Criminal Enforcement of Intellectual Property
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Criminal Enforcement of Intellectual Property

A Handbook of Contemporary Research

  • Research Handbooks in Intellectual Property series

Edited by Christophe Geiger

This wide-ranging Research Handbook is the first to offer a stimulating and systematic review of the framework for criminal enforcement of intellectual property rights. If counterfeiting constitutes an ever-growing international phenomenon with major economic and social repercussions, potentially affecting consumer safety and public health, the question of which are the appropriate instruments to enforce IP rights is a complex and sensitive one. Although criminal penalties can constitute strong and effective means of enforcement, serious doubts exist as to whether criminal sanctions are appropriate in every infringement situation. Drawing on legal, economic, historical and judicial perspectives, this book provides a differentiated sector-by-sector approach to the question of enforcement, and draws useful conclusions for future legislative initiatives at European, international and national levels.
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Chapter 12: The Directive Proposal on criminal sanctions

Johanna Gibson

Extract

The harmonization of criminal law and procedure is still in its infancy within European Union law and so the relationship between the commercial framework of intellectual property and the criminal enforcement of its standards remains an unsettled and unsettling adolescence. The Proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights is at the vanguard of the extension of EU competence, some going as far as describing it as a competency Trojan Horse. The Proposal uses concepts such as ‘intention’, ‘aiding and abetting’ and ‘inciting’, all with very different meanings in national laws, but as yet with no EU meaning. It also imposes rules on terms of imprisonment despite the differences in the law governing imprisonment and release in the various Member States. Indeed, the Proposal even requires some Member States to introduce new criminal penalties. It presents, therefore, a radical step in the development of the general acquis communautaire. It is not only a critical development for intellectual property practice and procedure in Europe but also an arguably controversial acceleration for European criminal law.

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