WIPO/IP/JU/RYD/04/12

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Policy Considerations

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

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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

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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.

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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.

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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).

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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.

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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.

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Policy Considerations

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

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Policy Considerations

• 2. Policy considerations

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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 countrys general enforcement of
  law)

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Policy Considerations

• 3. Practical measures

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Policy Considerations

• a) to give priority to private initiative or
  rather rely on ex officio enforcement?
• b) to attribute the public prosecutors 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)?

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Policy Considerations

• c) should courts be more tolerant as to the
  plaintiffs 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

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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?

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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?

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Policy Considerations

• Thank you!
• If you have any questions as regards this
  presentation, please do not hesitate to contact
• nuno.carvalho_at_wipo.int