Intellectual Property Theft

Intellectual property (IP) rights are the rights given to individuals over the creation of their minds. These rights are afforded legal protection for a specified period of time during which the creator of the intellectual property has exclusive rights to this property. Intellectual property has three principal categories: copyrights, which govern the IP of authors of literary and artistic works (books, writings, and musical compositions), as well as the rights of performers (singers and actors) and those responsible for the dissemination of these works (film and record producers); trademarks, which are the indicia (signs, words, or symbols) used by manufacturers to distinguish their products from those of others. These marks may consist of the same mark applied to a number of different products or they may involve the application of different marks to unrelated products. Owners of registered trademarks are entitled to their exclusive use. Finally, there are patents, which govern the IP of those creating industrial property (for example, new technology, processes, and designs) and may be held by individuals or the corporations which employ them.

Protection of IP, in all its forms, is important for a variety of reasons. As far as the creators of IP are concerned, exclusive rights reward creative work in the arts (copyright); they allow trademark owners to enjoy the goodwill associated exclusively with their marks; and patents encourage research and development into new products and processes. Properly enforced, the rights associated with IP ensure that not only do the creators of IP benefit but so does society as a whole; when not properly enforced, misuse of IP affects both the private benefits that accrue to its creators and society at large. Consider, for example, the following potential consequences for society when IP is misused: Research and development are discouraged and therefore economic growth is reduced; new cures for life-threatening diseases are delayed because of the greater uncertainty surrounding future returns; misuse of trademarks on pharmaceutical products can cause serious injury or death; organized counterfeiting exacerbates the problems associated with organized crime.

At the international level protection of copyright was enshrined by the Berne Convention for the Protection of Literary and Artistic Works, 1886 (and subsequently revised, for example, in Paris, 1896; Berlin, 1908; Rome, 1928; and, most recently, by the TRIPS Agreement, 1994). The Berne Convention and its successors established a series of guidelines and the minimum level of protection to be afforded to copyright. For example, works originating in one of the contracting states were to be given the same protection in each of the other contracting states as the former gave to its own subjects. The Convention provided for “moral rights” —the right to claim authorship of the work and the right to object to any modification of the work that was prejudicial to the author's reputation. The Convention stipulated that the duration of copyright protection was to be 50 years after the author's death.

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The U.S. movie industry lost an estimated $1.25 billion from piracy, including from counterfeit DVDs, from 1998 to 2002.

During the Uruguay Round negotiations preceding the TRIPS agreement, it was accepted that the Berne Convention generally provided adequate standards of copyright protection and so the focus was on extending the provisions laid down in the last Convention (Paris, 1971). However, signatories do not have rights or obligations under the TRIPS Agreement in respect to “moral rights.” Among the key extensions that TRIPS made to the Berne Convention were that copyright would be extended to expressions; the provisions of the Berne Convention that apply to literary works would be extended to computer programs; and databases would be protected even where the data contained on them was not subject to copyright protection. In the case of computer programs, authors would have the right to authorize or prohibit commercial rental to the public of originals or copies of their copyright work. The duration of copyright protection was retained at 50 years (but 20 years for broadcasting organizations).

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