Intellectual Property Enforcement Research Articles

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

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.

Intellectual Property before the European Court of Human Rights

In the past years, the European Court of Human Rights (ECtHR, or Strasbourg Court), Europe’s principal human rights watchdog, has played an ever larger role in the resolution of intellectual property (IP) disputes. The ECtHR’s engagement in IP adjudication has already influenced national judges, who increasingly have recourse to human rights to solve cases between private parties, thus calling for closer scrutiny of the Court’s practice on this matter. The present chapter provides the first comprehensive overview of the ECtHR case law on IP for the period since the Court’s inception (in January 1959) until today (February 2018). It results from an analysis of more than 90 such cases, many of which have never been discussed before in the literature. Certain issues that are currently pending before the Strasbourg Court are also given exposure. The chapter spans subjects from the protection of the rights of IP holders under the property provision of the European Convention on Human Rights (ECHR) (Article 1 of the First Protocol to the Convention) to the possibility of restricting such protection on the basis of the right to freedom of expression and information (Article 10 ECHR) often invoked by the users of IP-protected content. We also discuss the potential of the right to privacy (Article 8 ECHR) to serve both as a defence against certain IP enforcement measures (such as search orders) and as a basis for the protection of moral rights of creators. The most prominent IP disputes which raised questions under the right to non-discrimination (Article 14 ECHR) and the right to a fair trial (Article 6 ECHR) are also discussed in detail. This comprehensive overview of the case law of the ECtHR shows the emergence in Europe of a human rights framework for the intellectual property system, which – in combination with the increasing use of fundamental rights by national courts to solve private-party disputes – is gaining in coherence and relevance when framing the conception and use of IP law.

Implications of 3D Printing on Economy, Value Chains, and Intellectual Property

This work describes how 3DP economics differ from those of traditional manufacturing and distribution, the early ties between the “maker” movement and the 3D printing (3DP) industry, and foreseeable 3DP impacts on value chains. This paper also analyzes how 3DP influences the pertinence, scope, and enforcement of several intellectual property (IP) rights instruments, and describes how it may affect product liability laws and regulations. I reviewed literature from scientific sources through Scopus, and non-academic content using Infotrac Newsstand database. 3DP and 3D scanning are tightly linked with the maker movement; they allow a more agile design, cost-effective and flexible manufacturing, and cheaper distribution of low-production and custom products. Moreover, 3DP has the potential to reconfigure value chains under certain conditions. Adjustments on IP regulation and product liability law are required to increase 3DP development and widespread adoption.

Intellectual Property Enforcement, Exports and Productivity: Evidence from China

We study how provincial-level enforcement of intellectual property rights (IPRs) affects Chinese firms’ decisions regarding exit, export, and the channels through which to receive technology transfer. Our findings provide insights into how variations in IPRs enforcement alter productivity. Our model combines the standard theory of heterogeneous firms with the endogenous choices of those firms concerning how they absorb international technologies through imitation or licensing. We show that, in this setting, the exit and export cutoff productivities differ from those in the standard environment, leading to a different sorting mechanism. We also predict that stronger IPRs change the decisions firms make concerning their mode of technology transfer, further altering their productivity and export possibilities. Empirical tests based on a comprehensive dataset of Chinese firms from 2000 to 2006 support the model predictions.

Profiting from Innovation through Cross‐Border Market co‐Creation and co‐Opetition: The Case of Global Pharmaceuticals

We study the impact of the new intellectual property (IP) regime, as shaped by international agreements such as the Trade‐Related Aspects of Intellectual Property Rights (TRIPS), on the competitive positions of emerging country firms and advanced country multinational enterprises (AMNEs). Drawing on ideas from the IP, international business, and strategic management literatures, we formalize the market co‐creation perspective and extend it to the emerging country – AMNE context. Using the pharmaceutical industry as our focus, we show that market co‐creation‐based co‐opetition is preferable to both emerging and advanced country firms when the former can leverage their firm‐ and country‐specific advantages and complementary assets to co‐create new market space, even as they compete for value capture. We further show that co‐opetition is fostered when the bargaining power of the AMNE (afforded through trade agreements) is counterbalanced by actions of emerging country firms and a robust IP law interpretation and enforcement by the host country's courts.

Website Blocking, Injunctions and Beyond: View on the Harmonization from the Netherlands

Very few provisions of the European Union intellectual property enforcement framework are subject to so many preliminary references as orders against intermediaries. The website blocking case law is also an interesting case study from the perspective of the European harmonization. It shows how harmonisation by a halo effect can work. The widely-publicized use of a particular enforcement measure is replicated country-by-country, by a homogeneous group of stakeholders, thereby testing the local implementations and bringing its elements to the public scrutiny. The resulting picture painted by the domestic website blocking cases then reflects the state of Union harmonization. This piece contributes to the growing scholarship mapping the national post-implementation phase. It proceeds as follows. Part 1 gives a primer on Union law regarding injunctions against intermediaries. Part 2 explores the situation under the Dutch ‘localization’ of Union law, focusing particularly on injunctions, including against intermediaries, right to information and reimbursement of the costs. Part 3 explains the recent Dutch litigation chain concerning the website blocking and puts it in the broader context of discussions. Part 4 contrasts these findings with the situation under European Union law and practice in the other Member States. Part 5 concludes by evaluating the existing state of the harmonization in the area.

Civil Enforcement of Intellectual Property Rights: Public Consultation on the Efficiency of Proceedings and Accessibility of Measures. CEIPI's Comments on the Public Consultation, with a Focus on Alternative Dispute Resolution Mechanisms

As a part of a consultation with stakeholders in order to evaluate the overall functioning of the civil enforcement mechanism for intellectual property rights, the European Commission has opened a survey on “the efficiency of proceedings and accessibility of measures” to gather specific information about the enforcement of intellectual property rights through contracts, litigation, or other means. The Centre for International Intellectual Property Studies (CEIPI) submits a certain number of observations to the European legislature from the perspective of ADR (alternative dispute resolution). Although ADR has been recognized as an important means of dispute resolution and much effort - primarily on the national level - has been made, its use in the field of intellectual property rights remains modest. The CEIPI provides an analysis on the current state of affairs and advances proposals on how best the European Commission could make use of ADR in order to achieve effective enforcement of intellectual property rights.

The Evaluation and Modernisation of the Legal Framework for the Enforcement of Intellectual Property Rights

The judiciary fulfils a central role in relation to intellectual property enforcement. The EU Commission’s public consultation of December 2015 contains a specific subsection devoted to specialized courts, asking whether legal action at a court specialized in intellectual property provides an added value compared to legal action at other courts. CEIPI comments on the consultation aim at contributing to an informed debate on specialization and intellectual property adjudication, a debate revolving around technical complexity, judicial design, and the broader understanding of the legal system.

(En)countering counterfeits in Bangkok: The urban spatial interlegalities of intellectual property law, enforcement and tolerance

In a Bangkok mall a fibreglass policeman warning against intellectual property (IP) piracy stands just metres away from vendors selling fake DVDs; a scene indicative of incomplete and unsuccessful attempts by foreign governments (the US and EU in particular) and corporate actors at enrolment towards ever‐higher IP standards – the “IP ratchet” that Drahos (2004 Temple Law Review, 77, pp. 401–424) describes. But the scene also reflects cultural resistance at the local level. Both readings exemplify the range of historical, cultural, and politico‐legal factors at play that can only be understood through engagement with vendors and consumers in the markets and malls of Bangkok. IP laws may achieve partial “closure” but are regularly changing, contested, variably enforced, and subject to existing social norms such as the “cult of imitation”, cultures of legal informality, and a lack of social contract. We found that this lack of legal closure was most pronounced in the day‐to‐day operation of the Pratunam Market. Whilst other sites host regular crack‐downs by police, the IP‐specific DSI force, and the Thai courts, markets like Pratunam are mostly immune despite being a transnational trade node for the production and export of counterfeit garments with other developing countries, and a non‐conforming node in the IP enforcement context. In the face of persistent efforts to transpose Euro‐American IP laws in countries like Thailand, alternative and resistant nodes representing “spaces of interlegalities” are likely to persevere because of the historical context, and the socio‐cultural norms of these places.

Achievements in civil intellectual property enforcement and recent initiatives within the Digital Single Market Strategy on the regulatory environment for platforms and online intermediaries

Achievements in civil intellectual property enforcement and recent initiatives within the Digital Single Market Strategy on the regulatory environment for platforms and online intermediaries

Designed in China: A Legal Frontier

China’s “Five-Year Plan” is a national strategy document developed by the country’s top leaders. Manifest in its guidelines was a concept that the developed world has traditionally and freely acknowledged, but that China has only recently become an acquaintance with. Specifically, the plan labels innovation as one of its focus areas, with a goal to move up in the value chain of global economic powers by abandoning old heavy industry and building up bases of modern information-intensive infrastructure. These objectives are to be facilitated by actions which include the strengthening of intellectual property rights protection and enforcement and represents another notch on China’s growing shelf of advancements in the area. This paper will discuss the current state of China’s intellectual property legal framework, the increasing awareness amongst Chinese leadership to bolster the framework and the barriers which will inevitably form in the eye of progress. The analysis will delve into the history of intellectual property in China and culminate with a glance into today’s political and cultural landscape. The goal of this paper is to examine the importance of devising a stable legal framework in order for China to successfully adhere with the innovation aspect of its current Five-Year Plan.

The Impact on Cultural Diversity of Automated Anti-Piracy Systems As Copyright Enforcement Mechanisms: An Empirical Study of YouTubees Content ID Digital Fingerprinting Technology

Freedom of expression is closely intertwined with the preservation and promotion of cultural diversity. Simultaneously, protection of freedom of expression is promoted as an essential foundation for democracy in a pluralistic society. Although the aim of fostering cultural diversity is widely recognised, challenges remain in analysing the relationship and interaction between cultural diversity and freedom of expression. These challenges are likely to loom large in the digital environment. Digital technologies are changing the way cultural works are being produced, distributed and accessed, but digital technologies are also changing the way online uses of cultural work are monitored. Under the auspices of the Digital Single Market Strategy, the EU Commission has proposed a new copyright directive and intellectual property enforcement strategies. In the mind of the Commission, achieving this aim requires video-sharing platforms to embrace sophisticated technological tools, termed in this paper as ‘automated anti-piracy systems’ (‘AAPSs’). AAPSs are capable of recognising content which right-holders have already identified as their own, and respond based upon standing instructions from the holder whether the platform should permit use or block it. The Commission is intending to endorse and render mandatory the - so far - unregulated and informal notice and take-down procedure established by private entities. There are inherent risks in this privatisation of decision-making when digital content is blocked, filtered or removed. There is a lack of transparency in the design, implementation and use of AAPSs. This exacerbates the lack of accountability of intermediaries, and concerns that they fail to respect fundamental rights compared to in cases where the judiciary would be involved in the decision-making process. Consequently, one may begin to wonder whether an obligation to deploy automated anti-piracy systems on online-sharing platforms might run counter to promotion of cultural diversity. By requiring private entities to determine what unauthorised use is an ‘infringement’, will there be enough (or any) breathing space for cultural diversity to thrive? After all, the digital environment enables distribution and communication of artistic and cultural expression across borders and cultures in an unprecedented manner. While many may have very little economic value, they may be, nevertheless, indispensable for individual fulfillment and participation in a democratic society. Instead of considering whether the use of automated anti-piracy enforcement mechanisms is likely to violate international human rights law, this article looks at this issue from another perspective, and asks whether use of AAPSs is likely to impact on cultural diversity. By promoting cultural diversity as desirable ‘ends’, freedom of expression and copyright become the ‘means’ for enhancing the interaction between cultures and thereby promotes democratic values. In this article, we discuss our empirical research which sought to assess the diversity in cultural expressions featured on video-sharing platforms.

Enforcement of Intellectual Property, Pollution Abatement, and Directed Technical Change

We theoretically investigate the interaction between endogenous enforcement of intellectual property rights (IPRs) and tax-financed pollution abatement measures. IPRs affect dirty and clean intermediates alike such that higher IPR enforcement may promote the transition to the clean technology, if this technology is productive enough. If the green technology is relatively unproductive, higher IPRs promote the dirty technology while pollution is increasing. As households are due to subsistence consumption subject to a hierarchy of needs, the level of IPR enforcement as well as the level of abatement measures depends on the state of technology and is increasing during economic development. Thus, if the incentive to enforce IPRs is low the level of abatement measures is also low. This argument provides a theoretical foundation for the observed clash of interests in international negotiation rounds regarding the harmonization of IPR protection and actions to combat climate change.

Intellectual Property Enforcement to Safeguarding IT Environment

The world has started to appreciate more and more the value of information and its impact on humanity and sustainable developments. However, due to the increase in cybercrimes, information technology needs to be secured using certain policies and laws. In Iraq, as one of the developing countries, information technology field has evolved but the readiness to secure information technology is believed to be at the infancy. This paper introduces the potential role of intellectual property in safeguarding information technology from infringed and theft threats. It also suggests some recommendations as a basis for developing intellectual property law and policies to protect the rights of information technologies in Iraq.

China’s stance on free trade-related intellectual property: a view in the context of the China-Japan-Korea FTA negotiations

ABSTRACTThis article studies the stance of China on free trade-related intellectual property in the context of the China-Japan-Korea (CJK) free trade agreement (FTA) negotiations. It analyses the intellectual property provisions in FTAs and discusses the consistent stance of China on intellectual property in FTAs by reviewing the intellectual property provisions under existing FTAs involving China. The article then examines into major factors that influence China’s stance on intellectual property: its stage of economic development, innovation capacity and level of intellectual property enforcement; and explores China’s stance on intellectual property from the perspective of the CJK FTA negotiations and beyond. It finds that though China expressly stands against the TRIPS-plus standards for intellectual property enforcement, its attitude towards intellectual property issues in FTA negotiations is fairly flexible. It further argues that with intellectual property becoming increasingly important for its innovation-driven economy and with higher standards of intellectual property enforcement being incorporated in such influential FTA as the Trans-Pacific Partnership Agreement (TPP), China’s stance on intellectual property in future FTA negotiations will eventually change.

The impact of the European Union’s policy towards China’s intellectual property regime

This article evaluates the effectiveness of two major European Union technical assistance programmes, IPR2 and IP Key, in shaping China’s regional intellectual property (IP) enforcement. It argues that although technical assistance programmes have been effective in influencing the national IP legal framework, it has been less successful in assisting regional policy enforcement. This is primarily the result of divergent economic priorities at the sub-national level. The article further assesses potential priorities for future IP technical assistance.

Intellectual Property Enforcement in Smaller UK Firms

Research into the attitudes and practices of small and medium-sized enterprises (SMEs) and micro firms with regard to the enforcement of intellectual property, as well as the cost implications of the present IP enforcement system in the UK. Uses both an online survey and a phone survey, and information on Patents and Registered Design cases listed for hearings in the Patents Court from 2003 to 2009.

International medicines governance 1940s to 1970s: lessons for public health

Public health advocates aim to maximise affordable access to good quality essential medicines. This goal often conflicts with the profit-seeking ambitions of the pharmaceutical industry. Since the World Trade Organisation’s Trade-Related Aspects of Intellectual Property Rights agreement, the extension and enforcement of intellectual property (IP) rights has become the dominant discourse in global medicines governance. Public health advocates operating within this framework face significant obstacles and challenges. This paper presents an historical perspective to the contemporary debate over medicines and patents by examining the evolution of international medicines governance between the 1940s and 1970s. This research indicates that debates around IP and medicines were more advanced in terms of equity and access in the 1960s and 1970s than they are today. While acknowledging the existence of obstacles and challenges for advocates, the paper argues that alternative frameworks can and should be reasserted in global debates about medicines governance.

Free Trade of Pharmaceutical Products: The Limits of Intellectual Property Enforcement at the Border

Detentions of generic medicines in-transit attracted international attention in view of their implications for efforts to promote greater access to medicines. The controversy created by these detentions revolves around two main interrelated topics: first, the adoption of new intellectual property IP enforcement rules affecting third countries’ markets; second, the enforcement of intellectual property rights at the border. Tensions between the principles of free trade and intellectual property protection are not new. All intellectual property international treaties and national intellectual property laws enshrine or implicitly recognize two fundamental and interlinked principles of intellectual property law, namely territoriality and independence. Products protected by intellectual property rights are moreover covered by the liberty of transit mandated in GATT Article V. However, this article permits the control of in-transit goods under the condition to not subject them to “unnecessary delays and restrictions”. Whether some national and regional border enforcement regimes are compatible with these principles and conditions is disputable.

Comment on the Canadian Competition Bureau's Draft Updated Intellectual Property Enforcement Guidelines

This comment is submitted in response to the Canadian Competition Bureau’s (the Bureau’s) draft stage 2 update of its Intellectual Property Enforcement Guidelines (Draft Updated Guidelines). This comment addresses five issues in the Draft Updated Guidelines: (1) product switching in the context of pharmaceutical patents; (2) settlement of patent infringement litigation between competitors, commonly referred to as “reverse-payment settlements”; (3) deceptive failure to disclose patents essential to a standard, commonly referred to as “patent ambush”; (4) reneging on a commitment to license a standard-essential patent (SEP) on fair, reasonable, and nondiscriminatory (FRAND) terms; and (5) seeking injunctive relief against infringement of a FRAND-encumbered SEP.