Criminal Enforcement of Intellectual Property
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Criminal Enforcement of Intellectual Property

A Handbook of Contemporary Research

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 13: Criminal enforcement in the US and Canada

Daniel Gervais


In recent years, the focus of multilateral discussions on intellectual property has shifted from rules such as national treatment and most-favoured nation and rights (and exceptions) to an area of law essentially ignored in the Paris and Berne Conventions, namely enforcement. Even at the 1967 Stockholm Conference, when the two Conventions were revised for the last time (except for the 1971 Appendix to the Berne Convention), enforcement was not on the radar. The issue emerged at the GATT in the 1970s. It led to a number of working groups and documents on trade in counterfeit goods, and the inclusion of intellectual property on the agenda for the Uruguay Round, which was launched in 1986. Those efforts culminated in the Agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the first multilateral instrument to contain detailed provisions on the enforcement of private1 intellectual property rights before national courts and administrative agencies (eg customs authorities) and an obligation imposed on WTO members to provide criminal sanctions for copyright piracy and trademark counterfeiting on a commercial scale (see Chapter 9 by Henning Grosse Ruse-Khan). More recently, negotiations concerning the Anti Counterfeiting Trade Agreement (ACTA) dealt primarily with enforcement and sanctions, not substantive rights. ACTA dealt in part with the level of proof that the prosecution must bear to obtain a conviction for criminal copyright infringement.

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