16 November, 2016

A New Era - What Does the Donald Trump Presidency Potentially Mean for IP?

Now that the dust has settled in the long and arduous process that is the American presidential race, it is time to look ahead to the future and the possible implications of the Donald Trump presidency. While it can be appreciated that the next 4 (or even 8) years will be ones of change one way or the other, this writer is not concerned with the wider implications, but only of those impacting intellectual property law. The 45th president's particular focus on this area of law still remains very murky; however, his position has been stated in some amount of press and campaign materials, which will form a basis for this discussion.

In his own policy manifesto for his campaign, Mr Trump set out that he will "...use every lawful presidential power to remedy trade disputes if China does not stop its illegal activities, including its theft of American trade secrets - including the application of tariffs consistent with Section 201 and 301 of the Trade Act of 1974 and Section 232 of the Trade Expansion Act of 1962". Clearly his approach echoes largely a trade-based plan, rather than the change of laws and regulations surrounding IP in the United States. Arguably, these are quite strong deterrents for the infringement of intellectual property rights in China, but these measures have had little effect before due to the massive presence of Chinese manufacturing in the world stage (although the country has taken significant steps forward to better enforce IP rights). Recent changes to the Chinese IP law landscape have possibly mitigated the current issues highlighted by the Trump campaign, but this will undoubtedly not deter him should the president want to go after China in a more direct fashion.

Aside from legislative or policy changes, his 100 day plan encompasses withdrawal from the Trans-Pacific Partnership and the renegotiation of bilateral trade agreements, many of which will touch on IP in one way or another. This will have drastic effects on US trade relations, but the implications for IP will be minimal.

The face of an uncertain future for IP
Some have argued that, per his close ties to the entertainment industry, that copyright regulations would be tightened and copyright enforcement made stricter, with higher sentencing and easier claims by rightsholders (in this writer's thinking anyway). Similarly, his position on copyright might impact the regulation of the Internet, with broad-ranging implications should it be used as a weapon to combat against those who infringe copyright online. Overall Donald Trump has been quite quiet in his views on intellectual property and what his concrete plans are during his presidency.

This can be compared with Hillary Clinton's Initiative on Technology & Innovation, which set out a myriad of action points in this sphere, but specifically targeted copyright as a sub-point. In her initiative she set out to "...modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system.  It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding". Her plan seemed to focus more on accessibility than enforcement, but echoes vagueness, as expected in a political campaign. Similarly, she aimed to take on patents with "...reforms to the patent system to reduce excessive patent litigation and strengthen the capacity of the Patent and Trademark Office". Clearly this was to reduce frivolous patent litigation by patent trolls, but more particular reforms were left to be sorted if she were ultimately elected. Mrs Clinton was overall much more up-front with her plans and vision for IP, but even so it left much to decipher as to what might actually happen, rather than what might.

As one can appreciate the future developments of this coming presidency are unknown, and while candidates often give indications as to their stances or policy intentions, these don't necessarily stick once they reach the Oval Office. This writer will remain optimistic, but does wonder whether a more pro-rightsholder position will become the norm, with a clear reduction in fair use and other legitimate uses of copyright materials, especially in an online environment. Odds are the trajectory that IP legislation was already headed will most likely remain the same irrespective of who the president is, as a swooping overhaul of this would lead to too much uncertainty and possibly a negative impact in IP and innovation as a whole (with the rapid pace of technological development making things even worse if not kept up with). While the media has calmed down after the election, it will surely be quite the next 4 years to come.

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