Piracy and counterfeiting: the freedom to copy vs. intellectual property rights.

Abstract

Since 1980, many countries have passed new intellectual property laws, or revised their laws. The same period witnessed the birth of more trade associations which work to combat unauthorised copying. Nonetheless, it is estimated that piracy and counterfeiting still account for about 5% of world trade. National responses to piracy and counterfeiting are often determined by how deeply local interests are affected either way. Since the intellectual property repertoire of most developing economies is usually much smaller than that of industrialised economies, the costs to the former and the loss to the latter often polarise the globe into the strong advocates of the intellectual property system and those who advocate a freedom to copy. This thesis which focuses primarily on Nigeria and the UK, suggests that the concept of intellectual property is not alien to developing economies because many pre-literate societies had recognised and protected intangible rights which bear some semblance to the intellectual property system. Now, irrespective of any influence the system may have had on economic growth in any country, intellectual property has assumed ever greater economic significance - as a trade issue within the context of GATT. Any country wishing to benefit from GATT must respect the intellectual property rights of others. Fears that an intellectual property system makes possible the abuse of a monopoly (that may be created by virtue of intellectual property rights) are not justifiable because of various measures, including rules of competition or anti-trust that can be used to check any abuse of monopoly. The thesis attempts to categorise infringers, demonstrates the harm caused and suggests additional new criteria for liability particularly for those in a quasifiduciary relationship with right holders such as licensees, agents, employees and former business associates. It highlights some of the difficulties involved in criminalising intellectual property infringements and suggests improvements. It examines issues like the suitability of criminal sanctions to the breach of unregistered marks or patents, the relevance of presumptions, the onus of proof of a guilty mind and private prosecution. The thesis explores some of the substantive and procedural aspects of TRIPS, reveals gaps which may cause problems and recommends changes. The procedural issues discussed include: inspection and seizure orders, border control measures, the privilege against self-incrimination, and the absence of specific obligations to grant Mareva orders or create special procedures or courts for intellectual property. TRIPS' standards for patents, trade marks and copyright are addressed primarily in the light of the pharmaceutical and computer software industries. Irrespective of good laws, effective action can only be taken if right holders, law enforcement agents, judges, governments, WIPO and the World Trade Organisation demonstrate a positive response to the intellectual property cause.