Comparative Study of Criminal Enforcement of IP and Reform Suggestions

Abstract This chapter summarizes criminal enforcement regimes of Intellectual Property (IP) in the major Asian jurisdictions under study, assesses their civil remedies for IP Infringement, identifies their fundamental problems, reflects further on criminal enforcement of IP, and concludes by proposing reform suggestions for leading IP jurisdictions, Asian jurisdictions, and the WTO community. Problems in the criminal enforcement of IP in major Asian jurisdictions include inherent arbitrariness and lack of coherence, sweeping chilling effects, gaming and corruption within the criminal justice system, and the risk of double and triple jeopardy arising from a single infringement. Reform suggestions for Asian jurisdictions include improving civil enforcement mechanisms; rationalizing IP crimes by aligning criminal punishments for IP infringement and imposing fines first—or fines alone—where appropriate; incrementally decriminalizing certain IP crimes; sequencing criminal procedures after civil procedures; and improving the initiation, investigation, and prosecution of IP crimes.