Towards a Balanced International Legal Framework for Criminal Enforcement of Intellectual Property Rights

The harmonization of the legal framework for criminal enforcement of intellectual property rights (IPR) at the regional and international level has since its inception been a sensitive and difficult issue, mainly due to the diverging moral and cultural legal conceptions of negotiating parties and because of strong sovereignty issues traditionally raised by criminal law. Against this background, the current international provisions on the subject established in Article 61 of the TRIPS Agreement only provide for a minimum standard level on criminal measures for the infringement of intellectual property rights. This situation was perceived by many developed nations as the result of an ineffective multilateral approach and led them to advance precise and tougher TRIPS-plus provisions on criminal enforcement in bilateral, plurilateral or regional agreements. These efforts to strengthen the criminal framework in an undifferentiated manner caused strong counter-reactions and even lead to the overall rejection of intellectual property rights protection in certain cases. The general tendency to criminalize end users in relation to copyright infringements on the Internet is a good example. Therefore, a balanced and differentiated set of rules for criminal enforcement of intellectual property rights needs to be considered in order to secure in the long run the acceptance of intellectual property rights within society. In this specific context, the purpose of this chapter is to reflect on the proper design of a legal framework which would provide for a legitimate protection for IPRs through adequate and efficient enforcement measures, while at the same time taking into account the public interest and basic principles of justice such as proportionality, legal certainty, procedural justice and the protection of fundamental rights. For this purpose, the chapter begins with a closer look at the norms codified in the TRIPS Agreement and explores their flexibilities, in order to verify if international standards allow Member States to implement criminal provisions on IP rights in their national legislation in accordance with their domestic needs and circumstances. Later, this chapter envisages a revision of the main requirements for the criminalization of IP infringements, especially the concept of ‘commercial scale’, with the aim to propose a balanced and differentiated legal framework. In this sense, it suggests that when elaborating new conditions for the criminal enforcement of intellectual property rights, the international legislator should propose criteria that take into account the aggravated social harm caused by the infringement