Tomorrow, the Senate Judiciary Committee will consider President Obama's nomination of Ms. Victoria Espinel for the office of "Intellectual Property Enforcement Coordinator" (the "Coordinator"). This is a new position, created by the recently enacted Pro-IP Act, which I discussed here.
Personally, I conclude that President Obama selected an excellent nominee. Indeed, I can't think of anyone better endowed with the experience, expertise, and judgment needed to be a successful Coordinator.
The job of the Coordinator will be challenging. Essentially, the Coordinator must tackle a rather daunting administrative problem: Over the past two decades, intellectual property rights have become very important to a vast range of domestic interests and a critical component of U.S. foreign policy and trade policy. As a result, many federal agencies--from the Department of Agriculture to the Department of State--now have "IP Offices" pursuing various IP-related programs and initiatives in a largely uncoordinated fashion. USPTO acts as an expert advisor to these various agencies, but not as their coordinator.
Three serious risks emerge from this situation. First, there is the risk of self-contradiction: Agency A says "X," while Agency B says "not X," and Agency C says "Y." Second, there is the risk of needless duplication of effort or creation of error: if four different agencies are trying to summarize how the ISP safe-harbor provisions work, duplication of effort is inevitable and the odds of material error increase. Third, there is the risk that IP-related policy lacks any overall vision or guidance.
In effect, the Coordinator is charged with managing and reducing these risks. But the Coordinator is not a "czar" in any sense of that word: He or she will not be issuing binding orders to the vast array of Administrators, Representatives, Commissioners and Secretaries whose missions implicate aspects of IP law and policy. Rather, the Coordinator must coordinate by persuading, informing, and assisting a diverse range of federal entities. In the past, the importance of IP rights to U.S. trade policy made the Office of the United States Trade Representative (USTR) a particularly important voice in overall U.S. policy towards intellectual-property rights. Consequently, the potential for conflict between the Coordinator and other federal entities may be more pronounced in the case of USTR.
All of this would suggest that an ideal nominee for the role of IP Coordinator would possess (1) deep familiarity with the various agencies and personnel now involved in aspects of intellectual property law and policy; (2) proven and widely respected expertise and judgment, and (3) close connections to USTR.
From personal experience, I can report that President Obama's nominee for IP Coordinator, Victoria Espinel, satisfies all three criteria. During the last Administration, I served as an advisor on copyright law and policy in USPTO's Office of International Relations. Because much of my work involved either our always colorful IP relations with China or the U.S.-Korea Free Trade Agreement, I often worked closely with the excellent IPR team at USTR.
The leader of USTR's IP-related efforts was the Assistant United States Trade Representative for Intellectual Property and Innovation, Victoria Espinel. She was very widely respected because she was hard-working, substantive, pragmatic and sensible--she could analyze details with the best of the experts and then explain their implications in plain terms to politicians and foreign officials.
Turns out, she also proves another point that I have made: I have always argued that one good thing about intellectual property law and policy is that it is almost uniquely non-partisan. (There are divisions, of course, but they do not break down along any party or political lines that I have can discern.)
Consequently, I had never asked nor cared what Ms. Espinel's political affiliations might be--she was really good, and that was what mattered. Today, that is still what matters. I thus congratulate the President for selecting such a qualified nominee for the office of Intellectual Property Enforcement Coordinator.