Delegation to PARIS

Direction Générale des Politiques Internes de l'Union Direction C - Droits des Citoyens et Affaires Constitutionnelles Commission des affaires juridiques Le Secrétariat Report Delegation of the Committee on Legal Affairs to Washington D.C. 28 September - 1 October 2010 Regulatory impact assessment / Copyright The following members took part1: Klaus-Heiner LEHNE (EPP) - Chair of the Delegation Angelika NIEBLER (EPP) Marielle GALLO (EPP) Bernhard RAPKAY (S&D) Evelyn REGNER (S&D) Alexandra THEIN (ALDE) Jan Philipp ALBRECHT (Greens/EFA) Sajjad KARIM (ECR) Barbara WEILER (S&D - Member of IMCO Committee) The visit started at 5 p.m. on Tuesday 28 September 2010 with the briefing at the EU Delegation building, where the EP Liason Office with US Congress (EPLO) is also located. The JURI Delegation met Angelos Pangratis - Deputy Head of EU Delegation, Robert Whiteman from the European Commission, and Michael Topping from EPLO. Mr Pangratis described the background and current debates in Washington, including US relations with China, discussions on public procurement and foreign trade. Members also asked about climate change and the US perception of the EU financial regulations and of the Lisbon Treaty. The forthcoming mid-term elections to US Congress (2 November 2010) and the possible impact of their results were mentioned. 1 Also participated: Robert Bray and Jan Tymowski from the Secretariat of the Committee on Legal Affairs, Danai Papadopoulou from the Policy Department, Boglarka Bolya, Matilda Sisatto, Regina O'Connor, Francesca Beltrame and Cameron Smith from the Secretariats of political groups, and Ouarda Bensouag - assistant to MEP Marielle Gallo; the Delegation was assisted throughout its visit by Clare Wells-Shadad from the EP Liason Office in Washington. The breakfast-meeting on the following day, Wednesday 29 September 2010, took place at the George Washington Regulatory Studies Centre (www.gwu.edu/~regstudies) and was hosted by its Director, Susan Dudley (former Administrator at OIRA - see below). A number of faculty professors were also present: Joseph Cordes, Steve Balla, Lori Brainard and Henry Farrell. The discussion concentrated on the regulatory process in the United States (where basic legislation adopted by Congress is followed by regulatory acts prepared and adopted by executive agencies) and impact analysis, including participation of the general public. It is worth adding that Ms Dudley was recently appointed a member of the revived Administrative Conference of the United States (www.acus.gov), which previously provided advice to the Congress on changes that were needed to improve the process of making administrative law. The Delegation then moved to the Office of Information and Regulatory Affairs (OIRA - www.whitehouse.gov/omb/inforeg_default), which is situated within the Executive Office of the President and is responsible for reviewing draft regulations under Executive Order 12866 (directing executive agencies to follow certain principles in rulemaking, such as consideration of alternatives and analysis of impacts, both benefits and costs). The present Administrator, Cass Sunstein, presented OIRA's main aims, that is paperwork reduction and developing rules, and certain interesting ideas in the Administration’s recent activity, such as using disclosure as regulatory tool by spreading better practices, and the 'contest' approach to non- market actions. Deputy Administrator, Michael Fitzpatrick, contributed to the presentation of OIRA with information on expanding possibilities for citizens to comment regulatory proposals, esp. via their Federal Register (www.regulation.gov). Next, another meeting in the same building took place, and concerned the second subject of the Delegation, that is copyright. Victoria Espinel, the first US Intellectual Property Enforcement Coordinator, nominated by President Obama and confirmed by Senate in September and December 2009 respectively, explained her position in developing and implementing the Administration’s overall strategy for enforcement of intellectual property. In the early afternoon, the Delegation met with Democratic Congresswoman Zoe Lofgren, Member of the House Judiciary Committee (www.lofgren.house.gov) representing the 16th District of California (San Jose and Silicon Valley). The following encounter was with Republican Congressman Lamar Smith, Ranking Member of the House Judiciary Committee (www.lamarsmith.house.gov) representing the 21st District of Texas and his advisors: David Whitney, Counsel for Copyright & IP Sub- Committee and Richard Hertling, Legislative Director. This meeting was requested specifically as Mr Smith was one of the authors and leaders on the original PRO-IP Act (Prioritizing Resources and Organization for Intellectual Property Act) - introduced in December 2007 and supported by a strong bipartisan majority - that protects American innovations and ensures intellectual property enforcement. In 2006 Congressman Smith introduced 'the Orphan Works Act' later imbedded in 'The Copyright Modernization Act', however the 109th Congress ended before the bill could be addressed and the question of orphan works has still not been resolved by way of legislation. 2 With regard to the subject of regulatory impact assessment, the opinions expressed in the Congress underlined the transparency of initiating legislation (“Anyone can propose a bill”) and the practice of varied consultation with all interested stakeholders (including at open hearings). The ultimate responsiblity of the Congress to take legislative decisions was underlined and linked to the sceptic approach to measuring the actual impact assessment. The support of the Congressional Research Service at the early stage of preparing legislation and the Government Accountability Office involved in controlling regulation were also mentioned explicitly (both institutions were later visited by the Delegation - see below). In the late afternoon, the Delegation visited the US Copyright Office, which is formally part of the Library of Congress (www.copyright.gov), and met with Marybeth Peters, the Register of Copyrights and Amanda Wilson, Counsel for Policy and International Affairs. Ms Peters described how her Office provides expert assistance to Congress on intellectual property matters, including assisting it in drafting copyright legislation and advising it on compliance with multilateral agreements. The specific case of the so-called Google Book Settlement was discussed: the content of`this draft agreement (which remains to be yet approved in court) seems to have the nature of legislation but the Congress actually applauded it as an example of parties reaching agreement without the necessity of politicians taking sides in a conflict. In the evening, the Delegation took part in the official opening of the EU Delegation’s new office building made by Catherine Ashton, the EU High Representative for Foreign Affairs. The following day of the visit, Thursday 30 September 2010, again started with a breakfast meeting, in the Marriott Hotel, with the US Chamber of Commerce (www.uschamber.com). Its representatives (President David Hirschmann, Rick Cotton, Gina Vetere and Steven Tepp) first spoke about copyright (the Chamber’s affiliate established in 2007 – the Global Intellectual Property Center – seeks to strengthen the protection and enforcement of IP rights in the United States and abroad), and then about impact assessment (Vicepresident Bill Kovacs and Sean Heather – Executive Director of the Global Regulatory Cooperation Project). The US Congress was said to be absent from the RIA system, which is also shown by the fact that it managed to block a regulation proposed by the executive (possibly under the Congressional Review Act) only once. A specific reference was made to the previously existing Office of Technology Assessment, which provided the Congress with an independent assessment of science behind legislative proposals, was closed by Republicans in 1995, but in view of a growing recognition of its value (see http://www.princeton.edu/~ota/ for legacy) may well be restored after forthcoming elections. The Delegation then visited the House of Representatives’ premises again to meet with Democratic Congressman Rick Boucher, Chairman of the Sub-Committee on Communications, Technology and the Internet, and Member of the Sub-Committee on Courts and Competition Policy (www.boucher.house.gov), representing Virginia's 9th District. Mr Boucher replied inter alia to JURI Members’ questions concerning the controversies over the recent Leahy bill which was expected to be discussed at hearings next year. Asked about the impact assessment, Congressman Boucher confirmed the legislator’s interest in being informed about the proposals’ financial consequences (especially if they might lead to increased budget deficit) and informal ways of seeking advice from experts, academia, consumer groups and industry. Finally, he left the door open for a possibility to learn from the EU experience in impact assessment at large. 3 After lunch, the visit to the Google’s Washington office took place, where the Delegation discussed copyright issues with the company’s Senior Counsel, Fred von Lohmann. Matters discussed included the bill before the Senate. Mr von Lohmann considered what would ultimately be enacted would be different. It was difficult for US courts to reach "rogue websites" located offshore, although in some cases they could get through to the hosting computers. Some aspects of the proposed legislation were

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