Copyright, technology, technological protection measures, role of judicial culture in developing countries, criminal enforcement, civil remedies, intellectual property education, WIPO technical assistance, role of education

1. 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

2. Setting the stage - International framework
•TRIPS, WCT, WPPT, etc
•The rules
–ISPs,
–Others
•The practice

3. 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)

4. 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

5. 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).

6. 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)

7. Enforcement Through education - WIPO
•Advisory Committee on Enforcement
•WIPO Development Agenda Recommendation 45
•WIPO Strategic Goal VI
–International cooperation in building respect for IP

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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.

15. Thank You!
Susan.isikostrba@graduateinstitute.ch