• 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  

 

Types of intellectual property

 

Intellectual property includes copyrights, trademarks, patents and trade secrets. Each form of intellectual property is explored in further detail below.  

 

Copyrights

Copyrights  include "literary and artistic works," which are described in Article 2(1) of the Berne Convention for the Protection of Literary and Artistic Works of 1886 as,

The expression 'literary and artistic works' shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

In addition to the Berne Convention, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961 (Rome Neighbouring Rights Convention) also protects copyrights and delineates the rights of copyright holders. The World Intellectual Property Organization (WIPO), the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) jointly administer this convention. WIPO, ILO and UNESCO also jointly administer the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms of 1971 (Geneva Phonograms Convention). "Recognizing the profound impact of the development and convergence of information and communication technologies on the production and use of performances and phonograms," WIPO's Performances and Phonograms Treaty of 1996 covers the rights of "performers (actors, singers, musicians, etc.); and …producers of phonograms (persons or legal entities that take the initiative and have the responsibility for the fixation of sounds)" "in the digital environment" (WIPO, n.d.). Additionally, WIPO's Copyright Treaty of 1996, "a special agreement under the Berne Convention…[,] deals with the protection of works and the rights of their authors in the digital environment…[including]computer programs, whatever the mode or form of their expression… and …compilations of data or other material ("databases") (WIPO, "WIPO Copyright Treaty").National laws (e.g., Burundi, Law No. 1/021 of 30 December 2005, on the Protection of Copyright and Related Rights) and regional treaties also exist that protect copyrights (e.g., Organization of American States (OAS) Inter-American Convention on the Rights of the Author in Literary, Scientific, and Artistic Works of 1947).

The infringement of copyright protection online is known as digital piracy, which involves the uploading, streaming, downloading and sharing of copyrighted works (e.g., books, music, and films) beyond authorization for access, use and distribution prescribed by law. A case in point was Napster, an online platform that enabled the illegal distribution of music through peer-to-peer file sharing ( A&M Records, Inc. v. Napster, Inc., 2001). Copyright infringement also occurred on other peer-to-peer file sharing and Torrent sites (such as Kazaa, Limewire, and PirateBay), and cryptolockers (i.e., sites that provide cloud storage and sharing services to clients; e.g., Megaupload) (Drath, 2012). Like other forms of cyber-enabled intellectual property crime, digital piracy deprives the authors and publishers of copyrighted works of economic returns on their creations, property and labour. For example, HBO (a US channel network that requires viewers to pay to view content) experienced millions of dollars in lost US revenue when episodes of one of its TV series, Game of Thrones, were leaked online for free viewing (Denham, 2015).Scripts of Game of Thrones' episodes and the unaired episodes of the HBO TV shows were also leaked online following a data breach that HBO experienced in 2017 (Gibbs, 2017). 

 

Trademarks

Trademarks  are identifiers that distinguish the source of a good or service (Maras, 2016). This source can be either a business, person or geographical location. Trademarks can include logos, symbols, designs, names, and slogans, among other things, which belong to and distinguish between goods, services, and brands. The identifiers that make up trademarks acquire value through the labour, money, knowledge, and the skills of the trademark owners. The value acquired is based on the characteristics, quality and/or reliability of the good or service. Trademarks protect owners of the trademark from unfair competition practices that seek to profit from the owner's investment in the development and/or provision of the good or service (WIPO, 1993). Trademarks also protect consumers by helping them recognize the source of a good or service.

Geographical indications (or appellations of origin)  are also a protected form of intellectual property. Geographical indicators, which "are typically used for agricultural products, foodstuffs, wine and spirit drinks, handicrafts, and industrial products" (WIPO, n.d.), cannot be used unless the product was developed in that region according to standards of practice. Article 2(1) of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958, defines "appellation of origin" as the "geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors." The geographical indication of a product is a symbol of its quality and the reputation of the place of its creation (Article 2(2) of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958). For this reason, the geographical indication is considered as a form of intellectual property.

International classification systems have been developed for trademarks. Specifically, an international classification system (the Nice Classification) was established for trademarks pursuant to the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 1957. The International Trademark System (also known as the Madrid system) was established as a centralized trademark registration and management system (WIPO, n.d.) to enable individuals to submit a single trademark registration and fee that can protect their trademark in the Madrid Union. According to WIPO, the Madrid Union is made up of the 117 contracting parties to the Madrid Agreement Concerning the International Registration of Marks of 1891 (and its subsequent revisions and amendment) and Madrid Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 1989 (and its subsequent amendments). What is more, the International System of Appellations of Origins, a centralized system enabling the submission of a single appellation of origin registration and fee, was established to protect the appellation of origin in 28 Contracting States of the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958 (WIPO, n.d.).

International treaties, such as the Trademark Law Treaty of 1994, harmonized trademark applications and registrations among contracting parties. The Singapore Treaty on the Law of Trademarks of 2006, amended and updated the Trademark Law Treaty of 1994, by, among other things, enabling electronic trademark applications and registrations (Maras, 2016). Similar to copyrights, national laws (e.g., Afghanistan, Trademark Registration Law of 2009; Andorra, Law on Trademarks of 1995; Cuba, Decree-Law No. 228 on Geographical Indications of 2002; and Cuba, Decree-Law No. 203 on Trademarks and Other Distinctive Signs of 1999) and regional treaties (e.g., the Commonwealth of Independent States' Agreement on Measures for the Prevention and Repression of the Use of False Trademarks and Geographical Indicators of 1999, and the Organization of American States' General Inter-American Convention for Trade Mark and Commercial Protection of 1930) protect trademarks.

Trademark counterfeiting (i.e., a good or service that carries the trademark of the owner but is not a legitimate good or service of the owner) is a global issue and concerns have been raised that this form of counterfeiting funds organized crime (discussed in Cybercrime Module 13 on Cyber Organized Crime), terrorism, and other forms of serious crime (UNODC, 2013). Trademark products that are counterfeit include jewellery, accessories, clothing, shoes, electronics, toys, appliances, manufacturing parts, food and (alcoholic and non-alcoholic) beverages, personal care and hygiene products, and pharmaceuticals, to name a few. These counterfeit products raise serious health, safety, labour and environmental issues (UNODC, 2014). These counterfeit trademark products are bought and sold in person and online (Maras, 2016). Even the logos, packing, and other identifying industrial designs of the counterfeit goods could be purchased offline and online (Albanese, 2018).

 

Patents

Patents are novel and unique creations, innovations, and inventions that have been registered with a governing body, which may extend protections nationally and/or internationally. Patents proscribe the use and exploitation of innovations without the authorization (i.e., explicit consent or permission) of the patent owner. Design patents (or industrial designs) are also a protected form of intellectual property. Industrial designs are considered a form of intellectual property because these designs are created with the specific purpose of being aesthetically pleasing to consumers and impacts consumers' choices between products. Industrial designs, therefore, impact the marketability and commercial value of products (WIPO, 2006).

Like trademarks, international classification systems have been developed for patents. In particular, an international classification system (the Locarno classification) for registering industrial design was implemented pursuant to the Locarno Agreement Establishing an International Classification for Industrial Designs of 1968. An international classification system (the International Patent Classification) for patents was also established by the Strasbourg Agreement Concerning the International Patent Classification of 1971. The International Design System (i.e., the Hague System for the International Registration of Industrial Designs), a centralized registration system developed pursuant to the Hague Agreement Concerning the International Registration of Industrial Designs of 1925 and its Acts (the Hague Act of 1960 and the Geneva Act of 1999), was created to enable companies to register and protect up to 100 designs in the 68 contracting parties to the agreement (WIPO, n.d.).

International laws, such as the Paris Convention for the Protection of Industrial Property of 1883 (as amended in 1979) and its subsequent amendments, which focus on the "protection of industrial property[that] has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition," and applies "to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour" (Article 1). Moreover, the Patent Cooperation Treaty of 1970, and the Patent Law Treaty of 2000, were implemented to harmonize patent applications and registrations among contracting parties by enabling individuals to file a single patent application to protect the patent in 152 Contracting States (Maras, 2016; WIPO, "The PCT"). Patents are also protected under regional treaties, such as the Council of Europe's European Convention relating to the Formalities Required for Patent Applications of 1955, the Convention on the Grant of European Patents (European Patent Convention) of 1973, and the Eurasian Patent Convention of 1994, which seek to strengthen cooperation on patent protection and harmonize protective practices across contracting parties, as well as national laws (e.g., Cyprus, Patent Law of 1998; Nepal, The Patent, Design and Trade Mark Act, 2022 of 1965; Kyrgyzstan, Law of the Kyrgyz Republic No. 8 of 14 January 1998, on Patents (as amended up to Law No. 76 of 10 April 2015).

 

Trade Secrets

Trade secrets  are valuable information about business processes and practices that are secret and protect the business' competitive advantage (Maras, 2016). Trade secrets can include secret strategies, techniques, processes and formulas that enable businesses to maintain a competitive advantage, such as

all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing (see 18 U.S.C. § 1839(3)).

Unlike other forms of intellectual property, "trade secrets are protected without registration" (i.e., "without any procedural formalities") and thus "can be protected for an unlimited period of time" (WIPO, "How are Trade Secrets Protected?"). The criteria and standards for the protection of trade secrets (or protection of undisclosed information) are prescribed under Article 39 of the TRIPS Agreement. Specifically, under Article 39(2),

Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices…so long as such information:

(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) has commercial value because it is secret; and

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

Additionally, certain regional treaties (e.g., European Union Trade Secrets Directive of 2016) and national laws (e.g. United States, Defend Trade Secrets Act of 2016) protect trade secrets. Nationally, regionally and internationally trade secrets are protected because they are vital to a country's economic security and national security. Businesses protect trade secrets because the exposure of this information to a third party (e.g., individual, group, business, or foreign government) without authorization can economically harm them. Trade secret theft can occur offline ( economic espionage) or utilizing the Internet and Internet-enabled technologies (a form of economically-motivated cyberespionage) (Maras, 2016; other forms of cyberespionage are discussed in Cybercrime Module 14 on Hacktivism, Terrorism, Espionage, Disinformation Campaigns and Warfare in Cyberspace). In 2018, former employees of Jawbone, a now defunct company that sold wearable fitness trackers, were indicted for the possession of Jawbone's trade secrets (which were contained in "Jawbone's protected internal computer systems and cloud storage") after they accepted employment or started working at the company's competitor, Fitbit (US Department of Justice, 2018).

The purpose of the theft of a trade secret offline and/or online is to gain an unfair competitive advantage. The unauthorized disclosure of trade secrets to a foreign government, foreign agent (i.e., "officer, employee, proxy, servant, delegate, or representative of a foreign government;" 18 U.S.C. § 1839(2)), or foreign instrumentality (i.e., "any agency, bureau, ministry, component, institution, association, or any legal, commercial, or business organization, corporation, firm, or entity that is substantially owned, controlled, sponsored, commanded, managed, or dominated by a foreign government;" 18 U.S.C. § 1839(1)) can also harm national economic security.

 

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