IP Matters

The Trump administration has been very active in AI policy since he assumed office. Nearly a dozen Executive Orders have emanated from the White House, and on July 23^rd the President gave a speech introducing the administration’s 28-page “AI Action Plan.”

There’s a lot of good in the plan, and this post is not intended to be a detailed critique of the plan. A federal pre-emption of state AI regulation is an important feature, although the President can’t just declare it—that requires federal legislation. A provision banning state AI regulation was in the penultimate version of the “One Big Beautiful Bill Act” (OBBBA) but was stricken at the last minute at the request of Tennessee Sen. Marsha Blackburn.

Copyright protection has been a hallmark of Sen. Blackburn’s public service, and for good reasons. Not only does represent the songwriting capital of the world, Nashville, but copyright protection is a critically important area of policy. Trump is right, and Sen. Blackburn is wrong, on federal preemption of state AI regulation.

We at IPI take a backseat to no one in the defense of copyright, a topic we’ve covered for almost two decades. IPI is an accredited NGO with the World Intellectual Property Organization (WIPO) in Geneva, Switzerland, and for several years IPI sponsored the leading World IP Day (April 26) policy event in Washington DC.

So we’re big on copyright.

All of copyright is a balancing act between the rights of creators and ease of public access (notice I didn’t say “the rights of consumers,” because no one has a right to someone else’s property). But there can’t be any discussion of balance until the fundamental right of creators to own and control their creations is acknowledged, and certainly not disregarded.

That’s why President Trump’s comments on copyright and AI are so troubling. No one expects Trump to be an expert on intellectual property law, but the sentiments he expressed would be very dangerous to the U.S. economy.

Below is a transcript of the portion of President Trump's July 23, 2025 speech on his administration's new AI Action Plan. This excerpt captures his comments about copyright and AI.

. . . 

"And that begins with a commonsense application of artificial and intellectual property rules.

"It’s so important. You can’t be expected to have a successful AI program where every single article, book or anything else that you’ve read or studied, you’re supposed to pay for. “Gee, I read a book. I’m supposed to pay somebody.”

"And we appreciate that, but you just can’t do it because it’s not doable.

"And if you’re going to try and do that, you’re not going to have a successful program. I think most of the people in the room know what I mean.

"When a person reads a book or an article, you’ve gained great knowledge. That does not mean you’re violating copyright laws or have to make deals with every content provider. And that’s a big thing that you’re working on right now. I know.

"But you just can’t do it. China’s not doing it. And if you’re going to be beating China—And right now, we’re leading China very substantially in AI. Very, very substantially. And nobody’s seen the amount of work that’s going to be bursting upon the scene

"But you have to be able to play by the same set of rules. So when you have something, when you read something, and it goes into this vast intelligence machine, we’ll call it, you cannot expect to every time, every single time say, “Oh let’s pay this one that much. Let’s pay this one.” Just doesn’t work that way. Of course, you can’t copy or plagiarize an article, but if you read an article and learn from it, we have to allow AI to use that pool of knowledge without going through the complexity of contract negotiations, of which there would be thousands for every time we use AI."

Monday May 3^rd I was honored to again have a piece published in the Wall Street Journal. The topic of this one was the “Right to Repair” movement, and why forcing manufacturers to supply details about their technologies, whether covered by patent, copyright, or trade secret, would be harmful to innovation.

While the piece appeared in the May 3^rd edition, I knew it had gone live Sunday evening around 8pm because I suddenly started getting vitriolic Twitter traffic in response to it. And it’s still going on strong 24 hours later. I have had many hundreds of tweets trashing me and the piece, questioning my motives, my intelligence, my knowledge of the issue, my research skills, my honesty, my integrity, my Christianity (yes), etc.

Reactors to the piece on social media fall into one of three categories:

• Friends in the IP policy world who praised and shared the piece,
• Hordes of Twitter keyboard warriors with single-digit followers bashing the piece and insulting me personally BUT focusing on extraneous issues, and
• One guy, Louis Rossmann, who is apparently the guru of Right to Repair. He has a YouTube following of 1.5 million subscribers, and apparently his meaning in life is Right to Repair.

In April 1902 the first permanent movie house, the Electric Theatre in Los Angeles, opened its doors. People started leaving their homes to go to the movies. More than 117 years later legal video streaming has empowered people to watch video anywhere they want. Consumers clearly value mobility as evidenced by streaming subscribers now being more numerous than paid television subscribers.  

During this era of seemingly endless video choices, and options of where to watch it, one specter looms: Digital piracy continues to grow, threatening the very innovation that has brought us so many options.  

At this year’s IPI World IP Day Celebration, IPI was honored to host Congressman Doug Collins, ranking member of the House Judiciary Committee, who called for simplifying intellectual property policy.

“We make intellectual property too hard sometimes,” he said. “We make it ethereal, it’s out there in the realm, only the experts know how to talk about it.”

Last Thursday I attended the release reception for the 2019 edition of the U.S. Chamber of Commerce’s International IP Index, which is produced by the Chamber’s Global Innovation Policy Center (GIPC). The Pugatch Concilium does the research and writes the report, under the direction of my friend, Meir Pugatch. It was great to see Meir again after several years.

The Index is an attempt to rank 50 countries based on their IP systems, under the assumption that stronger IP protections are positive for encouraging innovation and investment in a country. Many studies have demonstrated that higher levels of IP protection correspond with higher levels of foreign direct investment and the resultant economic growth, and the Index also contains some of that data.

The Index also contains a section talking about general international IP trends, which in general are not good. While some developing countries are seizing the advantage of stronger IP protection (India, Brazil, Argentina), many countries are undermining IP protection (Chile, Colombia, Peru, Russia).

In the US, which has been slipping in the rankings because of some unfortunate Supreme Court decisions and the PTAB process at the Patent Office that has been cynically abused to invalidate patents, things have turned back up. The new USMCA trade agreement (as yet not adopted or implemented) increases IP protection, but the major fact that lifted the US from 12^th place to 2^nd place in the patents ranking is the change at the top of the U.S. Patent Office. New Director of the Patent Office Andrei Iancu has implemented significant, pro-patent procedures throughout the Office but especially in the PTAB process, which has restored the process to something approaching its original intent, instead of the abusive way it operated under the previous USPTO regime.

The problem with such improvements, of course, is that they are easily undone by a future administration, which means we still need legislation like the Stronger Patents Act to use the force of law to either eliminate the PTAB process, or lock-in the higher standards imposed by Director Iancu. Such legislation should reverse some of the recent Supreme Court patent decisions as well.

With tax reform having just become law, economists are trying to project the effects on the U.S. economy. Such calculation in a highly complex, dynamic economy is at least as much art as science but one trend seems clear -- the job market will continue to tighten. Some economists are predicting that unemployment will drop to 3%, nearly matching the lowest average unemployment rate on record (2.93% in 1953). But there are jobs and then there are good jobs—which will these new jobs be? A study by NDP Analytics provides some insight. It’s the intellectual property-intensive industries that will be driving the growth and creating the types of jobs and careers that people want.

I’ve done a lot of work on the role of intellectual property in trade agreements, so when nuttiness makes its way into the mainstream, I tend to notice.

If you’re interested in some of the work I’ve done on IP and trade, here’s a little:

• In 2014, during the Trans-Pacific Partnership (TPP) discussions, I spoke as a panelist at a Cato Institute event. The panel was pretty much stacked 3:1 against me, and I think I held my own pretty well. It’s one of the more fun things I’ve done in policy in the last couple of years.
• Why Intellectual Property Should be Included in Trade Agreements

Anyway, recently, the anti-copyright coalition Re:Create’s Executive Director Josh Lamel wrote an op-ed in “The Hill” claiming creative industry calls for modern, strong copyright provisions in NAFTA that reflect lessons learned about internet ills since the DMCA was enacted in 1998 “would cripple the creative economy and the internet economies.”

To support his bizarre and counterintuitive assertions, Lamel relies on dubious claims and ends-driven research. To help everyone see through Re:Create’s artifice, I set the record straight below.

Today the Supreme Court of Canada (SCC) issued a significant ruling overturning Canada’s harmful “Promise Doctrine,” which was a completely novel and ill-advised standard Canada has been using since 2005 to overturn patents on innovative pharmaceuticals and biologics.

Canada’s Promise Doctrine, wholly invented in Canada and finding no basis in domestic or international patent law, turns out to not have even been consistent with Canada’s own Patent Act, according to the Supreme Court, which stated that “The Promise Doctrine is incongruent with both the words and the scheme of the Patent Act.”

Instead of simply granting a patent based on a non-obvious and useful inventive step, the Promise Doctrine insisted that a drug must be able to meet the nearly impossible test of predicting exactly how the product will be useful and then living up to that standard at the time the patent is applied for. This means that a court could be highly subjective in determining that a given patent did not live up to that standard at a time long after the patent was granted, which Canadian courts have been doing, invalidating 26 patents over the last decade based on this faulty Promise Doctrine.

The US Chamber has an excellent statement on the ruling, and Philip Stevens and Mark Schultz at the Geneva Network have a great explanation how the Promise Doctrine (now defunct) threatened innovation in Canada and beyond.

Canada’s Supreme Court apparently understands the importance of not weakening patent protection. Unfortunately, the US Supreme Court seems determined to go in the opposite direction, which is why Congress is beginning to contemplate new legislation to strengthen patent protection in the US.

Save the date to join us for IPI's annual World Intellectual Property Day Celebration on Tuesday, April 25 at the Reserve Officer's Association (ROA) Building on Capitol Hill in Washington DC.

We are proud to announce we will be featuring featuring Senate Judiciary Committee Chairman Chuck Grassley and WIPO's Deputy Director General of Patents and Technology John Sandage. 

United Nations bureaucrats want to mess with Texas.

The UN High-Level Panel on Access to Medicines recently recommended weakening intellectual property protections that drive and sustain biopharmaceutical innovation. Panelists hope their proposals will make it easier for foreign companies to create knock-offs of treatments researched, developed, and manufactured in America and distribute them around the world.

The Panel's misplaced focus on intellectual property resulted in a series of damaging recommendations that would suffocate medical innovation and stunt economic growth in Texas and across the nation -- all without helping patients one bit. Patents and other intellectual property protections are not barriers to access to medicines. The vast majority of treatments on the World Health Organization's Essential Medicines List are no longer protected by patents, yet millions of people around the world do not have access to them.  

Innovation is expensive and risky. Bringing a new drug to market takes an average of a decade and costs roughly $2.6 billion.[1] Additionally, only one out of every 5,000 promising compounds makes it out of the lab and through clinical trials to receive FDA approval. And just twenty percent of approved drugs ever turn a profit.[2]

Strong IP protections allow inventors to profit from their rare successes by restricting copies for a limited amount of time. That's essential, especially given that these companies need to earn back not just the development costs of the successful drug, but of all the ones that failed too.

“Reimportation” of prescription drugs is back as an issue, but only because Democrats seek to distract from the effort to repeal and replace Obamcare, according to Politico. By importation we refer to the ability of American consumers to buy their prescription drugs from overseas rather than from domestic sources, and particularly to large-scale importation, such as US drug distributors sourcing their drugs from overseas.

There has always been some cross-border traffic on pharmaceuticals, as drug prices in Canada can be cheaper than in the US. But the Medicare Part D prescription drug benefit, which came into effect in 2006, has significantly reduced this traffic by making prescription drugs available to seniors at more affordable prices.

There’s a reason why such importation is illegal today under most circumstances, and that’s because of safety. The rate of counterfeit drugs in other countries is staggering, and the only way to keep the counterfeit problem from infecting the US drug supply is through the rigorous inspection and supply-chain regime maintained by the FDA. And the FDA has repeatedly told Congress that it cannot guarantee the safety of drugs entering the US from other countries such as Canada, since it does not inspect those facilities. And when the FDA has been permitted to inspect overseas facilities, the results haven’t been encouraging, such as the extensive and discouraging history of the FDA with Indian pharmaceutical manufacturer Ranbaxy.

Some on the free-market side of the political spectrum argue that importation of prescription drugs is simply a matter of “free-trade,” which at least up until the last few months has been a persuasive argument when presented to Republicans. But, as professor Richard Epstein notes in an IPI publication noted below, importation of prescription drugs is actually a perversion of free trade, in that it rewards other countries for their price controls and socialized medicine systems, rewards them for their disregard for the patents of American drug companies, and would likely create shortages of much needed drugs in poor countries as their drug supply was diverted back to the US.

Larry Lessig is a well known critic of intellectual property protection, such as copyright and patents. But Larry has always claimed to believe in the basic idea of intellectual property; he just thought it all needed to be "reformed," by which he always seemed to mean "rendered impotent."

Well, a couple of days ago, Larry made a little Freudian slip on Twitter. Or perhaps it was entirely intentional. Regardless, it's instructive.

@thrashRadical @girlziplocked all “property” is imaginary. Some just gets your hands dirty.

— Lessig (@lessig) October 7, 2016

The policy problems with FCC Chairman Tom Wheeler’s set-top box proposal are many—the majority of which have nothing to do with set-top box competition issues—from consumer privacy to cybersecurity to energy consumption. But the concern that seems to have resonated the most is the proposal’s brazen disregard for copyright—constitutionally enshrined intellectual property rights that help provide the foundation for American creativity and the cultural and economic benefits they bring our nation.

Wheeler's proposed rule would force pay-TV providers to transmit copyrighted content to third parties without obtaining the consent of the copyright holders, allowing the third parties to appropriate that content for their own commercial benefit and undermining the ability of programmers to create television and film content in the first place. 

Almost from the moment Chairman Wheeler announced his set-top proposal, it has been teetering over an abyss in the face of near unanimous opposition, including from small and large programmers, civil rights groups, television and film unions, individual creators, more than 180 Democrats and Republicans in the House and Senate, and a bipartisan triumvirate of Chairman Wheeler’s own fellow commissioners.