intellectual property crimes.
(d) INITIAL REPORT OF THE FBI —The first report required to be submitted by the Director of the Federal Bureau of Investigation under subsection (c) shall include a summary of the efforts, activities, and resources the Federal Bureau of Investigation has allocated in the 5 years prior to the date of enactment of this Act, as well as the 1-year period following such date of enactment to the enforcement, investigation, and prosecution of intellectual property crimes, including—
(1) a review of the policies and efforts of the Bureau related to the prevention and investigation of intellectual property crimes;
(2) a summary of the overall successes and failures of such policies and efforts;
(3) a review of the investigative and prosecution activity of the Bureau with respect to intellectual property crimes, including—
(A) the number of investigations initiated related to such crimes;
(B) the number of arrests related to such crimes; and
(C) the number of prosecutions for such crimes, including—
the number of defendants involved in such prosecutions;
whether the prosecution resulted in a conviction; and
(iii) the sentence and the statutory maximum for such crime, as well as the average sentence imposed for such crime; and
(4) a Bureau-wide assessment of the staff, financial resources, and other resources (such as time, technology, and training) devoted to the enforcement, investigation, and prosecution of intellectual property crimes, including the number of investigators, prosecutors, and forensic specialists dedicated to investigating and prosecuting intellectual property crimes.
TITLE V—MISCELLANEOUS
SEC. 501. GAO STUDY ON PROTECTION OF INTELLECTUAL PROPERTY OF MANUFACTURERS.
(a) STUDY.—The Comptroller General of the United States shall conduct a study to help determine how the Federal Government could better protect the intellectual property of manufacturers by quantification of the impacts of imported and domestic counterfeit goods on—
(1) the manufacturing industry in the United States; and
(2) the overall economy of the United States.
(b) CONTENTS.—In conducting the study required under subsection (a), the Comptroller General shall examine—
(1) the extent that counterfeit manufactured goods are actively being trafficked in and imported into the United States;
(2) the impacts on domestic manufacturers in the United States of current law regarding defending intellectual property, including patent, trademark, and copyright protections;
(3) the nature and scope of current statutory law and case law regarding protecting trade dress from being illegally copied;
(4) the extent which such laws are being used to investigate and prosecute acts of trafficking in counterfeit manufactured goods;
(5) any effective practices or procedures that are protecting all types of intellectual property; and
(6) any changes to current statutes or rules that would need to be implemented to more effectively protect the intellectual property rights of manufacturers.
(c) REPORT.—Not later than 1 year after the date of the enactment of this Act, the Comptroller General shall submit to Congress a report on the results of the study required under subsection (a).
SEC. 502. GAO AUDIT AND REPORT ON NONDUPLICATION AND EFFICIENCY.
Not later than 2 years after the date of enactment of this Act, the Comptroller General shall conduct an audit and submit a report to the Committee on the Judiciary of the Senate and to the Committee on the Judiciary of the House of Representatives on—
(1) the efforts, activities, and actions of the Intellectual Property Enforcement Coordinator and the Attorney General in achieving the goals and purposes of this Act, as well as in carrying out any responsibilities or duties assigned to each such individual or agency under this Act;
(2) any possible legislative, administrative, or regulatory changes that Comptroller General recommends be taken by or on behalf of the Intellectual Property Enforcement Coordinator or the Attorney General to better achieve such goals and purposes, and to more effectively carry out such responsibilities and duties;
(3) the effectiveness of any actions taken and efforts made by the Intellectual Property Enforcement Coordinator and the Attorney General to—
(A) minimize duplicating the efforts, materials, facilities, and procedures of any other Federal agency responsible for the enforcement, investigation, or prosecution of intellectual property crimes; and
(B) enhance the efficiency and consistency with which Federal funds and resources are expended to enforce, investigate, or prosecute intellectual property crimes, including whether the IPEC has utilized existing personnel, materials, technologies, and facilities, such as the National Intellectual Property Rights Coordination Center established at the Department of Homeland Security; and
(4) any actions or efforts that the Comptroller General recommends be taken by or on behalf of the Intellectual Property Enforcement Coordinator and the Attorney General to reduce duplication of efforts and increase the efficiency and consistency with which Federal funds and resources are expended to enforce, investigate, or prosecute intellectual property crimes.
SEC. 503. SENSE OF CONGRESS.
It is the sense of Congress that—
(1) the United States intellectual property industries have created millions of high-skill, high- paying United States jobs and pay billions of dollars in annual United States tax revenues;
(2) the United States intellectual property industries continue to represent a major source of creativity and innovation, business start-ups, skilled job creation, exports, economic growth, and competitiveness;
(3) counterfeiting and infringement results in billions of dollars in lost revenue for United States companies each year and even greater losses to the United States economy in terms of reduced job growth, exports, and competitiveness;
(4) the growing number of willful violations of existing Federal criminal laws involving counterfeiting and infringement by actors in the United States and, increasingly, by foreignbased individuals and entities is a serious threat to the longterm vitality of the United States economy and the future competitiveness of United States industry;
(5) terrorists and organized crime utilize piracy, counterfeiting, and infringement to fund some of their activities;
(6) effective criminal enforcement of the intellectual property laws against violations in all categories of works should be among the highest priorities of the Attorney General;
(7) with respect to all crimes related to the theft of intellectual property, the Attorney General shall give priority to cases with a nexus to terrorism and organized crime; and
(8) with respect to criminal counterfeiting and infringement of computer software, including those by foreign-owned or foreign-controlled entities, the Attorney General should give priority to cases—
(A) involving the willful theft of intellectual property for purposes of commercial advantage or private financial gain;
(B) where the theft of intellectual property is central to the sustainability and viability of the commercial activity of the enterprise (or subsidiary) involved in the violation;
(C) where the counterfeited or infringing goods or services enables the enterprise to unfairly compete against the legitimate rights holder; or
(D) where there is actual knowledge of the theft of intellectual property by the directors or officers of the enterprise.
Approved October 13, 2008.
LEGISLATIVE HISTORY—S. 3325: CONGRESSIONAL RECORD, Vol. 154 (2008): Sept. 26, considered and passed Senate. Sept. 27, 28, considered and passed House.
