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Towards a Balanced International Legal Framework for Criminal Enforcement of Intellectual Property Rights

  • Chapter
TRIPS plus 20

Part of the book series: MPI Studies on Intellectual Property and Competition Law ((MSIP,volume 25))

Abstract

The harmonization of the legal framework for criminal enforcement of intellectual property rights (IPR) at the regional and international level has since its inception been a sensitive and difficult issue, mainly due to the diverging moral and cultural legal conceptions of negotiating parties and because of strong sovereignty issues traditionally raised by criminal law. Against this background, the current international provisions on the subject established in Article 61 of the TRIPS Agreement only provide for a minimum standard level on criminal measures for the infringement of intellectual property rights. This situation was perceived by many developed nations as the result of an ineffective multilateral approach and led them to advance precise and tougher TRIPS-plus provisions on criminal enforcement in bilateral, plurilateral or regional agreements. These efforts to strengthen the criminal framework in an undifferentiated manner caused strong counter-reactions and even led to the overall rejection of intellectual property rights protection in certain cases. The general tendency to criminalize end users in relation to copyright infringements on the Internet is a good example.

Therefore, a balanced and differentiated set of rules for criminal enforcement of intellectual property rights needs to be considered in order to secure in the long run the acceptance of intellectual property rights within society. In this specific context, the purpose of this chapter is to reflect on the proper design of a legal framework which would provide for a legitimate protection for IPRs through adequate and efficient enforcement measures, while at the same time taking into account the public interest and basic principles of justice such as proportionality, legal certainty, procedural justice and the protection of fundamental rights. For this purpose, the chapter begins with a closer look at the norms codified in the TRIPS Agreement and explores their flexibilities, in order to verify whether international standards allow Member States to implement criminal provisions on IP rights in their national legislation in accordance with their domestic needs and circumstances. Later, this chapter envisages a revision of the main requirements for the criminalization of IP infringements, especially the concept of “commercial scale”, with the aim to propose a balanced and differentiated legal framework. In this sense, it suggests that when elaborating new conditions for the criminal enforcement of intellectual property rights, the international legislature should propose criteria that take into account the aggravated social harm caused by the infringement.

Prof. Dr. Christophe Geiger is Associate Professor, Director General and Director of the Research Department of the Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg.

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Notes

  1. 1.

    The TRIPS Agreement is reproduced as Annex 1 C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh on 15 April 1994.

  2. 2.

    Critical literature on the TRIPS Agreement is too abundant to be quoted extensively. See for example D. Vaver & S. Basheer (2006), Popping Patent Pills: Europe and a Decade’s Dose of TRIPS, 28 EIPR 2006, 282; J. Malbon & C. Lawson (2008), Interpreting and Implementing the TRIPS Agreement: Is it Fair?; B. Remiche & J. Kors (2007), L’Accord ADPIC, 10 Ans Après: Regards Croisés, Europe-Amérique Latine; C.M. Correa (2007), Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement; P.K. Yu (2006), TRIPs and its Discontents, 10 Marquette Intell. Prop. L. Rev. 2006, 369.

  3. 3.

    See for example J. Watal (2014), Is TRIPS a Balanced Agreement from the Perspective of Recent Free Trade Agreements?, in J. Drexl, H. Grosse Ruse-Khan & S. Nadde-Phlix (Eds.), EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?, p. 41; G.D. Dinwoodie & R.C. Dreyfuss (2005), WTO Dispute Resolution and the Preservation of the Public Domain of Science under International Law, in K.E. Maskus & J.H. Reichman (Eds.), International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime, p. 861.

  4. 4.

    Paris Convention for the Protection of Industrial Property, 21 UST 1583, 828 UNTS 305 of 20 March 1883 as revised at Stockholm on 14 July 1967.

  5. 5.

    Berne Convention for the Protection of Literary and Artistic Works, 1161 UNTS 3 of 9 September 1886 as amended on 29 September 1979.

  6. 6.

    For example, see Article 9 of the Paris Convention on the seizure of infringing trademarks in the country of importation and in the country of origin; Article 13 of the Berne Convention on the seizure of infringing recordings in the country of importation or Article 16 of the Berne Convention on the seizure of infringing copies in the country of importation.

  7. 7.

    For a more detailed discussion, see C. Geiger (2012), Weakening Multilateralism in Intellectual Property Lawmaking: A European Perspective on ACTA, 3 WIPO J. 2012, 166.

  8. 8.

    A good example of a bilateral agreement in this sense is the EU’s Free Trade Agreement (FTA) with South Korea; see Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, OJ 2011 L 127 of 14 May 2011, Articles 10.54 et seq. More generally on enforcement provisions in bilateral treaties, see X. Seuba (2013), Intellectual Property in Free Trade Agreements: What Treaties, What Content?, 16 JWIP 2013, 240.

  9. 9.

    In this sense, a plurilateral example dealing also with criminal enforcement of intellectual property rights is the Anti-Counterfeiting Trade Agreement (ACTA), an initiative aimed at combating the proliferation of counterfeiting within the global economy. ACTA was negotiated outside the multilateral framework between the European Union and ten other countries, Australia, Canada, the Republic of Korea, the United States of America, Japan, the Kingdom of Morocco, the United Mexican States, New Zealand, the Republic of Singapore and the Swiss Confederation. Another example are the ongoing negotiations on the Trans-Pacific Partnership (TPP) agreement between Brunei Darussalam, Chile, New Zealand, the Republic of Singapore, Australia, Canada, Malaysia, the United Mexican States, Peru, the United States of America, Vietnam, and Japan.

  10. 10.

    H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 184.

  11. 11.

    See in particular the figures quoted in the OECD (2009), Magnitude of Counterfeiting and Piracy of Tangible Products: An Update, p. 1. Nevertheless, the methodology of the study has been criticized, as is often the case with reports that attempt to quantify the economic impact of intellectual property rights infringement. More recently, there have been other attempts to provide additional empirical data such as the jointly released study between the European Patent Office (EPO) and the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OHIM) (2013), mainly focussing on the value of intellectual property rights for jobs and economic growth. For more detail on the reasons advanced by policy makers in this regard, see C. Geiger (2014), The Rise of Criminal Enforcement of Intellectual Property Rights … and Its Failure in the Context of Copyright Infringements on the Internet, in S. Frankel & D. Gervais (Eds.), The Evolution and Equilibrium of Copyright in the Digital Age, p. 113.

  12. 12.

    More generally on the trend to globalize IP issues see P.K. Yu (2007), The International Enclosure Movement, 82 Ind. L.J. 2007, 901–906.

  13. 13.

    See M. Bitton (2013), Rethinking the Anti-Counterfeiting Trade Agreement’s Criminal Copyright Enforcement Measures, 102 J. Crim. Law Criminol. 2013, 73, who states: “Each paradigm is based on different moral and doctrinal foundations, and the lack of coherence as to why each paradigm is applied further intensifies the moral ambiguity in criminalizing intellectual property violations”. See also C. Geiger (2014), The Rise of Criminal Enforcement of Intellectual Property Rights … and Its Failure in the Context of Copyright Infringements on the Internet, in S. Frankel & D. Gervais (Eds.), The Evolution and Equilibrium of Copyright in the Digital Age, p. 113.

  14. 14.

    For a more detailed discussion, see C. Geiger (2014), The Anti-Counterfeiting Trade Agreement (ACTA) and Beyond: Towards a Differentiated Approach to Criminal Enforcement of Intellectual Property Rights at Global Level, in P. Roffe & X. Seuba (Eds.), The ACTA and the Plurilateral Enforcement Agenda: Genesis and Aftermath, p. 100.

  15. 15.

    See in this sense for example D.P. Harris (2008), The Honeymoon is over: The U.S.-China WTO Intellectual Property Complaint, 32 Fordham Int’l L. J. 2008, 146.

  16. 16.

    In relation to the agreed minimum standards in the TRIPS Agreement and the issue of sovereignty, an author has observed: “Few things touch the delicate nerve of national sovereignty more than the autonomous capacity of states to administer their domestic laws in conformity with their own legal philosophies”; see J.H. Reichman (1997), Enforcing the Enforcement Procedures of the TRIPS Agreement, 37 Va. J. Int’l L. 1997, 339–340.

  17. 17.

    See in this sense T. Mylly (2012), Criminal Enforcement and European Union Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 215: “Criminal law – together with the disposition of the police monopoly on the use of force – has traditionally been thought of as an area belonging to the core of national sovereignty and competence”.

  18. 18.

    On the history of the Uruguay round of negotiations and the preparatory work to the TRIPS Agreement regarding criminal enforcement, see A. Adam (2011), What is “Commercial Scale”? A Critical Analysis of the WTO Decision in WT/DS362/R, 33 EIPR 346 et seq.

  19. 19.

    The willfulness requirement has been understood as “to correspond to the mens rea element (criminal intent) of crimes in common law systems” (emphasis in original): D. Gervais (2003), The TRIPS Agreement: Drafting History and Analysis, p. 327. It has indeed been confirmed by a WTO Panel that “this word, focusing on the infringer’s intent, reflects the criminal nature of the enforcement procedures at issue”. See WTO Panel (2009), Report on China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R of 26 January 2009, p. 83.

  20. 20.

    For a comment, see C.M. Correa (2009), The Push for Stronger Enforcement Rules: Implications for Developing Countries, in C.M. Correa & C. Fink (Eds.), The Global Debate on the Enforcement of Intellectual Property Rights and Developing Countries, p. 40; H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 175; A. Taubman (2011), A Practical Guide to Working with TRIPS, p. 111.

  21. 21.

    As Carlos Correa explained: “Finally, it is to be noted that the current initiatives by developed countries to enhance enforcement rules and mechanisms are often associated with expansive concepts of ‘counterfeiting’ and ‘piracy’. Correctly interpreted, these concepts are limited to very specific types of infringing acts, as defined in footnote 14 to article 51 of the TRIPS Agreement”. See C.M. Correa (2009), The Push for Stronger Enforcement Rules: Implications for Developing Countries, in C.M. Correa & C. Fink (Eds.), The Global Debate on the Enforcement of Intellectual Property Rights and Developing Countries, p. 32.

  22. 22.

    See Article 61 of the TRIPS Agreement.

  23. 23.

    Article 1(1) of the TRIPS Agreement reads as follows: “Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice” (emphasis added).

  24. 24.

    Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097. For a comment, see R. Creemers (2009), The Effects of World Trade Organization Case DS362 on Audiovisual Media Piracy in China, 31 EIPR 2009, 568; H. Xue (2009), Enforcement for Development: Why not an Agenda for the Developing World?, in X. Li & C.M. Correa (Eds.), Intellectual Property Enforcement: International Perspectives, p. 133; H. Xue (2009), An Anatomical Study of the United States versus China at the World Trade Organization on Intellectual Property Enforcement, 31 EIPR 2009, 292; D. Gervais (2009), China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights, 103 AJIL 2009, 549; H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 171; P.K. Yu (2012), Shaping Chinese Criminal Enforcement Norms through the TRIPS Agreement, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 286; P.K. Yu (2010), The US-China Dispute over TRIPS Enforcement, 5 Drake University Law School Occasional Papers in Intellectual Property Law; P.K. Yu (2011), The TRIPS Enforcement Dispute, 89 Neb. L. Rev. 2011, 1046; A. Adam (2011), What is “Commercial Scale”? A Critical Analysis of the WTO Decision in WT/DS362/R, 33 EIPR 2011, 342.

  25. 25.

    See H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 174: “It is important to highlight the limited scope of Art. 61 TRIPS and its inherent flexibilities as well as those external ones which allow WTO Member States to implement criminal procedures tailored to domestic circumstances”.

  26. 26.

    Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097, para. 7.577.

  27. 27.

    J. Watal (2014), Is TRIPS a Balanced Agreement from the Perspective of Recent Free Trade Agreements?, in J. Drexl, H. Grosse Ruse-Khan & S. Nadde-Phlix (Eds.), EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?, p. 46: “Although the TRIPS negotiations resulted in detailed provisions on enforcement procedures, these are mostly phrased in a way that makes it obligatory to provide the ‘authority’ to courts and other enforcement agencies to take certain actions and not actually to oblige certain enforcement actions. Indeed, this part of the TRIPS Agreement has been criticized by some as one of its weakest links”.

  28. 28.

    See J.H. Reichman & D. Lange (1998), Bargaining around the TRIPS Agreement: The Case for Ongoing Public-Private Initiatives to Facilitate Worldwide Intellectual Property Transactions, 9 Duke J. Comp. & Int’l L. 1998, 11; P.K. Yu (2011), TRIPS and its Achilles’ Heel, 18 J. Intell. Prop. L. 2011, 479.

  29. 29.

    See Council of the European Union, Document No. 12196/11 of 23 August 2011, Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America.

  30. 30.

    TPP builds on the Trans-Pacific Strategic Economic Partnership Agreement (P4) between Brunei Darussalam, Chile, New Zealand and Singapore, an agreement that entered into force in 2006.

  31. 31.

    See in this sense H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, pp. 171 et seq. For a more detailed discussion, see C. Geiger (2014), The Anti-Counterfeiting Trade Agreement (ACTA) and Beyond: Towards a Differentiated Approach to Criminal Enforcement of Intellectual Property Rights at Global Level, in P. Roffe & X. Seuba (Eds.), The ACTA and the Plurilateral Enforcement Agenda: Genesis and Aftermath, p. 100.

  32. 32.

    See C. Geiger (2012), The Anti-Counterfeiting Trade Agreement and Criminal Enforcement of Intellectual Property: What Consequences for the European Union?, in J. Rosen (Ed.), IP Rights at the Crossroads of Trade, p. 167.

  33. 33.

    In light of these various questions and because of the vagueness of the notion of “individual criminalization” and the definition of “commercial scale”, there was a strong reaction to ACTA’s provisions on criminal enforcement. The European Parliament finally rejected the Agreement on 4 July 2012 with 478 votes against, 39 in favor and 165 abstentions, see European Parliament legislative resolution of 4 July 2012 (12195/2011 – C7-0027/2012 – 2011/0167(NLE)), P7_TA-PROV(2012)0287. Japan, who ratified the agreement in September 2012 is currently the only signatory country to have done so. In order to enter into force, ACTA needs to be ratified by five more countries. For a comment on the rejection and its implications for the future, see D. Matthews & P. Zikovska (2013), The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union, 44 IIC 2013, 626; R. D’Erme et al. (2013), The Impact of the Anti-Counterfeiting Trade Agreement on the Legal Framework for IP Enforcement in the European Union, in C. Geiger (Ed.), Constructing European Intellectual Property: Achievements and New Perspectives, p. 394.

  34. 34.

    One chapter of the TPP is dedicated to intellectual property. Because of the increasing standard of enforcement measures, the TTP has been qualified as an “ACTA-plus” treaty; see in this sense S.K. Sell (2011), TRIPS Was Never Enough: Vertical Forum Shifting, FTAs, ACTA, and TPP, 18 J. Intell. Prop. L. 2011, 448.

  35. 35.

    See the latest supposed leaked draft of the Agreement of 16 October 2014, available at: https://www.wikileaks.org/tpp-ip3/ (accessed October 2015). Previous versions are dated from February 2011 (for a comment see Flynn et al. (2012), The US Proposal for an Intellectual Property Chapter in the Trans-Pacific Partnership Agreement, 28 Am. U. Int’l L. Rev. 2012, 105) and from August 2013 (for a comment see for example M. Kaminski (2013), The TPP and Copyright, Concurring Opinions of 14 November 2013 and K. Weatherall (2013), TPP – Australian Section-by-Section Analysis of the Enforcement Provisions of the August Leaked Draft.

  36. 36.

    See the supposed leaked draft of the Agreement of 16 October 2014, Article QQ.H.7, available at: https://www.wikileaks.org/tpp-ip2/#start (accessed October 2014). For a comment see M. Kaminski (2014), The Leaked TPP: Some Notes, and Criminal Copyright, Concurring Opinions of 16 November 2014 and K. Weatherall (2014), TPP - Section-by-Section Analysis of Some Provisions People Aren’t Talking About (May 2014 leaked draft).

  37. 37.

    Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, OJ 2011 L 127, 6-1343, Section C, Sub-section B.

  38. 38.

    Article 10.54 of the EU-South Korea FTA.

  39. 39.

    Article 10.57 of the EU-South Korea FTA. See also J. Drexl (2014), Intellectual Property and Implementation of Recent Bilateral Trade Agreements in the EU, in J. Drexl, H. Grosse Ruse-Khan & S. Nadde-Phlix (Eds.), EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?, p. 271. Interestingly however, the provision on penalties in the FTA seems sounder than those found in ACTA or the proposals in the TPP; it stipulates that “each Party shall provide for penalties that include sentences of imprisonment and/or monetary fines that are effective, proportionate and dissuasive.” This provision includes for example the requirement that penalties be proportional to the seriousness of the infringement.

  40. 40.

    See also T. Mylly (2014), Constitutional Functions of the EU’s Intellectual Property Treaties, in J. Drexl, H. Grosse Ruse-Khan & S. Nadde-Phlix (Eds.), EU Bilateral Trade Agreements and Intellectual Property: For Better or Worse?, p. 242.

  41. 41.

    Amended Proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights, COM(2006) 168 final of 26 April 2006.

  42. 42.

    OJEU C 252 of 18 September 2010, p. 9.

  43. 43.

    See Article 3 (emphasis added) of the Amended Proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights, COM(2006) 168 final of 26 April 2006.

  44. 44.

    Position of the European Parliament adopted at first reading on 25 April 2007 with a view to the adoption of Directive 2007/…/EC of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (EP-PE_TC1-COD(2005)0127).

  45. 45.

    This is the case in Australia for example; see K. Weatherall (2012), Submission to the Joint Standing Committee on Treaties Inquiry into the Anti-Counterfeiting Trade Agreement, Submission No. 3, p. 9.

  46. 46.

    See Article 61 of the TRIPS Agreement, which reads as follows: “Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent” and Article 24 of ACTA, which states that: “each Party shall provide penalties that include imprisonment as well as monetary fines sufficiently high to provide a deterrent” (emphasis added).

  47. 47.

    See also K. Weatherall (2013), TPP – Australian Section-by-Section Analysis of the Enforcement Provisions of the August Leaked Draft, p. 46.

  48. 48.

    See for example A. Adam (2011), What is “Commercial Scale”? A Critical Analysis of the WTO Decision in WT/DS362/R, 33 EIPR 2011, 348, who notes that “for the time being, it is not possible to establish a clear and precise standard of criminal enforcement measures based on Art. 61 of the TRIPS Agreement. Consequently, Art. 61 remains an uncertain bare minimum, which may or may not be satisfactory to some parties”.

  49. 49.

    This interpretation of the provision of Article 61 of the TRIPS Agreement might be regarded as “weak” from the point of view of the richest countries as compared with their IP enforcement standards. In a more global context, the flexibility of the international provision might be seen as an advantage allowing a compromise between the diverging interests of the parties to the Agreement. For a more detailed discussion, see C. Geiger (2012), Weakening Multilateralism in Intellectual Property Lawmaking: A European Perspective on ACTA, 3 WIPO J. 2012, 166; H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 184.

  50. 50.

    UNTS Vol. 1155, 331. However, it is true that some important WTO Members such as the USA have not ratified the Vienna Convention.

  51. 51.

    See Territorial Dispute (Libyan Arab Jamahiriya/Chad), 4 ICJ Reports 1994, para. 41 of 3 February 1994.

  52. 52.

    For a more detailed discussion, see S. Frankel (2006), WTO Application of “The Customary Rules of Interpretation of Public International Law” to Intellectual Property, 46 Va. J. Int’l L. 2006, 365. See also the Doha Declaration on the TRIPS Agreement and Public Health adopted by the Ministerial Conference (WT/Min (01)/DEC2 of 20 November 2001), where it is explicitly stated that in “applying the customary rules of interpretation of international law, each provision of the TRIPS Agreement shall be read in the light of the object and purpose of the Agreement as expressed, in particular in its objectives and principles”, Article 5(a).

  53. 53.

    For more details, see H. Grosse Ruse-Khan (2008), A Comparative Analysis of Policy Space in WTO Law, MPI for Intellectual Property, Competition and Tax Law Research Paper Series No 02-02 (reproduced in: A. Kur (2011), Intellectual Property Rights in a Fair World Trade System: Proposals for Reform of TRIPS, p. 167).

  54. 54.

    See C.M. Correa (2007), Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement, p. 108.

  55. 55.

    For more details on the Preamble and its impact on the interpretation of the Agreement, see D. Gervais (2003), The TRIPS Agreement: Drafting History and Analysis, para. 2.08.

  56. 56.

    See Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097, p. 80.

  57. 57.

    See ibid., p. 79.

  58. 58.

    For a critique on the “dictionary” interpretation approach of the ordinary meaning of “commercial scale” see among others A. Adam (2011), What is “Commercial Scale”? A Critical Analysis of the WTO Decision in WT/DS362/R, 33 EIPR 2011, 342; H. Grosse Ruse-Khan (2011), The (Non) Use of Treaty Object and Purpose in Intellectual Property Disputes in the WTO, MPI for Intellectual Property and Competition Law Research Paper Series No. 11–15.

  59. 59.

    See Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097, p. 84.

  60. 60.

    For a more general appraisal of the issue, see H. Grosse Ruse-Khan (2011), The (Non) Use of Treaty Object and Purpose in Intellectual Property Disputes in the WTO, MPI for Intellectual Property and Competition Law Research Paper Series No. 11–15.

  61. 61.

    See P.K. Yu (2009), The Objectives and Principles of the TRIPS Agreement, 46 Hous. L. Rev. 2009, 979 et seq., who, following other commentators, points out that Article 7 is a “should” provision and is contained in the text of the Agreement and not in the Preamble, which gives it greater weight in the process of interpretation. See also in this sense UNCTAD-ICTSD (2005), Resource Book on TRIPS and Development; D. Gervais (2003), The TRIPS Agreement: Drafting History and Analysis.

  62. 62.

    See H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 182.

  63. 63.

    See Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097, paras. 7.530–7.531.

  64. 64.

    On the contrary, in another decision, the Panel held that: “Both the goals and the limitations stated in Articles 7 and 8.1 must obviously be borne in mind when doing so as well as those of other provisions of the TRIPS Agreement which indicate its object and purposes” (Panel Report, Canada – Patent Protection of Pharmaceutical Products, WT/DS114/R, adopted 7 April 2000, DSR 2000:V, p. 2289, para. 7.26).

  65. 65.

    See for example in this sense the view expressed by the European Commission in ibid., para. 7.25: “[I]n the view of the EC, Articles 7 and 8 are statements that describe the balancing of goals that had already taken place in negotiating the final texts of the TRIPS Agreement. According to the EC, to view Article 30 as an authorization for governments to ‘renegotiate’ the overall balance of the Agreement would involve a double counting of such socio-economic policies. In particular, the EC pointed to the last phrase of Article 8.1 requiring that government measures to protect important socio-economic policies be consistent with the obligations of the TRIPS Agreement. The EC also referred to the provisions of first consideration of the Preamble and Article 1.1 as demonstrating that the basic purpose of the TRIPS Agreement was to lay down minimum requirements for the protection and enforcement of intellectual property rights”.

  66. 66.

    See D. Borges Barbosa, M. Chon & A. Moncayo von Hase (2007), Slouching Towards Development in International Intellectual Property, 1 Mich. St. L. Rev. 2007, 2013, L. 113.

  67. 67.

    See also M. Land (2012), Rebalancing TRIPS, 33 Mich. J. Int’l L. 2012, 460.

  68. 68.

    As Robert Howse noted in a comment of the “Canada – Patent Protection of Pharmaceutical Products” decision, the WTO Panel is “only interested in how much the rights holder might lose, not in how much society might gain, from a given exception”. See R. Howse (2000), The Canadian Generic Medicines Panel: A Dangerous Precedent in Dangerous Times, 3 J. W. Intell. Prop. 2000, 496. See also C.M. Correa (2007), Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement, p. 99.

  69. 69.

    See in this sense Commission on Human Rights, Report of the High Commissioner on Economic, Social and Cultural Rights: The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, E/CN.4/Sub.2/2001/13 of 27 June 2001, para. 28: “[T]he TRIPS agreement offers significant operational flexibility and the High Commissioner urges Member States of the WTO to use this operational flexibility in ways that would be fully compatible with the promotion and protection of human rights”.

  70. 70.

    See Panel Report, China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights, WT/DS362/R, adopted 20 March 2009, DSR 2009:V, p. 2097, p. 99.

  71. 71.

    See J.H. Reichman (1995), The Know-How Gap in the TRIPS Agreement: Why Software Fared Badly, and What Are the Solutions, 17 Hastings Comm. & Ent. L.J. 763; J.H. Reichman (1996), Compliance with the TRIPS Agreement: Introduction to a Scholarly Debate, 23 Vand. J. Transnat’l L. 1996, 363; M.A. Hamilton (1996), The TRIPS Agreement: Imperialistic, Outdated, and Overprotective, 29 Vand. J. Transnat’l L. 1996, 613; T. Woods (2009), Copyright Enforcement at all Costs? Considerations for Striking Balance in the International Enforcement Agenda, 37 AIPLA Qu. J. 2009, 347.

  72. 72.

    See C.M. Correa (2007), Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement, p. 449, who states that “infringement that cannot be deemed ‘on a commercial scale’ (e.g. isolated acts of infringement even if made for profit) is not subject to” Article 61 of the TRIPS Agreement. Another author has also noted that “small-scale piracy should be excluded from the term ‘commercial scale’, even if done for a financial return”; see D.P. Harris (2008), The Honeymoon is over: The U.S.-China WTO Intellectual Property Complaint, 32 Fordham Int’l L.J. 2008, 142–143.

  73. 73.

    See C. Geiger (2006), “Constitutionalizing” Intellectual Property Law: The Influence of Fundamental Rights on Intellectual Property in Europe, 37 IIC 2006, 371. See also H. Grosse Ruse-Khan (2008), Proportionality and Balancing within the Objectives for Intellectual Property Protection, in P.L.C. Torremans (Ed.), Intellectual Property and Human Rights, Enhanced Edition of Copyright and Human Rights, p. 191.

  74. 74.

    For an elaborate analysis on the application of the TRIPS Agreement in the context of “online piracy”, see P.L. Judd (2011), Toward a TRIPS Truce, 32 Mich. J. Int’l L. 2011, 649 et seq.

  75. 75.

    Henning Grosse Ruse-Khan has argued for the application of the principle of proportionality to the interpretation of the TRIPS Agreement: H. Grosse Ruse-Khan (2008), Proportionality and Balancing within the Objectives for Intellectual Property Protection, in P.L.C. Torremans (Ed.), Intellectual Property and Human Rights, Enhanced Edition of Copyright and Human Rights, p. 161. See also M. Andenas & S. Zleptnig (2007), Proportionality: WTO Law: In Comparative Perspective, 42 Tex. Int’l L.J. 2007, 373, who however note that: “The main argument advanced against proportionality is that the WTO is institutionally not ready for such a fundamental balancing of values and interests (mainly economic versus non-economic), and that such balancing is at the core of the proportionality analysis”.

  76. 76.

    See A. Desmedt (2001), Proportionality in WTO Law, 4 J. Int’l Econ. L. 2001, 443.

  77. 77.

    For an analysis, see A.S. Sweet & J. Mathews (2008), Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat’l L. 2008, 74.

  78. 78.

    See M. Andenas & S. Zleptnig (2007), Proportionality: WTO Law: In Comparative Perspective, 42 Tex. Int’l L.J. 2007, 378.

  79. 79.

    See M. Hilf (2001), Power, Rules and Principles – Which Orientation for WTO/GATT Law?, 4 J. Int’l Econ. 2001, L. 112.

  80. 80.

    In the WTO law, the principle of proportionality is not mentioned as such; however, it has been convincingly demonstrated that the rules laid down in its Agreements derive from the content of the principle of proportionality. See in more detail M. Andenas & S. Zleptnig (2007), Proportionality: WTO Law: In Comparative Perspective, 42 Tex. Int’l L.J. 2007, 371. See also A. Desmedt (2001), Proportionality in WTO Law, 4 J. Int’l Econ. L. 2001, 441.

  81. 81.

    See C. Geiger (2006), “Constitutionalizing” Intellectual Property Law: The Influence of Fundamental Rights on Intellectual Property in Europe, 37 IIC 2006, 386; C. Geiger (2009), Copyright’s Fundamental Rights Dimension at EU Level, in E. Derclaye (Ed.), Research Handbook on the Future of EU Copyright, p. 27. For such a reasoning on the basis of conflicting fundamental rights, see for example the decision of the German Constitutional Court in its School Book decision of 7 July 1971, GRUR 1972, 481.

  82. 82.

    Article 17(2) of the Charter of Fundamental Rights of the European Union, 2010 OJEU, C 83/02 of 30 March 2010, provides that “Intellectual property shall be protected”.

  83. 83.

    The European Court of Human Rights developed jurisprudence in this sense under Article 1, Protocol 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 of 4 November 1950, ETS 5. For examples, see SC Editura Orizonturi SRL v. Romania, No. 15872/03 of 13 May 2008, ECHR, where it is stated that the right to publish the translation of a novel falls within the scope of Article 1 of Protocol No. 1, para. 70; Balan v. Moldova, No. 19247/03 of 29 January 2008, ECHR, where the Court voted unanimously that there was an interference with the applicant’s property rights because the Moldovan courts refused to compensate him for the use made without his consent of a photograph by the Ministry of Internal Affairs; Paeffgen GmbH v. Germany (dec.), Nos 25379/04, 21688/05, 21722/05 and 21770/05 of 18 September 2007, ECHR, on the exclusive right to use and dispose of registered Internet domain names that constitutes a “possession”.

  84. 84.

    See J. Griffiths (2012), Criminal Liability for Intellectual Property Infringement in Europe: The Role of Fundamental Rights, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 196, who wonders: “Given this acceptance of the principle that intellectual property rights have fundamental status, can it be argued that European states are obliged to impose effective criminal sanctions against infringement?” See also D. Gervais (2012), Criminal Enforcement in the US and Canada, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 270.

  85. 85.

    Discussing alternatives to the protection of IP at constitutional level by the right to property, see C. Geiger (2015), Implementing Intellectual Property Provisions in Human Rights Instruments: Towards a New Social Contract for the Protection of Intangibles, in C. Geiger (Ed.), Research Handbook on Human Rights and Intellectual Property, p. 661.

  86. 86.

    See for example ECtHR, Neij and Sunde Kolmisoppi v. Sweden, No. 40397/12 of 19 February 2013, unreported, where the ECtHR judges state that the criminal conviction of the applicants interferes with their right to freedom of expression protected by Article 10(1) of the ECHR. Nevertheless, within the balancing test of proportionality the Court reiterates “that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of interference with the freedom of expression guaranteed by Article 10…. In the present case, the Court considers that the prison sentence and award of damages cannot be regarded as disproportionate” (p. 11). For a comment, see C. Geiger & E. Izyumenko (2014), Copyright on the Human Rights’ Trial: Redefining the Boundaries of Exclusivity through Freedom of Expression, 45 IIC 2014, 316. See also D. Voorhoof & I. Hoedt-Rasmussen (2013), ECHR: Copyright vs. Freedom of Expression II (the Pirate Bay), Kluwer Copyright Blog of 20 March 2013.

  87. 87.

    See in this sense B. Remiche (2007), L’Accord ADPIC, dix ans après: un accord de libre-échange ou d’intégration forcée?, in B. Remiche & J. Kors (Eds.), L’Accord ADPIC, 10 Ans Après: Regards Croisés, Europe-Amérique Latine, p. 533.

  88. 88.

    For example, C. McLachlan (2005), The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L.Q. 2005, 286, states that “the process of interpretation is also an integral part of the legal system in which the text is situated. Legal texts only make sense within the context of the system that gives them authority and meaning. By the same token, the process of legal interpretation itself performs an integrating task within the legal system”.

  89. 89.

    On the interaction between IP and international human rights provisions, see L.R. Helfer (2006), Three Approaches for Reconciling Human Rights and Intellectual Property Rights, in ALADDA (Ed.), Copyrights and Freedom of Expression, p. 116. According to this author, it is certain “that the rules, institutions, and discourse of international human rights are now increasingly relevant to intellectual property law and policy and that the two fields, once isolated from each other, are becoming even more closely intertwined”. In this sense, see also L.R. Helfer (2007), Toward a Human Rights Framework for Intellectual Property, 40 U.C. Davis L. Rev. 2007, 971; P.K. Yu (2007), Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 U.C. Davis L. Rev. 2007, 1039; P.K. Yu (2007), Ten Common Questions about Intellectual Property and Human Rights, 23 Ga. St. U. L. Rev. 2007, 709; N. Bronzo (2007), Propriété Intellectuelle et Droits Fondamentaux; C. Geiger (Ed.), Research Handbook on Human Rights and Intellectual Property.

  90. 90.

    See S. Frankel (2006), WTO Application of “The Customary Rules of Interpretation of Public International Law” to Intellectual Property, 46 Va. J. Int’l L. 2006, 420, underling that “Art. 31(3)(c) is not limited to rules in relation to intellectual property law, but all rules of international law” and that therefore the “open-textured nature of some TRIPS Agreement carve-outs may call for other areas of international law to be treated as part of the context of interpretation”.

  91. 91.

    Article 31(3)(c) VCLT however is reserved for cases where the ordinary meaning of the terms (Article 31(1) VCLT) does not necessarily provide the answer. See in this sense C. McLachlan (2005), The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L.Q. 2005, 311: “[I]t is always essential to keep in mind that Article 31(1)(c) is only part of a larger interpretation process, in which the interpreter must first consider the plain meaning of the words in their context and in the light of the object and purpose of the provision”.

  92. 92.

    See Office of the High Commissioner for Human Rights, “Human Rights and Trade”, Submission to the 5th WTO Ministerial Conference, Cancun, Mexico, 10-14 September 2003, p. 4.

  93. 93.

    See in this sense the Commission on Human Rights, Report of the High Commissioner on Economic, Social and Cultural Rights: The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, E/CN.4/Sub.2/2001/13 of 27 June 2001, para. 16: “the overall thrust of the TRIPS Agreement is the promotion of innovation through the provision of commercial incentives. The various links with human rights’ subject matter – the promotion of public health, nutrition, environment and development – are generally expressed in terms of exceptions to the rule rather than the guiding principles themselves and are made subject to the provisions of the Agreement”. See also H. Hestermeyer (2007), Human Rights and the WTO: The Case of Patents and Access to Medicines, pp. 103-104, explaining that “the WTO is therefore bound by general international law standards of human rights to the extent that WTO law is not contradicting them, implicitly contracting out of them. In case of a contradiction the WTO remains bound by human rights standards where those have acquired that status of jus cogens”.

  94. 94.

    On this see C.M. Correa (2007), Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement, p. 100.

  95. 95.

    See on this M. Land (2012), Rebalancing TRIPS, 33 Mich. J. Int’l L. 2012, 472.

  96. 96.

    UN General Assembly, International Covenant on Civil and Political Rights (ICCPR) of 16 December 1966, UNTS, Vol. 999.

  97. 97.

    UN General Assembly, International Covenant on Economic, Social and Cultural Rights (ICESCR) of 16 December 1966, UNTS, Vol. 993.

  98. 98.

    UN General Assembly, Universal Declaration of Human Rights (UDHR) of 10 December 1948, 217 A (III). The UDHR is a resolution of the General Assembly of the United Nations with no binding character. At the same time, there is an extensive doctrine on the legal effects that the UDHR has obtained, especially as an instrument which is part of customary international law. For a discussion see H. Hannum (1995–1996), The Status of the Universal Declaration of Human Rights in National and International Law, 25 Geo. J. Int’l L. 1995–1996, 287; R. Smith (2015), Interactions between International Human Rights Law and the European Legal Order, in C. Geiger (Ed.), Research Handbook on Human Rights and Intellectual Property, p. 52 et seq. See also H. Hestermeyer (2007), Human Rights and the WTO: The Case of Patents and Access to Medicines, pp. 119 et seq.

  99. 99.

    See the article of G. Marceau (2002), WTO Dispute Settlement and Human Rights, 13 EJIL 2002, 753 et seq.; G. Marceau (2005), The WTO Dispute Settlement and Human Rights, in F.M. Abbott, C. Breining-Kaufmann & T. Cottier (Eds.), International Trade and Human Rights: Foundations and Conceptual Issues, p. 181; R. Howse & M. Mutua (2000), Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization, arguing “that trade and human rights regimes need not be in conflict, so long as the trade regime is interpreted and applied in a manner consistent with the human rights obligations of states. This interpretation respects the hierarchy of norms in international law, where human rights, to the extent that they have status of preemptory norms, will normally prevail over specific, conflicting provisions of any treaties including trade agreements”.

  100. 100.

    See Sub-Commission on Human Rights, Intellectual Property Rights and Human Rights, E/CN.4/SUB.2/RES/2000/7 of 17 August 2000; Sub-Commission on Human Rights, Intellectual Property and Human Rights, E/CN/4/SUB.2/RES/2001/21 of 16 August 2001.

  101. 101.

    See Commission on Human Rights, Report of the High Commissioner for Human Rights: Globalization and Its Impact on the Full Enjoyment of Human Rights, E/CN.4/2002/54 of 15 January 2002, para. 10: “While the WTO agreements provide a legal framework for the economic aspects of the liberalization of trade, the norms and standards of human rights balance this by offering a legal framework for the social dimensions of trade liberalization”.

  102. 102.

    See R.D. Anderson & H. Wager (2006), Human Rights and the WTO: The Cases of Intellectual Property and Competition Policy, 9 J. Int’l Econ. L. 2006, 715.

  103. 103.

    One author has noted: “The WTO is called upon to provide a stable and reliable framework for international trade. This presupposes that the system is accepted by all WTO Members and the relevant actors on the national level. The WTO is designed to evolve according to basic constitutional principles which are enriched in the rule of law and in the principle of legitimate government pursuing the protection of social values as well as fundamental rights. Therefore the dispute settlement bodies under the WTO try not to depart from fundamental legal principles as laid down in the respective constitutional systems of WTO Members. Individuals will only give their continuing support to a system which they see as legitimate and which respects such fundamental legal principles”. See M. Hilf (2001), Power, Rules and Principles – Which Orientation for WTO/GATT Law? 4 J. Int’l Econ. L. 2001, 125.

  104. 104.

    See M. Land (2012), Rebalancing TRIPS, 33 Mich. J. Int’l L. 2012, 472.

  105. 105.

    See also M. Land (2012), Rebalancing TRIPS, 33 Mich. J. Int’l L. 2012, 472 et seq. For a detailed analysis of Article 8 of the TRIPS Agreement, see for example C.M. Correa (2007), Trade Related Aspects of Intellectual Property Rights: A Commentary on the TRIPS Agreement, pp. 103 et seq.

  106. 106.

    See also in this sense M. Land (2012), Rebalancing TRIPS, 33 Mich. J. Int’l L. 2012, 472.

  107. 107.

    See as well H. Grosse Ruse-Khan (2008), Proportionality and Balancing within the Objectives for Intellectual Property Protection, in P.L.C. Torremans (Ed.), Intellectual Property and Human Rights, Enhanced Edition of Copyright and Human Rights, p. 191.

  108. 108.

    See also H. Grosse Ruse-Khan (2012), Criminal Enforcement and International IP Law, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 183: “Hence it is not the interpretative result which is subject to criticism. Instead, it is the systemic problem of not taking the object and purpose of TRIPS seriously in the process of treaty interpretation”.

  109. 109.

    See C. Geiger (2014), The Rise of Criminal Enforcement of Intellectual Property Rights … and its Failure in the Context of Copyright Infringements on the Internet, in S. Frankel & D. Gervais (Eds.), The Evolution and Equilibrium of Copyright in the Digital Age, p. 113; C. Geiger (2014), The Anti-Counterfeiting Trade Agreement (ACTA) and Beyond: Towards a Differentiated Approach to Criminal Enforcement of Intellectual Property Rights at Global Level, in P. Roffe & X. Seuba (Eds.), The ACTA and the Plurilateral Enforcement Agenda: Genesis and Aftermath, p. 100.

  110. 110.

    There are various initiatives, especially in academic forums, to propose alternative perspectives. See for example “Washington Declaration on Public Interest”; “Max Planck Principles on Bilateral and Regional Agreements”. For a comment on the latter, specifically on how to apply this set of principles to recent international intellectual property instruments, see J. De Beer (2013), Applying Best Practice Principles to International Intellectual Property Lawmaking, 44 IIC 2013, 884.

  111. 111.

    See in this sense in the copyright context K. Gracz (2013), On the Role of Copyright Protection in the Information Society, Anti-ACTA Protests in Poland as a Lesson in Participatory Democracy, 4 JIPITEC 2013, 21.

  112. 112.

    Legal certainty has been the subject of vast research. See for example T. Tridimas (1999), The General Principles of EC Law; R. Alexy (2002), A Theory of Constitutional Rights; F. Hayek (1976), Law, Legislation and Liberty Vol. 2; V. Held (1970), The Public Interest and Individual Interests; J. Rawls (1999), A Theory of Justice; J. Habermas (1998), Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy.

  113. 113.

    The principle of legal certainty can be found in relevant international and European norms such as in Article 15 ICCPR; Article 49(1) EU Charter of Fundamental Rights; Article 7 ECHR.

  114. 114.

    For example, the European Court of Human Rights considers carefully the predictability criterion; see Rekvenyi v. Hungary, No. 25390/94 of 20 May 1999, ECHR, para. 34, Reports of Judgments and Decisions 1999-III.

  115. 115.

    See Camilleri v. Malta, No. 42931/10 of 22 January 2013, para. 34, unreported.

  116. 116.

    See Scoppola v. Italy (No. 2), No. 10249/03 of 17 September 2009, para. 93, unreported.

  117. 117.

    See also D. Gervais (2012), Criminal Enforcement in the US and Canada, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 269.

  118. 118.

    See Article 23 ACTA or the proposed provision on criminal enforcement in the TPP, as discussed in Sect. 2.

  119. 119.

    See at the European Union level Recital (14) of the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, OJEU, L 157 of 30 April 2004, corrected in OJEU L 195 of 2 June 2004. See also for national regulations of the Member States of the European Union on the matter Commission Staff Working Document, Analysis of the application of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights in the Member States, Brussels, 22 December 2010, SEC(2010) 1589 final, 9. For a brief survey on criminal intellectual property laws in different jurisdictions around the world, including on the notion of “commercial scale”, see also D.P. Harris (2008), The Honeymoon is over: The U.S.-China WTO Intellectual Property Complaint, 32 Fordham Int’l L.J. 2008, 2013, 146–156.

  120. 120.

    See for example the decision of the Supreme Court of Estonia of 14 January 2013, case No. 3-1-1-112-12, where the Court acquitted an individual convicted for copyright infringement by two courts in lower instances. The Estonian Supreme Court argued that “commercial scale” cannot be interpreted broadly, and that intention is not sufficient in order to satisfy the threshold of financial gain or commercial purposes of the infringing acts, which should be systematic or repetitive in nature.

  121. 121.

    In the European Union, the Court of Justice has repeatedly stated that “the principle of the legality of criminal offences and penalties implies that Community rules must define clearly offences and the penalties which they attract”. The CJEU has further emphasized that the principles of legal certainty and legality of criminal offenses and penalties are “satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable”. ECJ, Case C-308/06, International Association of Independent Tanker Owners (Intertanko) and Others v. Secretary of State for Transport, Judgment of the Court (Grand Chamber) of 3 June 2008, ECR I-04057, para. 71.

  122. 122.

    The phrase is covered for example by Article 8(2) ECHR: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society”. See also for a discussion X. Seuba (2015), Human Rights and Intellectual Property Law at Bilateral and Multilateral Levels: Substantive and Operational Aspects, in C. Geiger (Ed.), Research Handbook on Human Rights and Intellectual Property.

  123. 123.

    In Kruslin v. France, No. 11801/85 of 24 April 1990, ECHR, para. 27, the European Court of Human Rights established that “the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law”.

  124. 124.

    See in this sense Weber and Saravia v. Germany, No. 54934/00 of 29 June 2006, ECHR, paras. 93-95, and Liberty and others v. the United Kingdom, No. 58243/00 of 1 July 2008, para. 63.

  125. 125.

    See in this sense Novik v. Ukraine, No. 48068/06 of 18 March 2009, ECHR, para. 19, unreported.

  126. 126.

    See Article 9(1) ICCPR, corresponding at international level to the standards in Article 9 UDHR. At the regional level see Article 5(1) ECHR; Article 6 EU Charter of Fundamental Rights; Article 7(3) of the American Convention on Human Rights (ACHR) or Article 6 of the African Charter on Human and Peoples’ Rights.

  127. 127.

    See Commission on Human Rights, Report of the Working Group on Arbitrary Detention, Chairperson-Rapporteur, Leila Zerrougui: Civil and Political Rights, Including the Question of Torture and Detention, E/CN.4/2006/7, 12 December 2005, para. 63.

  128. 128.

    Article 49(3) of the EU Charter of Fundamental Rights reads as follows: “The severity of penalties must not be disproportionate to the criminal offence”. See for a comment J. Griffiths (2015), Enforcement of Intellectual Property Rights and the Right to a Fair Trial, in C. Geiger (Ed.), Research Handbook on Human Rights and Intellectual Property.

  129. 129.

    See R.M. Hilty, A. Kur & A. Peukert (2006), Statement of the MPI for Intellectual Property, Competition and Tax Law on the Proposal for a Directive of the European Parliament and the Council on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights, 37 IIC 2006, 970.

  130. 130.

    See in this spirit the European Court of Human Rights, reiterating that in order to make an act a criminal offense, there has to be evidence to justify that “the act has been injurious to moral standard” in a given society or that there has been some “public demand for stricter enforcement of the law”. See Dudgeon v. the United Kingdom, No. 7525/76 of 22 October 1981, para. 60. See also C. Geiger (2014), The Anti-Counterfeiting Trade Agreement (ACTA) and Beyond: Towards a Differentiated Approach to Criminal Enforcement of Intellectual Property Rights at Global Level, in P. Roffe & X. Seuba (Eds.), The ACTA and the Plurilateral Enforcement Agenda: Genesis and Aftermath, p. 100.

  131. 131.

    See in this sense D. Lefranc (2012), Historical Perspective on Criminal Enforcement, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 126, stating: “We should strive to maintain an overall coherence of both civil and criminal sanctions. The principle of such penalties does not appear to be debatable. Their severity though is controversial”.

  132. 132.

    See M. Bitton (2013), Rethinking the Anti-Counterfeiting Trade Agreement’s Criminal Copyright Enforcement Measures, 102 J. Crim. Law Criminol. 2013, 77. See also G.S. Moohr (2003), The Crime of Copyright Infringement: An Inquiry based on Morality, Harm and Criminal Theory, 83 B.U. L. Rev. 2003, 778: “Criminal theory explains that criminal sanctions are appropriate when conduct is harmful to the community or when it offends notions of morality. The present inquiry into the harm and morality of copyright infringement indicates that neither principle provides robust support for treating infringement as a crime, especially for personal use infringement”.

  133. 133.

    See for example A. Wechsler (2012), Criminal Enforcement of Intellectual Property Law: An Economic Approach, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 150; and G.S. Moohr (2003), The Crime of Copyright Infringement: An Inquiry based on Morality, Harm and Criminal Theory, 83 B.U.L. Rev. 2003, 747, who also notes: “When the legal standard is evolving and a community norm is not yet in place, criminal penalties offend notions of due process, fairness, and commonly held ideas about notice and legality”, p. 776.

  134. 134.

    See also X. Seuba (2015), Human Rights and Intellectual Property Law at Bilateral and Multilateral Levels: Substantive and Operational Aspects, in C. Geiger (Ed.), Research Handbook on Human Rights and Intellectual Property.

  135. 135.

    See P.K. Yu (2011), The TRIPS Enforcement Dispute, 89 Neb. L. Rev. 2011, 2013, L. 1114; K. Gracz (2013), On the Role of Copyright Protection in the Information Society, Anti-ACTA Protests in Poland as a Lesson in Participatory Democracy, 4 JIPITEC 2013, 21. For example, in the European Union, the Proposal for a Directive of the European Parliament and of the Council on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, COM(2013) 813 final, Brussels, 28 November 2013, contains both in its Recitals and in the body of the text important safeguards based in fundamental rights, such as in Recitals 14 (fair trial) and 23 (fundamental rights), and also Articles 10 and 12 (fundamental rights and freedom of expression).

  136. 136.

    See for example the decision of the US Supreme Court in Reno v. American Civil Liberties Union, 521 US 844 (1997), para. 872.

  137. 137.

    According to T. Hardy (2002), Criminal Copyright Infringement, 11 William and Mary Bill of Rights Journal 2013, L. 311, “[d]istinctions between criminal law and civil law usually emphasize the greater magnitude or scope of the wrongdoing addressed by the former over the latter. In particular, the justification for wrongdoing to be a matter of the state’s interest is that the activity is egregious enough to affect or offend the entire community”.

  138. 138.

    See for example G.S. Moohr (2003), The Crime of Copyright Infringement: An Inquiry based on Morality, Harm and Criminal Theory, 83 B.U. L. Rev. 2003, 778: “Even after setting aside the significant problems in measuring the losses of copyright holders, harm caused by copying for personal use differs from that caused by competitive infringers or by those who facilitate infringement for commercial purposes”.

  139. 139.

    See in this sense R.L. Okediji (2003), Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement, 17 Emory Int’l L. Rev. 2003, 819; H. Grosse Ruse-Khan (2011), The (Non) Use of Treaty Object and Purpose in Intellectual Property Disputes in the WTO, MPI for Intellectual Property and Competition Law Research Paper Series No. 11–15, p. 433; M. Land (2012), Rebalancing TRIPS, 33 Mich. J. Int’l L. 2012, 433.

  140. 140.

    As one author underlines, “whether the society respects given law and obeys particular legal norms depends not only on the normative reality, but also on the way in which the society perceives the particular branch of law. What the general public thinks the law says and how it apprehends respective legal acts is equally important for the internalization of the legal norms as what the law actually says. The importance of the image of law originates in the fact that both legal and social norms, as well as the process of their internalization, are social facts” (see K. Gracz (2013), On the Role of Copyright Protection in the Information Society, Anti-ACTA Protests in Poland as a Lesson in Participatory Democracy, 4 JIPITEC 2013, 26 et seq. (emphasis in original).

  141. 141.

    See also I.D. Manta (2011), The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harv. J.L. & Tech. 2011, 469, who states that “there is a danger of overly harsh sanctions and individuals’ loss of respect for copyright and criminal law generally if, given the widespread culture of file-sharing, the law is perceived as criminalizing ‘everybody’”.

  142. 142.

    In this sense, during the TRIPS Agreement negotiations, India and Hong Kong suggested that only infringements that have harmed the interests of society or that pose a threat to society, and not merely those of a private party, should be criminalized. See A. Adam (2011), What is “Commercial Scale”? A Critical Analysis of the WTO Decision in WT/DS362/R, 33 EIPR 2011, 346.

  143. 143.

    See in this sense the case of the lost battle against music file-sharing, C. Geiger (2012), Counterfeiting and the Music Industry: Towards a Criminalization of End Users? The French “HADOPI” example, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 386. For an economic perspective see A. Wechsler (2012), Criminal Enforcement of Intellectual Property Law: An Economic Approach, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research, p. 128.

  144. 144.

    For a historical, economic and psychological perspective on criminal enforcement, see the chapters by D. Lefranc (2012), Historical Perspective on Criminal Enforcement; A. Wechsler (2012), Criminal Enforcement of Intellectual Property Law: An Economic Approach and A. Peukert (2012), Why do “Good People” Disregard Copyright on the Internet?, in C. Geiger (Ed.), Criminal Enforcement of Intellectual Property: A Handbook of Contemporary Research.

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    Christophe Geiger

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  1. Max Planck Institute for Innovation and Competition, Munich, Germany

    Hanns Ullrich

  2. Max Planck Institute for Innovation and Competition, Munich, Germany

    Reto M. Hilty

  3. Max Planck Institute for Innovation and Competition, Munich, Germany

    Matthias Lamping

  4. Max Planck Institute for Innovation and Competition, Munich, Germany

    Josef Drexl

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Geiger, C. (2016). Towards a Balanced International Legal Framework for Criminal Enforcement of Intellectual Property Rights. In: Ullrich, H., Hilty, R., Lamping, M., Drexl, J. (eds) TRIPS plus 20. MPI Studies on Intellectual Property and Competition Law, vol 25. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-48107-3_21

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