How enforcement works the role of judicial culture and education
-
Upload
susan-isiko -
Category
Law
-
view
39 -
download
0
description
Transcript of How enforcement works the role of judicial culture and education
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!