• E4J University Module Series: Cybercrime

• Module 11: Cyber-Enabled Intellectual Property Crime

• Introduction and learning outcomes

• Key issues

• • Intellectual property: What it is
  • Types of intellectual property
  • Causes, reasons and perceived justifications for cyber-enabled copyright and trademark offences
  • Protection and prevention efforts
  • Conclusion
  • References

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

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• First published in June 2019
  

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  This module is a resource for lecturers  

 

Intellectual property: What it is

 

The World Intellectual Property Organization (WIPO) defines intellectual property as "creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce." The rights over innovations, creations, original expression of ideas, and secret business practices and processes are protected by national and international intellectual property laws. Under Article 2(viii) of the Convention Establishing the World Intellectual Property Organization of 1967 (amended in 1979), these

rights relat[e] to: …literary, artistic and scientific works, …performances of performing artists, phonograms and broadcasts, …inventions in all fields of human endeavor, …scientific discoveries, …industrial designs, …trademarks, service marks and commercial names and designations, …protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

The access, distribution, and/or use of intellectual property without and/or beyond initial authorization and in violation of the rights of the owner or owners of the intellectual property is considered as intellectual property crime (a.k.a., intellectual property theft). Because intellectual property rights are recognized as personal property rights (Guan, 2014), intellectual property crime has been considered as a form of theft of personal property, even though it does not match the common understanding of theft (i.e., the deprivation of ownership). For example, if a person's jewellery is stolen, the person is deprived of his/her (tangible) property as the individual no longer has access to the jewellery. In the case of intellectual property, however, even if the property is "stolen" (i.e., used and consumed in an unauthorized way), the holder of the intellectual property is not denied his/her property because it is still in the individual's possession. What he/she is denied is the control, management, and economic benefit that should be derived from the subsequent use of his/her intellectual property. The deprivation of remuneration for labour (i.e., the creation of intellectual property) serves as a disincentive to the creation of intellectual property, which is viewed as essential to national economic growth (WIPO, 2009). For this reason, WIPO "promotes innovation and creativity for the economic, social and cultural development of all countries, through a balanced and effective intellectual property system."

Several international conventions, agreements, and treaties (hereafter treaties) have been implemented to protect intellectual property rights. A case in point is the Berne Convention for the Protection of Literary and Artistic Works of 1886(as amended in 1979), which delineates the obligation of states to protect intellectual property and the minimum standards for intellectual property protection. Due to concerns about the enforcement of the Berne Convention, the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994 (which entered into force in 1995) was passed. The TRIPS Agreement requires WTO countries to fulfil their obligations under the Berne Convention, among other treaties. The World Trade Organization oversees the administration of the TRIPS agreement, and provides, among other things, standards for intellectual property policies, laws and regulations, and enforcement mechanisms for the protection of intellectual property rights.

In addition to international treaties, national laws (e.g., Viet Nam, Law 36/2009/QH12 of 19June 2009, amending and supplementing a number of Articles of the Law on Intellectual Property; Azerbaijan, Law of the Republic of Azerbaijan on the Enforcement of the Intellectual Property Rights and Fight Against Piracy of 2012; Costa Rica, Law No. 8686 of 21 November 2008, on Amendment, Addition and Repeal of Various Rules Governing Matters Pertaining to Intellectual Property; Equatorial Guinea, Law of 10 January 1879, on Intellectual Property; and El Salvador, Legislative Decree No. 611 of 15 February 2017, on Amendments to the Law on Intellectual Property, to name a few) and regional treaties (e.g., Association of Southeast Asian Nations (ASEAN) Framework Agreement on Intellectual Property Cooperation of 1995, and Commonwealth of Independent States (CIS) Agreement on Cooperation in the Area of Legal Protection of Intellectual Property and on Establishment of Interstate Council on Legal Protection of Intellectual Property of 2011) have been implemented to harmonize intellectual property policies, laws, and practices across member states.

 

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