How Enforcement Works: the Role of Judicial Culture and Education

Susan Isiko Štrba

Open A.I.R Conference on Innovation and IP in Africa & 3rd Global Congress

on IP and the Public Interest 2013 Cape Town, 9 - 14 December 2013

Setting the stage - International framework

• TRIPS, WCT, WPPT, etc

• The rules

– ISPs,

– Others

• The practice

The role of judicial culture/courts

• Differences between civil and criminal enforcement – Civil tend to follow statutes – Guided by ability of judge to apply statutes to

technology/internet, thus, eg – public benefits to researchers, librarians, teachers and

students in allowing research and preserving older books from degradation served the purpose of “fair use” and benefitted society. (Authors Guild v Google Inc., SDNY, No. 05-8136 (11/14/2013)

• Often guided by norms/values outside IP, eg – general filtering systems installed for the prevention of

copyright infringements are disproportionate, violating fundamental rights. (Scarlet v SABAM)

Judicial culture/courts

– A social network “cannot be obliged to install a general filtering system, covering all its users, in order to prevent the unlawful use of musical and audio-visual work” (SABAM v Netlog)

• Level of advancement in, especially technology – Eg Spain, until recently Spain dismissed all cases

without getting into technological analysis

• Criminal enforcement more common in developed than developing – Trend of granting tougher sentences for IP

infringement than ordinary offences – But there are rare exceptions, eg

Judicial culture/courts

• Request for confinement in prison thought as necessary to deter similar conduct by others for a 20-year-old file sharer was rejected. Court reasoned that appropriate sentencing for a defendant convicted of copyright infringement included the defendant’s age, prior contacts with the criminal justice system, whether the defendant has graduated from high school, a steady employment record, family ties, whether he had genuine remorse (US v. Repp, 464 F. Supp. 2d 788 - Dist. Court, ED Wisconsin 2006).

Judicial culture/courts

• Criminal culture – Risk of harmonization,

• Risks for systems not technologically developed • Not much evidence of judicial culture in developing

countries, but some interesting example of Brazil – No legislation on ISP or hosting providers, but some cases

where, there is liability if – Was aware of existence of infringing content, imposing

duty to – filter content – Under the draft MARCO CIVIL Bill, will be liable unless

comply with judicial order (to take content down)

Enforcement Through education - WIPO

• Advisory Committee on Enforcement

• WIPO Development Agenda Recommendation 45

• WIPO Strategic Goal VI

– International cooperation in building respect for IP

WIPO Strategic Goal VI

• WIPO Advisory Committee on Enforcement

– Mechanism to coordinate work under Strategic Goal VI

• shift in focus from purely enforcement-related activities to a broader approach taking account of Member States’ socio-economic and development-oriented concerns

Building Respect for IP

• Education – WIPO Academy, etc

• Training –WIPO Academy, etc

• Build awareness and understanding of IP

• Strengthen capacity for enforcement

• Support empirically-based discussion on enforcement issues

• Technical assistance

Training and awareness-rising in the field of building respect for IP

• Various activities and forums, a variety of target groups

• Assistance in developing national strategies for building respect for IP

• Regional workshops on building Respect for IP

• Participation in the Annual Congress on Combating Counterfeiting and Piracy – Main drivers/organizers include INTERPOL

• Workshops on enforcement of IP

Training and Awareness Rising

• Training courses on the enforcement of IPRs

• Workshops on building respect for IP for judges and law enforcement officials (prosecutors, police, customs officials)

• More than just training and awareness-rising

– Mainly in developing and least developed countries

The reach of enforcement/building respect activities

• Works in partnership: – National or regional IP offices – International organizations eg WCO, INTERPOL – Regional IP organizations eg ARIPO, OAPI – Regional economic organizations, eg ECOWAS,

UEMOA (West African Economic and Monetary Union) – Universities – Public and private organizations

• Varied audience and target groups • Extends to internet e.g through collaboration

with INTERPOL

summary

• Bref: focus on strengthening police powers, streamlining judicial procedures, increasing criminal penalties, and extending surveillance and punitive measures to the Internet.

• Aim: Education to build stronger respect for IP

Research Questions

• Trends in practice – use of civil or criminal

• In case of eg criminal proceedings, if based on IP proper or use existing criminal standards? If latter, implications for countries that don’t have expertise in IP/technology.

Thank You!

Susan.isikostrba@graduateinstitute.ch