Rethinking the Role of Criminal Sanctions

Abstract This chapter examines the evolution of criminal sanctions for intellectual property (IP) infringement, noting that such penalties were not originally part of IP law but were introduced in the late twentieth century, largely in response to large-scale infringement facilitated by new technologies and analogies to property law. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) later mandated criminal procedures for wilful trademark counterfeiting or copyright piracy on a commercial scale. The chapter argues that, particularly with new technologies like AI, IP disputes should be treated as civil matters. It introduces two previously uncovered issues relevant to this argument: the creation–examination paradox and the delegalization of enforcement. The creation–examination paradox highlights how the uncontrollable production of creative works by generative AI, often using unauthorized material, vastly exceeds traditional IP systems’ ability to examine them, potentially undermining IP’s purpose of incentivizing creativity. The delegalization of enforcement refers to the shift from court litigation towards alternative dispute resolution (ADR) and private enforcement, arising partly from the paradox and leading to unexamined or weakly examined IP rights. In light of AI’s impact, the chapter advocates for rethinking, or potentially removing, criminal sanctions for infringement, suggesting that the scale of AI-generated works and the move towards delegalized enforcement support treating infringement as a civil matter.