28 September 2013

US IP Commission

Catching up with the report [PDF] of The Commission on the Theft of American Intellectual Property, a nongovernment entity associated with The National Bureau of Asian Research and concerned to
  • Document and assess the causes, scale, and other major dimensions of international intellectual property theft as they affect the United States 
  • Document and assess the role of China in international intellectual property theft 
  • Propose appropriate U.S. policy responses that would mitigate ongoing and future damage and obtain greater enforcement of intellectual property rights by China and other infringers.
Some sense of the document is provided by the over-enthusiastic Acknowledgements -
We present this report to the American people for their consideration. The Commission on the Theft of American Intellectual Property reached consensus on its insights and recommendations after a thorough and independent investigation of one of the most pressing issues of economic and national security facing our country. We investigated the scale and complexities of international intellectual property (IP) theft, the driving forces behind it, and its consequences for Americans. We collected the evidence, formed assessments, and developed a set of policy recommendations for Congress and the Administration.
This Commission is composed of extraordinary members. We are indebted to our fellow Commissioners for their contributions. They have brought to the Commission diligence, selfless bipartisanship, and tremendous expertise and wisdom. Coming from industry, defense, advanced education, and politics, and with senior-level diplomatic, national security, legal, and other public policy experience, they span the spectrum of American professional life that has huge stakes in IP rights. They have our deepest appreciation.
The Commission reached out to many remarkable specialists and leaders who shared their experiences and perspectives as we developed an understanding of the problem and a very rich set of policy recommendations. Business leaders with whom we spoke provided inputs anonymously; they represent a cross-section of companies that deal with the problem of IP theft, as well as trade associations with major interests in the problem and its solutions. Other interlocutors were officials from Republican and Democratic administrations, policy analysts, lawyers, economists, international trade experts, and international relations and area specialists. We benefited from the efforts of those in the U.S. government who have been working hard on these issues for years. We thank them for their work and hope that our shining the spotlight on the facts and recommending strong policy make their goals more achievable.
The Commission’s staff was exemplary ...
Enough with with the extraordinary exemplary selfless tremendous wonderful amazing diligent etc.

The Commission reports that
The scale of international theft of American intellectual property (IP) is unprecedented—hundreds of billions of dollars per year, on the order of the size of U.S. exports to Asia. The effects of this theft are twofold. The first is the tremendous loss of revenue and reward for those who made the inventions or who have purchased licenses to provide goods and services based on them, as well as of the jobs associated with those losses. American companies of all sizes are victimized. The second and even more pernicious effect is that illegal theft of intellectual property is undermining both the means and the incentive for entrepreneurs to innovate, which will slow the development of new inventions and industries that can further expand the world economy and continue to raise the prosperity and quality of life for everyone. Unless current trends are reversed, there is a risk of stifling innovation, with adverse consequences for both developed and still developing countries. The American response to date of hectoring governments and prosecuting individuals has been utterly inadequate to deal with the problem.
China has been the principal focus of U.S. intellectual property rights (IPR) policy for many years. As its economy developed, China built a sophisticated body of law that includes IPR protection. It has a vibrant, although flawed, patent system. For a variety of historical reasons, however, as well as because of economic and commercial practices and official policies aimed to favor Chinese entities and spur economic growth and technological advancement, China is the world’s largest source of IP theft. The evidence presented here is a compilation of the best governmental and private studies undertaken to date, interviews, individual cases, assessments of the impact of IP theft on the American economy, and examinations of PRC policies. There is now enough information, in our view, to warrant urgent consideration of the findings and recommendations that follow. The IP Commission has met numerous times over the course of an eleven-month period; heard from experts and specialists on international law, the American legal system, cybersecurity, and the economy, as well as from industry representatives and many others; and conducted research on a range of topics. The Commission has also reviewed the current actions being taken by the U.S. government and international organizations like the World Trade Organization (WTO) and the recommendations of official and private studies of the problem. Both current and proposed actions generally emphasize more intensive government-to-government communication requesting foreign governments to rein in their companies and other actors. The Commission judges that the scope of the problem requires stronger action, involving swifter and more stringent penalties for IP theft. The Commission believes that over the long term, as their companies mature and have trade secrets to protect, China and other leading infringers will develop adequate legal regimes to protect the intellectual property of international companies as well as domestic companies. The United States cannot afford to wait for that process, however, and needs to take action in the near term to protect its own economic interests.
The Commissioners unanimously advocate the recommendations contained within this report.
The Key Findings are
The Impact of International IP Theft on the American Economy
Hundreds of billions of dollars per year. The annual losses are likely to be comparable to the current annual level of U.S. exports to Asia—over $300 billion. The exact figure is unknowable, but private and governmental studies tend to understate the impacts due to inadequacies in data or scope. The members of the Commission agree with the assessment by the Commander of the United States Cyber Command and Director of the National Security Agency, General Keith Alexander, that the ongoing theft of IP is “the greatest transfer of wealth in history.” Millions of jobs. If IP were to receive the same protection overseas that it does here, the American economy would add millions of jobs. A drag on U.S. GDP growth. Better protection of IP would encourage significantly more R&D investment and economic growth. Innovation. The incentive to innovate drives productivity growth and the advancements that improve the quality of life. The threat of IP theft diminishes that incentive.
Long Supply Chains Pose a Major Challenge
Stolen IP represents a subsidy to foreign suppliers that do not have to bear the costs of developing or licensing it. In China, where many overseas supply chains extend, even ethical multinational companies frequently procure counterfeit items or items whose manufacture benefits from stolen IP, including proprietary business processes, counterfeited machine tools, pirated software, etc.
International IP Theft Is Not Just a Problem in China
Russia, India, and other countries constitute important actors in a worldwide challenge. Many issues are the same: poor legal environments for IPR, protectionist industrial policies, and a sense that IP theft is justified by a playing field that benefits developed countries.
The Role of China
  • Between 50% and 80% of the problem. The major studies range in their estimates of China’s share of international IP theft; many are roughly 70%, but in specific industries we see a broader range.
  • The evidence. Evidence comes from disparate sources: the portion of court cases in which China is the destination for stolen IP, reports by the U.S. Trade Representative, studies from specialized firms and industry groups, and studies sponsored by the U.S. government.
  • Why does China stand out? A core component of China’s successful growth strategy is acquiring science and technology. It does this in part by legal means—imports, foreign domestic investment, licensing, and joint ventures—but also by means that are illegal. National industrial policy goals in China encourage IP theft, and an extraordinary number of Chinese in business and government entities are engaged in this practice. There are also weaknesses and biases in the legal and patent systems that lessen the protection of foreign IP. In addition, other policies weaken IPR, from mandating technology standards that favor domestic suppliers to leveraging access to the Chinese market for foreign companies’ technologies.
Existing Remedies Are Not Keeping Up
  • Short product life cycles. Even in the best judicial systems, the slow pace of legal remedies for IP infringement does not meet the needs of companies whose products have rapid product life and profit cycles. 
  • Inadequate institutional capacity. Particularly in developing countries there is inadequate institutional capacity to handle IP-infringement cases—for example, a shortage of trained judges. China’s approach to IPR is evolving too slowly. The improvements over the years have not produced meaningful protection for American IP, nor is there evidence that substantial improvement is imminent. Indeed, cyberattacks are increasing. 
  • Limitations in trade agreements. Although there appears to be a great deal of activity on the part of the United States through the WTO, there are also significant problems in the process that have made it impossible to obtain effective resolutions. Bilateral and regional free trade agreements are not a panacea either. Steps undertaken by Congress and the administration are inadequate. Actions have been taken recently both to elevate the problem as a policy priority and to tighten U.S. economic espionage law. These are positive steps. A bill in Congress that would allow greater information-sharing between government and private business needs to be enacted and amended if needed. All of these efforts, however, will not change the underlying incentive structure for IP thieves and will therefore have limited effect.
The Commission responds that
 Strategy With U.S. companies suffering losses and American workers losing jobs, and our innovative economy and security thus at stake, more effective measures are required. The problem is compounded by newer methods of stealing IP, including cyber methods. Of the cyber threat, President Obama has said that it is “one of the most serious economic and national security challenges we face.” Network attacks, together with other forms of IP attacks, are doing great damage to the United States, and constitute an issue of the first order in U.S.-China relations. The Commission regards changing the incentive structure for IP thieves to be a paramount goal in reducing the scale and scope of IP theft. Simply put, the conditions that encourage foreign companies to steal American intellectual property must be changed in large part by making theft unprofitable. The starting point is the recognition that access to the American market is the single most important goal of foreign firms seeking to be international corporate leaders. Companies that seek access by using stolen intellectual property have an unearned competitive advantage, and because the costs of stealing are negligible or nonexistent, they continue to operate with impunity. Cheating has become commonplace. The Commission regards changing the cost-benefit calculus for foreign entities that steal American intellectual property to be its principal policy focus. IP theft needs to have consequences, with costs sufficiently high that state and corporate behavior and attitudes that support such theft are fundamentally changed. Beyond changing behavior in the short term, the Commission regards strengthening the legal frameworks that govern the protection of IP to be a set of important medium-term recommendations. From that point, and over the longer term, the Commission judges that capacity-building in countries, especially China, that have poor IP-protection standards is of critical importance.
 The  recommends "short-term, medium-term, and long-term remedies".
Short-term measures incorporate the immediate steps that policymakers should take to stem the tide of IP theft and include the following:
  • Designate the national security advisor as the principal policy coordinator for all actions on the protection of American IP. The theft of American IP poses enormous challenges to national security and the welfare of the nation. These challenges require the direct involvement of the president’s principal advisor on national security issues to ensure that they receive the proper priority and the full engagement of the U.S. government. 
  • Provide statutory responsibility and authority to the secretary of commerce to serve as the principal official to manage all aspects of IP protection. The secretary of commerce has sufficient human, budgetary, and investigative resources to address the full range of IP protection issues. If given the statutory authority to protect American IP, we anticipate a robust set of responses. 
  • Strengthen the International Trade Commission’s 337 process to sequester goods containing stolen IP. The current 337 process is not fast enough to prevent goods containing or benefitting from stolen IP from entering the United States. A speedier process, managed by a strong interagency group led by the secretary of commerce, can both prevent counterfeit goods from entering the United States and serve as a deterrent to future offenders. The speedier process would impound imports suspected of containing or benefitting from IP theft based on probable cause. A subsequent investigation would allow the importing company to prove that the goods did not contain or benefit from stolen IP. 
  • Empower the secretary of the treasury, on the recommendation of the secretary of commerce, to deny the use of the American banking system to foreign companies that repeatedly use or benefit from the theft of American IP. Access to the American market is a principal interest of firms desiring to become global industrial leaders. Protecting American IP should be a precondition for operating in the American market. Failure to do so ought to result in sanctions on bank activities, essentially curtailing U.S. operations. 
  • Increase Department of Justice and Federal Bureau of Investigation resources to investigate and prosecute cases of trade-secret theft, especially those enabled by cyber means. The increase in trade-secret theft, in many ways enabled by emerging cyber capabilities, requires a significant increase in investigative and prosecutorial resources. 
  • Consider the degree of protection afforded to American companies’ IP a criterion for approving major foreign investments in the United States under the Committee on Foreign Investment in the U.S. (CFIUS) process. CFIUS assesses national security risk and national security implications of proposed transactions involving U.S. companies. Adding an additional evaluative criterion to the review process that assesses the manner in which a foreign company obtains IP would help improve IP-protection environments. 
  • Enforce strict supply-chain accountability for the U.S. government. Establishing control and auditing measures that enable suppliers to the U.S. government to guarantee the strongest IP-protection standards should be the “new normal” that the U.S. government demands. 
  • Require the Securities and Exchange Commission to judge whether companies’ use of stolen IP is a material condition that ought to be publicly reported. Corporate leaders will take seriously the protection of IP, including in their supply chains, if reporting IP theft in disclosure statements and reports to boards of directors and shareholders is mandatory. 
  • Greatly expand the number of green cards available to foreign students who earn science, technology, engineering, and mathematics degrees in American universities and who have a job offer in their field upon graduation. In too many cases, American universities train the best minds of foreign countries, who then return home with a great deal of IP knowledge and use it to compete with American companies. Many of these graduates have job offers and would gladly stay in the United States if afforded the opportunity. Legislative and legal reforms represent actions that aim to have positive effects over the medium term.
To build a more sustainable legal framework to protect American IP, Congress and the administration should take the following actions:
  • Amend the Economic Espionage Act (EEA) to provide a federal private right of action for tradesecret theft. If companies or individuals can sue for damages due to the theft of IP, especially trade secrets, this will both punish bad behavior and deter future theft. 
  • Make the Court of Appeals for the Federal Circuit (CAFC) the appellate court for all actions under the EEA. The CAFC is the appellate court for all International Trade Commission cases and has accumulated the most expertise of any appellate court on IP issues. It is thus in the best position to serve as the appellate court for all matters under the EEA. 
  • Instruct the Federal Trade Commission (FTC) to obtain meaningful sanctions against foreign companies using stolen IP. Having demonstrated that foreign companies have stolen IP, the FTC can take sanctions against those companies. 
  • Strengthen American diplomatic priorities in the protection of American IP. American ambassadors ought to be assessed on protecting intellectual property, as they are now assessed on promoting trade and exports. Raising the rank of IP attach├ęs in countries in which theft is the most serious enhances their ability to protect American IP.
Over the longer term, the Commission recommends the following capacity-building measures:
  • Build institutions in priority countries that contribute toward a “rule of law” environment in ways that protect IP. Legal and judicial exchanges, as well as training programs sponsored by elements of the U.S. government—including the U.S. Patent and Trademark Office—will pay long-term dividends in the protection of IP. 
  • Develop a program that encourages technological innovation to improve the ability to detect counterfeit goods. Prize competitions have proved to be both meaningful and cost-effective ways to rapidly develop and assess new technologies. New technologies, either to validate the integrity of goods or to detect fraud, would both deter bad behavior and serve as models for the creation of new IP. 
  • Ensure that top U.S. officials from all agencies push to move China, in particular, beyond a policy of indigenous innovation toward becoming a self-innovating economy. China’s various industrial policies, including indigenous innovation, serve to dampen the country’s own technological advancements. Utility, or “petty,” patents are a particularly pernicious form of Chinese IP behavior and need to cease being abused. 
  • Develop IP “centers of excellence” on a regional basis within China and other priority countries. This policy aims to show local and provincial leaders that protecting IP can enhance inward foreign investment; this policy both strengthens the protection of IP and benefits the promotion possibilities of officials whose economic goals are achieved by producing foreign investment. 
  • Establish in the private, nonprofit sector an assessment or rating system of levels of IP legal protection, beginning in China but extending to other countries as well. One of the tools necessary to develop “centers of excellence” is a rating system that shows the best—and worst—geographical areas for the protection of IP.
The Commission recommends the following measures to address cybersecurity:
  • Implement prudent vulnerability-mitigation measures. This recommendation provides a summary of the security activities that ought to be undertaken by companies. Activities such as network surveillance, sequestering of critical information, and the use of redundant firewalls are proven and effective vulnerability-mitigation measures. 
  • Support American companies and technology that can both identify and recover IP stolen through cyber means. Without damaging the intruder’s own network, companies that experience cyber theft ought to be able to retrieve their electronic files or prevent the exploitation of their stolen information. 
  • Reconcile necessary changes in the law with a changing technical environment. Both technology and law must be developed to implement a range of more aggressive measures that identify and penalize illegal intruders into proprietary networks, but do not cause damage to third parties. Only when the danger of hacking into a company’s network and exfiltrating trade secrets exceeds the rewards will such theft be reduced from a threat to a nuisance.