- Elgar Intellectual Property and Global Development series
Edited by Nari Lee, Niklas Bruun and Mingde Li
AbstractSophisticated digital technology enables the constant expansion of opportunities for counterfeiting and piracy activities. At this point in time, the possibilities for copying and distributing protected materials are immense and extremely effective. New technology, especially the continuous evolution of the Internet, has led to a situation where unlimited amounts of high-quality copies can be produced and distributed with tremendous ease. Ultimately, this is an environment that sets many challenges for the supervision of IPRs. Criminal penalties are recognized as being necessary for the protection of IPRs in both the Nordic countries and China. However, the reasons for enacting criminal penalties for IPR violations vary between these countries. In the Nordic countries, criminal IP measures have generally being provided for by the individual countries legislating in accordance with their own specific circumstances. Over the years, and in order to address the challenges set by technological developments and to fulfil the requirements of international treaties, these measure have been modified. China, on the other hand, has introduced criminal measures into its IPR regime largely as a result of external pressure from developed countries and to meet obligations arising under international treaties. The extent of criminal measures concerning IPRs is much wider in the Nordic countries than in China. In the Nordic countries the essential elements of IPR offences are very comprehensive and generally formatted. The starting point is that any intentional act violating intellectual property laws can be punished by the imposition of criminal sanctions. In China, acts that are punishable by the imposition of criminal sanctions are specifically described in the law. Due to differing ideological perspectives, the core principles that define criminal liability in both China and the Nordic countries also vary. The maximum penalties for IPR offences also vary significantly between the Nordic countries and China. In the Nordic countries, maximum penalties are mainly between 1,5 and 3 years of imprisonment; whereas in China, the sentences can be up to 7 years of imprisonment. In addition to imprisonment, criminal fines are also possible in all of these countries or may be ordered separately. It is difficult to say which legal system in this field is optimal. The Nordic countries are famous for their well-functioning societal systems, including the legal system in the field of criminal law. However the structure of society itself is so different between the Nordic countries and China that it is impossible to say which system is the best fit. Therefore, it can be concluded that criminal enforcement measures for IPR violations are not transplantable as such, but some features could be beneficial.
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