In the shadow of criminalisation: intellectual property criminal law, enforcement institutions and practices in China and the United States

Abstract

ABSTRACTThis article provides an extensive overview of major intellectual property rights (IPR) criminal enforcement agencies and judicial institutions; criminal enforcement rates and trends; recent major enforcement operations; and the substantive criminal IP law and sentencing regulations in the United States and China. Substantive criminal IP laws and enforcement practices manifest a consistent pattern of increased criminalisation of IP infringements and politically motivated sweeping campaigns to enhance enforcement in both countries, not only on the books but also in action. In addition, documentary and descriptive statistical analyses reveal that various aspects of the criminal enforcement institutions and practices in the two countries differ notably.Then a comparative legal analysis indicates that the U.S. criminal law on IP thefts is more updated and comprehensive with the promulgation of several new IP acts. In addition, types and severity of sanctions that IP offences carry diverge greatly between the two countries. More importantly, how punitive the system appears on the books does not always tally with what happens in practice. Finally, I provide policy recommendations for improving IP enforcement in China, from better and more frequent collaboration during enforcement to enhancing institutional capacity of the enforcement agencies. Recommendations are also made for China to modify its substantive criminal IP law and promulgate a detailed sentencing guideline.