What Is an IP Czar To Do … For the Music Industry

by Chris Horsnell on November 1st, 2008

Czar, n., .. (4) any person exercising great authority or power in a particular field. For better or for worse, we have had governmental executives dubbed by the media as the Education Czar and the Drug Czar, and soon we will have an IP Czar.

In late October, the Prioritizing Resources and Organization for Intellectual Property Act of 2008 was signed into law by President Bush. With the wry sense of humor oft employed by Congress (see, the PATRIOT Act and the Fairness in Music Licensing Act), this will probably become known as the PRO-IP Act. The PRO-IP Act throws the average members of the content creation community (recording artists, songwriters, etc.) a few scraps, such as (a) adding written records to the list of items subject to impoundment during infringement cases, (b) increasing statutory damage amounts in trademark actions and (c) including exportation without permission as an infringing act, but its primary thrust is the management and prosecution of criminal infringement.

The PRO-IP Act requires the President to appoint an Intellectual Property Enforcement Coordinator (the IP Czar) to serve within the Executive Office of the President. The primary duties of the IP Czar, as set forth in the Act, will be to coordinate the development and implementation of a plan to address counterfeiting and criminal IP infringement, both domestic and foreign, and to make recommendations for improvements to federal intellectual property laws.

However, the real, unspoken power of the IP Czar may be found in the catch-all duty to “carry out such other functions as the President may direct.” The IP Czar will be the primary advisor to the President on intellectual property matters and could very well become the principal shaper of future United States IP policy.

The Constitution grants Congress the power to “promote the progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” “Science” refers to the Writings of Authors (copyright laws) while “useful Arts” refers to Discoveries of Inventors (patent laws). It is with no lack of irony that the 21st century “science” of technology is driving the assault on the 18th century “Science” of creative expression.

Since the advent of the Internet, a battle has raged between content creators, who desire to control the use of their creative content and be compensated for it, and content aggregators, who desire to accumulate and exploit content on the Internet at the least possible cost. Couched in terms of fair use, unconstitutional monopoly, creative innovation and free speech, aggregators have tried to limit and restrict copyright protection as much as possible. Much like the Federation at the end of the first Star Wars movie (Part IV), the content creators have initially prevailed, but the aggregators have not been defeated and are regrouping. The conflict continues.

Thus far the battle has been waged in the courts of law and public opinion without significant guidance from the White House. This could change with the appointment of the IP Czar. There is a precarious balance between our child-like wonderment at technological innovation and the need to protect and encourage the creative process. Executive action could shift that balance dramatically.

The question remains, what can the IP Czar do for the music industry. Increase criminal prosecutions? Chair another feckless government study committee that will make recommendations that are never acted upon? Brow beat our trading partners into complying with their own laws? While these may all be functions of the job, such action does not really advance the cause of the music industry.

The framers of the Constitution recognized that without appropriate financial incentive the creative process, along with the creators, will wither and die. That incentive was to be assured by providing protection for the fruits of their creative labors through our copyright laws. We simply need an IP Czar that will take their 18th century wisdom and apply it to our 21st century technological reality. If the newest U.S. Czar can do that, this most recent action will truly be PRO-IP.

First published in Music Row Magazine, www.musicrow.com.