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Statement of
The Honorable Sam Brownback
United States Senator

February 28, 2002

Thank you Mr. Chairman for holding this important hearing. The question of whether or not a state should abide by the same laws as a private individual or company in the area of intellectual property rights has been a complex one for both Congress and the Courts.

But before I get to the issue, allow me to first commend you, Mr. Chairman, for the quality and depth of the witnesses you've invited for this hearing and for your work in this area. I'm especially pleased that we have a native Kansan, Keith Schraad, testifying before this Committee on behalf of a Kansas company, the National Information Consortium or NIC. You may be surprised to know Mr. Chairman that NIC is just one of many leading technology companies that one can find among the wheatfields of Kansas.

There are two sides this issue and both are compelling. For individuals and companies who make the investment and take the risk in creating new products and services, their property rights are at stake when a state infringes upon their intellectual property. States on the other hand also want to protect their sovereignty under the Constitution and want to assert their intellectual property rights especially in the context of private/public partnerships where ownership issues may not be as clear.

This inherent conflict demands congressional action. Especially in the context of the digital revolution where exact copies and reproductions can be made, this is an important economic issue for individuals and companies trying to compete in the marketplace. The question is how to fashion a legislative remedy in light of recent Supreme Court decisions that struck down previous attempts to bring clarity to the issue.

I believe Chairman Leahy’s bill is a good attempt to find some compromise solution without running afoul of the constitutional issues highlighted by the Supreme Court in Seminole Tribe and the Florida Pre-Paid cases.

I would also like to add that this matter has repercussions which extend far beyond the domestic realm. The US is one of the leading proponents for the enforcement of intellectual property rights throughout the world. That's why it cannot afford to be inconsistent in its own observance of intellectual property rights. Through international agreements such as TRIPs and NAFTA, the United States has vigorously challenged international institutions and other nations to adopt and enforce more extensive intellectual property laws. When states assert sovereign immunity for the purpose of infringing upon intellectual property rights, it damages the credibility of the United States internationally, and could possibly even lead to violations of our treaty obligations. Any decrease in the level of enforcement of intellectual property rights around the world is likely to harm American businesses, because of our position as international leaders in industries like pharmaceuticals, information technology, and biotechnology.

Again, Mr. Chairman, thank you for holding this hearing and for accommodating a witness from my home state of Kansas.

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