Policy Considerations

Policy Considerations 1. Introduction 2. Policy considerations 3. Practical measures

Policy Considerations a. Intellectual property (IP) is about private property rights. Enforcement of IP, therefore, has the same objectives as enforcement against trespassing, namely: a) Stopping/preventing infringement b) Recovering damages

Policy Considerations b. But because IP is about intangible assets, infringement (trespassing) may be very difficult to detect and stop. This explains the importance of some measures like provisional (interlocutory) injunctions and the right of information.

Policy Considerations c. Moreover, because IP is about intangible assets, “trespassing” does not prevent their use by the owner (possession brings no material or physical exclusivity). Thus, not only detection is more difficult, but also damages require different elements to be assessed.

Policy Considerations d. Because of IP is intangible, there is no immediate feeling of loss. The sense of illegality or illicit becomes more subtle. For this reason, reasonable, law-abiding consumers may have no qualms in indulging with infringing IP rights (thinking they are not causing a loss to anyone).

Policy Considerations e. For the same reason courts tend also to be very tolerant and soft on infringers. Besides, because many IP assets require major investment, their owners may be large multinational companies. Courts may have also the tendency of “protecting” small infringers against large IP owners.

Policy Considerations f. Consequently, IP infringement is socially deemed as a minor violation of the law. Which transforms IP infringement into an easy way of making “cash” for organized crime. Therefore, IP infringement is not only a matter of a college student who makes an illicit copy of one computer game: it has become a major source of funding for serious, anti-social crimes, like drug and weapon trafficking, and, increasingly, terrorism.

Policy Considerations g. Moreover, even if IP is about private property rights, IP infringement leads to consumer deception and discouragement of creation and invention.

Policy Considerations 2. Policy considerations

Policy Considerations In result of all those initial considerations, enforcement of IP must be: a) effective b) fair and equitable c) balanced (coherent and consistent with the framework of a country’s general enforcement of law)

Policy Considerations 3. Practical measures

Policy Considerations a) to give priority to private initiative or rather rely on ex officio enforcement? b) to attribute the public prosecutor’s office a pro-active role in all proceedings involving IP infringement or reserving that role for pre-determined proceedings (for example, those involving piracy and counterfeiting)?

Policy Considerations c) should courts be more tolerant as to the plaintiff’s obligation to submit evidence or should they treat evidence as under any other proceeding? d) but in the event of information under the control of the defendant, he is obliged to submit it

Policy Considerations e) the IP owner should be informed about the identity of those involved in the infringement f) should there be tolerance as to de minimis imports?

Policy Considerations g) should there be tolerance as to goods in transit? h) should law enforcement agencies and the IP office cooperate? i) should infringement proceedings be concentrated in specialized law agencies and courts?

Policy Considerations Thank you! If you have any questions as regards this presentation, please do not hesitate to contact nuno.carvalho@wipo.int

Policy Considerations