Protection of Intellectual Property—A Myth? A Consideration of Current Criminal Protection and Law Commission Proposals
| DOI | 10.1350/jcla.68.5.398.43220 |
| Date | 01 October 2004 |
| Author | Colin R. Davies |
| Published date | 01 October 2004 |
| Subject Matter | Comment |
COMMENT
Protection of Intellectual Property—A Myth?
A Consideration of Current Criminal
Protection and Law Commission Proposals
Colin R. Davies*
This commentary addresses the current legislative framework for the
protection of intellectual property rights with particular emphasis on
criminal sanctions for infringement. It considers the international prin-
ciples behind enforcement of such rights and identifies defects in the
current criminal framework. Particular reference is made to the provi-
sions of the TRIPs Agreement with an analysis of how the UK is failing
to adhere to the underlying principles of that agreement. Conclusions
are reached on this failure and proposals made for introduction of a new
criminal framework for enforcement of these rights.
What is intellectual property?
‘Intellectual property’ is defined by the World Intellectual Property
Organisation as:
products of the mind, inventions, literary and artistic works, any symbols,
names, images and designs used in commerce.1
Intellectual property rights are defined by the World Trade Organisation
as:
. . . rights given to people over the creation of their minds and creators can
be given the right to prevent others from using their inventions, designs or
other creations.2
Intellectual property, in accordance with the definitions above, is there-
fore embodied as the product of the mind, the one thing—it is said—that
distinguishes man from beast.
Intellectual property is not a recent concept. Around 56 AD the
Japanese carried out periodic raids on the fishing villages of Korea. Their
quest? Not gold or treasures, but artisan peasants renowned for a
distinctive type of pottery, which only they produced. Instead of nego-
tiating a licence to use the designs, the artisans were simply enslaved
and transported back to Japan. Although an extreme illustration, it
encapsulates usurpation of intellectual property rights and symbolises
that the need to protect such rights is not a new phenomenon.
* Head of Intellectual Property Law, University of Glamorgan. Currently delivering a
Postgraduate Diploma in Intellectual Property Law at the Patent Office.
1 J. Davis, Intellectual Property Law, Butterworths Core Text Series 2003 (Reed
Elsevier: London) 1.
2 Ibid.
398
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