Addressing Global Scope Of Intellectual Property Law

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The author(s) shown below used Federal funds provided by the U.S.Department of Justice and prepared the following final report:Document Title:Addressing Global Scope of IntellectualProperty LawAuthor(s):Hedi NasheriDocument No.:208384Date Received:January 2005Award Number:1700-218This report has not been published by the U.S. Department of Justice.To provide better customer service, NCJRS has made this Federallyfunded grant final report available electronically in addition totraditional paper copies.Opinions or points of view expressed are thoseof the author(s) and do not necessarily reflectthe official position or policies of the U.S.Department of Justice.

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.Addressing Global Scope of Intellectual Property LawByHedi NasheriPrepared for the National Institute of Justice, The International CenterDepartment of JusticeNovember 2004

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.TABLE OF CONTENTSIntroduction. 1Research Methodology . 2What Is Intellectual Property? . 4Different Categories Of Intellectual Property. 5Industrial Property . 5Copyright and Related Rights. 7Intellectual Property Crimes . 8Future Economic Crime Risks . 9Hidden Value And Estimated Losses Of Intellectual Property Theft. 11Magnitude Of The Problem . 14Different Types Of Piracy. 15Digital Technology . 15Optical Disc Piracy . 16Internet Piracy. 17Signal Theft . 18Broadcast Piracy . 19Regional Overview of Piracy. 19North America . 20Asia/Pacific . 20Europe, Middle East & Africa . 21Typical Affected Products . 23Why Counterfeiting And Piracy Are On The Rise . 27IACC’s “Special 301” Report To The United States Trade Representative. 29Priority Foreign Countries . 31IACC’s Priority Watch List . 33IACC’s Watch List . 39Technological Advances And Its Impact On Intellectual Property Law and Policy . 41The Internet. 41Intellectual Property Laws . 44Conflicts Of Laws . 45The European Initiatives . 45Criminalization Of Intellectual Property Violations In The United States. 47Anti-piracy Laws In The United States . 47i

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.TABLE OF CONTENTSExamples Of Legislative Actions . 48Border Enforcement. 52Civil Enforcement. 52Criminal Enforcement. 53Significant Prosecutorial Accomplishments . 53Operation Decrypt. 53Operation Buccaneer. 54Operation Bandwidth . 55Operation Digital Piratez . 56United States v. Ke Pei Ma, et. al. . 56United States v. Rocci. 57United States v. Mynaf . 57William Haskell Farmer. 58Drug Operation In Queens New York . 58John Sankus . 59Mark Dipadova . 59Software Piracy Ring . 59Chinatown In New York City . 60Counterfeit Computer Software. 60Counterfeit Clothing . 60Italian Counterfeiting Group. 61Drug Ring In New York . 61Initiatives Toward Enforcement Of Intellectual Property Rights . 61World Trade Organization . 63The Agreement On Trade Related Aspects Of Intellectual Property Rights . 64The United States Position. 65Global Anti-Counterfeiting Group. 65The International Anti-Counterfeiting Coalition . 65Intellectual Property Crimes Are Perceived As Victimless Crimes . 66Law Enforcement Challenges . 67What Needs To Be Done . 68Recent Efforts Toward Protection Of Intellectual Property Rights . 69Possible Solutions for Intellectual Property Crimes . 70ii

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.TABLE OF CONTENTSMonitoring By The Private Sector. 70The Use Of Technical Devices . 70Sanctions And Other Means Of Enforcing Intellectual Property Rights. 71Best Practices for Enforcement of Intellectual Property Rights . 71Enforcement Provisions Under TRIPS . 72Future Policy Consideration For Protection Of Intellectual Property Rights . 75Future Research Issues. 76iii

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.IntroductionThe use of intellectual property (IP) is a growing concern in both the criminal and civiljustice systems due to the growing number of products that can be reproduced quickly andinexpensively with little chance of detection. The economic impact of the misuse and theft ofintellectual property is far-reaching. The copying of software, movies, video games, and music inways that deny publishers and authors their legal rights have drawn the most attention, buttrademark and patent infringement, corporate espionage, computer intrusions, theft and sale oftrade secrets, copyright violations, and international smuggling and transmission of copyrightedmaterials also have been identified as problems. The National Institute of Justice sponsoredseveral studies to examine the nature of this problem, to discover what is known about its extentand the major justice-related issues it creates, and to develop recommendations for futureresearch in this area. As part of its International Center’s research agenda to enhanceunderstanding of intellectual property crimes (IPC) and its implications for practice, funding wasprovided to analyze the current state of law and enforcement efforts for protection of intellectualproperty rights (IPRs), and its actual and potential uses.In essence, this study represents an assessment of the “state of the art,” as well asconcrete evidence of weaknesses in current law, its enforcement domestically andinternationally, problems of application, training issues, and other matters that can be used toassist NIJ in its research agenda in this untapped area by researchers. While the broader interestof this project was to examine the policy issues associated with protection and enforcement ofIPRs, the results of the current project provide a starting point for a critical analysis of the currentstate of laws, law enforcement, and potential threats of IPC in a global context. This study is notintended to provide solutions to all the problems that it identifies and it is my hope that the NIJ1

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.provides adequate funding and resources so that a comprehensive study in this area can beconducted.Research MethodologyTwo research methods were utilized for this study:A.Archival Review – An extensive review of federal regulations, case reports,journal articles, speeches, testimony, arrest records, indictments, court records, GAO reports,Congressional hearings reports, agency reports, seminar reports and newspaper articles.B.Primary Source Interviews– Interviews with selected interest groups, includingcorporate security professionals, security consultants and federal prosecutors other governmentofficials in the Department of Justice and the FBI who play key roles in prosecution andinvestigation of criminal activities in this area were conducted.The following questions were raised with officials and agencies interviewed:1.2.3.4.5.6.What is IP and what are IPRs?How can IP be misappropriated?Does IP misappropriation constitutes a crime?What law enforcement initiatives domestically and internationally have takenplace?Why criminalize IP violations?What future research is needed in this area?The following organizations were contacted in connection with this project:Federal Law Enforcement ContactsComputer Crime and Intellectual Property Section (CCIPS), Department of JusticeIntellectual Property Rights Coordination CenterFinancial Crimes Section, Federal Bureau of InvestigationU.S. Customs Service, Intellectual Property Rights Program & Intellectual PropertyRights BranchTrademark Organization ContactsUnited State Patent and Trademark Office (USPTO)International Anti-Counterfeiting Coalition (IACC)2

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.International Trademark Association (INTA)Copyright Organization ContactsLibrary of Congress Copyright OfficeBusiness Software Alliance (BSA)Interactive Digital Software Association (IDSA)International Intellectual Property Alliance (IIPA)International Intellectual Property Institute (IIPI)Intellectual Property Owners Association (IPO)The World Intellectual Property Organization (WIPO)“Imagination is more important than knowledge”1 (Albert Einstein)We must acknowledge at the outset that, for most people, IP is either an unknown,misunderstood or mysterious term. Technology and creative arts pervade modern society, yetfew actually realize that their daily lives are surrounded by IP creations from which legal rightsof all sorts, including their own, arise. Building public awareness of the role of IP is key tofostering a broad understanding of what IP is and respect for the system that promotes andprotects IPRs.3

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.What Is Intellectual Property?IP is the term that describes the ideas, inventions, technologies, artworks, music andliterature, that are intangible when they are first created, but become valuable and tangible asthey become products. The word “property” is used to describe this value, because the termapplies to inventions, works and names for which a person or group of persons claimsownership. Ownership in this context is important because prospect of potential economic gainprovides a powerful incentive to innovate. IP, very broadly, means the legal rights which resultfrom intellectual activity in the industrial, scientific, literary and artistic fields.According to the World Intellectual Property Organization (WIPO) IP shall include rightsrelating to the following: literary, artistic and scientific works,performances of performing artists, phonograms, andbroadcasts,inventions in all fields of human endeavor,scientific discoveries,industrial designs,trademarks, service marks, and commercial names anddesignations,protection against unfair competition,and all other rights resulting from intellectual activityin the industrial, scientific, literary or artistic fields.”2Protectable property interests are present in both real propertyand IP. Real property is a commonly understood concept; it is any physical or tangible property,such as a house, a watch, or a piece of land.3 IP on the other hand is not usually something youcan touch, but it exists and has the same value. Copyrights, patents, trademarks and trade secretsare all forms of IP.4 IPRs refers to the legal rights that correspond to intellectual activity in theindustrial, scientific, and artistic fields. These legal rights, most commonly in the form of4

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.patents, trademarks, and copyright, protect the moral and economic rights of the creators, inaddition to the creativity and dissemination of their work.Different Categories Of Intellectual PropertyIP is divided into two categories: industrial property and copyright.5 Industrial property,which is part of IP, extends protection to inventions and industrial designs. Industrial propertyincludes patents, trademarks, industrial design, and geographic indications of source.6 Whereascopyright protects literary and artistic works such as novels, poems, plays, films, musical works,drawings, paintings, photographs, sculptures and architectural designs.7Industrial PropertyIndustrial property rights make it possible for the creators of innovations (goods,processes, apparatus, etc.) to establish themselves more readily, to penetrate new markets with aminimum of risk, and to amortize the investments made in the research that led to theinnovations in the first place. In a practical sense, these innovations become the spearhead ofsome of the most advanced technology. This is becoming more and more apparent in a modernworld increasingly dominated by technology.Patent (Invention)A patent is an exclusive right granted for an invention (aproduct or a process that provides a new way of doing something,or offers a new technical solution to a problem). It providesprotection for the invention for a limited period, generally 20 yearsPatentfrom the filing date, in the country or countries in which it is patented, in exchange for theinventor’s public disclosure of the invention.5

This document is a research report submitted to the U.S. Department of Justice. This report has notbeen published by the Department. Opinions or points of view expressed are those of the author(s)and do not necessarily reflect the official position or policies of the U.S. Department of Justice.TrademarkA trademark or “mark” is a distinctive name, logo or sign8identifying the sou

understanding of intellectual property crimes (IPC) and its implications for practice, funding was provided to analyze the current state of law and enforcement efforts for protection of intellectual property rights (IPRs), and its actual and potential uses. In essence, this study represents an assessment of the “state of the art,” as well as

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