September 16, 2020 Feature

Questions for Senator Thom Tillis

A conversation with Kira M. Alvarez

©2020. Published in Landslide, Vol. 13, No. 1, September/October 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Senator Thom Tillis is Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property. In addition to the Senate Judiciary Committee, Senator Tillis serves on the Senate Armed Services Committee, the Veterans’ Affairs Committee, and the Banking, Housing, and Urban Affairs Committee.

Before going into public service, Senator Tillis had a 22-year career in technology management consulting at PricewaterhouseCoopers and IBM. This experience provided Senator Tillis with a deep understanding of policy making and analyzing complex issues and is the basis for his approach to legislating.

Senator Tillis’s first involvement in public service was serving as the president of the parent-teacher association at his daughter’s high school. He then served as a member of the Town of Cornelius Board of Commissioners. In 2006, he was elected to the North Carolina House of Representatives. In 2011, Senator Tillis was selected by his peers to serve as Speaker of the House. He served in this position until 2014, when he was elected to the United States Senate.

As a senator, he is focused on finding pragmatic solutions and delivering results for North Carolinians. He brings the same approach to the complex intellectual property issues considered by the Subcommittee.

Kira M. Alvarez is the former legislative consultant for the ABA Section of Intellectual Property Law. She previously served as chief negotiator and deputy assistant USTR for IP enforcement during the Obama Administration.

KA: What do you think is the greatest invention out there?

TT: That list is a long one—which speaks to the value of American innovation—and it is hard to name a “greatest.” However, I think the computer, more than anything else, has been possibly the greatest invention of all time when you think about how many more inventions it has led to.

KA: Why did you decide to restart the Subcommittee on Intellectual Property at the start of this Congress? What are your current goals, and how do you plan to accomplish them?

TT: Before I went into public service, I worked for a number of years in technology and management consulting, where I saw firsthand how intellectual property propelled innovation and economic growth. For example, look at North Carolina’s economy. We are home to some of the most innovative companies and research universities in the country. Without strong intellectual property protections, many of these companies and university research, and all of the high-income jobs they create in North Carolina, would not exist.

My goal as Chairman of the Subcommittee on Intellectual Property is to promote policies that will ensure America’s innovation and creative economies continue to be the best in the world. I think the key to this is approaching each policy question with an open mind. There is not one right answer to every problem; it is a process and, as you know all too well, I love to take on the difficult issues. The process starts with basic fact-finding, and I am appreciative of groups like the ABA Intellectual Property Law Section—and your members—who are always willing to come to the table and provide constructive input on difficult issues.

KA: What do you think is the greatest challenge facing the U.S. with respect to innovation, and how is the Subcommittee helping to address this challenge?

TT: Intellectual property theft and infringement is the greatest challenge to U.S. innovation. Protecting intellectual property from theft and infringement is essential. If we don’t provide adequate intellectual property protections, smart businesses and individuals won’t invest the significant time and money needed to invent world-changing technologies, develop life-saving pharmaceuticals, or create generational movies, music, books, and other kinds of art that we remember for a lifetime.

KA: What policies, if any, can your committee implement to discourage or disrupt state-sponsored theft of American intellectual property?

TT: Preventing state-sponsored intellectual property theft is one of my top priorities this year, and will continue to be a priority. I intend to work with the White House and all relevant federal agencies to evaluate potential legislative changes to prevent intellectual property theft by state-sponsored actors, such as the recent attempts by Chinese- and Iranian-affiliated hackers to steal coronavirus research and information. Private companies are also an essential part of this effort. Without private companies disclosing and discussing theft, Congress cannot implement legislation to address the problems.

Preventing state-sponsored intellectual property theft is one of my top priorities this year, and will continue to be a priority. I intend to work with the White House and all relevant federal agencies to evaluate potential legislative changes to prevent intellectual property theft by state-sponsored actors, such as the recent attempts by Chinese- and Iranian-affiliated hackers to steal coronavirus research and information. Private companies are also an essential part of this effort. Without private companies disclosing and discussing theft, Congress cannot implement legislation to address the problems.

KA: Artificial intelligence (AI) has been a topic of much discussion over the past year, given the USPTO and WIPO calls for comments on AI and intellectual property. What are your thoughts on the intersection of AI and intellectual property?

TT: This is a great question. Artificial intelligence, and machine learning specifically, is the next frontier of innovation. AI patent applications are up 400 percent in just the last decade, and AI technologies are part of roughly 26 percent of all annual patent filings. These numbers highlight the importance that AI will play in the future of America’s innovation economy, not to mention its growing relevance to our creative industries.

KA: What are your thoughts on how the current COVID-19 crisis is impacting innovation issues?

TT: I think that COVID has brought out the best in people despite the difficulties we are all experiencing. We have seen countless numbers of innovative companies come forward and offer to do what they can to help America recover from this virus. From retooling factories so they can produce personal protective equipment and ventilators, to the companies racing to develop diagnostics, treatments, and vaccines, America’s innovative companies are essential to our recovery. We have also seen countless companies offer to open up their patent portfolios for free to aid in essential research. I think we can all agree that developing a vaccine is essential, and without strong intellectual property protections, we would not have American companies leading the effort.

KA: Switching gears to copyright, what prompted you to start the DMCA review hearings? What are some takeaways from the hearings so far?

TT: The DMCA was an impressive piece of legislation in 1998, and my understanding is that it was critical to the extraordinary growth of the internet. However, nearly everything about communications technology and the online world has changed since then. The internet was a much smaller place; there was no iTunes, no Facebook, no YouTube. We’ve gone from dial-up connections to the start of 5G, and today most people have more computing power in their pocket than they had at home in 1998.

The one thing that hasn’t changed is the law that governs the use of copyrighted works online. After three hearings on this issue, it is clear to me that the DMCA no longer works as Congress intended, especially the safe harbors for online service providers and the notice-and-takedown system in § 512. And it seems the Copyright Office agrees. In their multiyear study of § 512, the Copyright Office concluded that “Congress’ original intended balance has been tilted askew”—and now puts too heavy a burden on copyright owners to police the internet for infringement.

KA: What do you think are the top action items needed to stop online piracy and counterfeiting?

TT: Counterfeiting and online piracy are significant problems for businesses and consumers today. Counterfeit goods pose significant public safety concerns, and I am especially concerned about counterfeit personal protective equipment, COVID tests, and other products related to COVID. I am exploring legislative options to address this growing problem.

I’m also concerned by reports that online piracy has increased during the COVID pandemic. Not surprisingly, many people are turning to online services while staying home during this pandemic. This problem is one I am currently reviewing. I began this year-long DMCA reform process with no set opinion on how to fix the DMCA. I understand that it is broken, but we must conduct thorough fact-finding before we begin to draft legislation. The hearings have already helped shine a lot of light on those areas, as did the Copyright Office report on § 512, and I look forward to having a draft bill before the end of the year.

KA: As we look at a transition in the Copyright Office, and a possible transition at the USPTO (due to the presidential election), what are the qualities that make effective leaders in those roles?

TT:  Director Iancu has done an excellent job during his tenure at the USPTO, and I hope he will remain in this role for the foreseeable future. Whenever Director Iancu does leave, I hope the next USPTO Director will continue to implement smart policies to modernize the office and continue the discussion on issues such as AI and intellectual property to ensure America remains the world’s most innovative economy.

Over at the Copyright Office, I’ve been pleased to see the outstanding job that Maria Strong has done as Acting Register of Copyrights since the start of the year. The Copyright Office continues to dutifully carry out its important mission for copyright owners and the general public and has been a critical resource for my staff as the Subcommittee works on DMCA reform. As I’ve shared with the Librarian, the next Register of Copyrights should be a copyright expert who values the full body of U.S. copyright law and is intimately familiar with the duties of the Copyright Office and its value to copyright owners and the public. It is also essential that the next Register be ready to continue the Copyright Office’s crucial modernization for the 21st century.

KA: Let’s end with another challenging question: Given that March Madness was unfortunately canceled due to the pandemic, in your view, which North Carolina college would have ultimately made the deepest run in the NCAA tournament?

TT: On the men’s side, I think Duke was in the best position to make a run. And on the women’s side, NC State was looking really strong. I feel bad for the student-athletes whose seasons were cut short—they put an incredible amount of time and energy into preparing for seasons that were cut short or didn’t happen at all.

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