EVOLVING JURISPRUDENCE to COMBAT DIGITAL CHALLENGES to INTELLECTUAL PROPERTY RIGHTS PROTECTION Md

EVOLVING JURISPRUDENCE TO COMBAT DIGITAL CHALLENGES TO INTELLECTUAL PROPERTY RIGHTS PROTECTION Md. Al- Ifran Hossain Mollah*

ABSTRACT

The modern Intellectual Property Rights (IPRs) regime has been greatly influenced by the rapid development of internet and digital technology. Most of the trending IPR infringement cases are expressly or impliedly connected with the exploitation of information and communication technology. Invention of sophisticated digital audio-video recording devices, Peer to Peer (P2P) networks, file hosting services, File Transfer Protocols (FTPs) has eased the access to IPRs holders for efficient dissemination of their works in the fast-moving market economy. The technological advancement which was meant to be an effective tool for the IPR holders to dissemi- nate their artistic and creative works in a convenient and effective manner, has now become a mechanism for unscrupulous exploitation of IPRs by the pirates and counterfeiters as well. The development of internet and digital technology has outpaced the legal development for the enforcement and protection mechanism of IPRs. Present status of legal framework prevailing at global, regional and domestic levels fails to synchronize with the dynamics of technological development in this regard. Absence of harmonized international policy, in certain respect, towards curbing IPRs infringement has negative impacts as well. The socio-economic and political division between the North and South as to the market dynamism of IPRs has led to a lack of uniformity. Differing socio-economic realities have also marked a visible difference of legal responses between the developing and developed countries for protecting and enforcing IPRs in digital and online environment both at the national and global levels.

Key Words: Intellectual Property Rights, Internet, Digital Media, Law.

1. INTRODUCTION

The rapid development of Internet and digital media has fuelled the tension and debate evolving around the protection of intellectual property rights. Internet technology has greatly influenced our everyday life through making the ease of access to information, communication, knowledge and entertainment. The Internet has revolutionized the computer and communications world like nothing before. After its release from military lab in 1972 for free and common use, we’ve experienced a revolutionary shifting and modification of Internet technology.1 Using internet for only communication purpose is now an out-dated concept; Internet has been in use as a strong tool for downloading and sharing movies, music, software, games, books etc.

* Senior Lecturer, Faculty of Law, Eastern University.

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Internet Relay Chats (IRCs), File Transfer Protocols (FTPs), Peer to Peer (P2P) File-sharing and hosting sites have become popular in the modern internet culture. For technologists, P2P protocols like Bit Torrent are simply efficient means for distributing large volumes of data to large numbers of requesters. Free software projects regularly provide their programs via torrents.2

Downloading and sharing of licensed digital contents through online media without the prior permission of IPR holders is now a problem having broad and extensive global as well as domestic implications. The rapid development of digital media has brought a significant change in the field of recording and copying mechanism. Magnetic reel tape, VHS cassettes or floppy disc has been successfully replaced by more improvised and sophisticated digital recording and copying devices like CD, DVD, Blu-ray Disc, Portable flash drive etc. Digital technologies allow perfect, inexpensive and unlimited copying and dissemination of content.3 Swift technological development of digital media or what we call as ‘Digital Revolu- tion in bringing a massive culture of IPR infringement has become a serious concern for individual IPR holders as well as for the related industries.

Global audio piracy has led to critical break-down in the market sale of albums and thus depriving the IPR holders from getting financial benefit from their creative and artistic works. Not only the music industry, but also the film, software and gaming industry is undergoing through this multimodal critical problem. The technological development which was meant to be a blessing for the industry’s excellence, has now posed a serious threat to their question of survival in global market economy.

How the international intellectual property law regime is going to face those challenges in combating IPRs infringement in the digital environment at the global level? Can the uniform set of laws is the resolution towards resolving this problem i.e. can the principle of ‘One size fits for all’ be applied in protecting Intel- lectual Property Rights in the mass level? How does institutional fragmentation may provide feasible solution towards the particular riddle of competing authority’s jurisdiction from the context of developed and developing country’s enforcement mechanisms?4

These perplexing questions make it an imperative to analyze and find out the legal responses towards this area of study and thus finding a solution for safeguarding intellectual property rights in a global as well as national context. The objective of this study is to critically analyze the major legal responses which have been prepared and adopted and enforced till to date to combat IPR infringement in inter

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net and digital environment. Important global, regional and national laws in protecting and enforcing Intellectual Property Rights (IPRs) shall be discussed in defining the paradigms of existing regulatory framework. It also aims at finding the appropriate legislative enactments which are available to the policy makers so as to afford protection in digital and online climate. In doing so, the study formulates a handful number of limitations of the present legal framework for the protection and enforcement of IPRs in the varying socio-economic realities between developed and developing countries.

2. TOWARDS A SUSTAINABLE INTERNATIONAL LEGISLATIVE RESPONSE: FINDING THE SCOPES

Legal development for IPRs protection and enforcement in international level has been taking place in order to cope with the increased threat to IPRs that has been growing due to rapid advancement in internet and digital technology. Interna- tional intellectual property law is a patchwork area of intersecting multilateral and bilateral agreements and harmonization of national laws. It has become an increas- ingly important and frequently litigated area, particularly in the patent, copyright, and trademark fields.5 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), WIPO Copyright Treaty (WCT), WIPO Performance and Phonogram Treaty (WPPT), Anti-Counterfeiting Trade Agreement (ACTA), Proposed Substantive Patent Law Treaty (SPLT) etc can be regarded as the outcome of the IPR production process.

This study concentrates on the international statutory responses for IPR protection and enforcement in digital environment that has been discussed under two sub-domains, namely, protection under Public International Law and relevance of Private International Law in context. Statutory responses for protecting and enforcing IP rights, and combating IPR infringement under Public International Law include major international conventions, treaties and agreements adopted by international community to redress the problem both at international and national levels. On the other hand, jurisdictional problem arising out of cross-border disputes are generally discussed under the domain of Private International Law.

3. AFFORDING PROTECTION THROUGH APPLYING PUBLIC INTERNA- TIONAL LAW

The history of legal responses for protecting IP rights and combating IPRs infringement started from the early decades of 19th century with the Berne Conven- tion for the Protection of Literary and Artistic Works in 1886. Later on, the emer- gence of the TRIPS, WCT, WPPT, and ACTA in the changing socio-economic and

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technological context seeks for stronger regulatory regime.6 The development of legal regimes for protecting and enforcing IPR in the present day context is mostly dependant on the development of public international law. Various Treaties, Conventions, Protocols and Agreements have been introduced for combating the piracy to IPRs in global perspective. The major international legislative response concerning IPR protection and enforcement revolves around agreement and treaties like TRIPS, WCT, WPPT, and ACTA. The international intellectual property system has become a network of numerous institutions with new actors establish and under new structures, and generating a welter of new norms.7 Because of different law making authorities and different legal rules embodied in international treaties or executed in corresponding international organizations, the alleged “fragmentation of international IP law” becomes a significant issue in Public International Law and International Economic Law.

3.1 How the TRIPS have been playing the leading role in protecting IPRs at global context?

The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is a multilateral agreement administered by the World Trade Organization with a view to setting down minimum standards concerning the provision of effective and appropriate measures to protect trade-related intellectual property rights through taking into account differences in national legal systems.8 This agreement establishes international minimum standards for intellectual property protection both in its substantive and enforcement provisions.

Although no specific obligations ensue from the provisions on objectives (Art. 7) and principles (Art. 8), as they set the framework for the TRIPS agreement in terms that are consistent with developing county’s interests.9 Article 10, 27 and chapter III (Art. 41-61) of this agreement is considered as the core provisions for the protection and enforcement of IP rights under the TRIPs regime. Article 10.1 provides that computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971). This provision confirms that computer programs must be protected under copyright and that those provisions of the Berne Convention that apply to literary works shall be applied also to them.

Article 27 is considered as a point of political contention between stakehold- ers in preparing international legal framework as to the patentability of software and whether to consider them as a field of technology or not. This provision has also been considered as one of the breaking points of bitter division between developed and developing countries regarding the implementation and enforcement of IPR on certain issues like pharmaceuticals, biotechnology, agriculture and computer software. 44 Page Evolving Jurisprudence to Combat Digital Challenges to Intellectual Property Rights Protection

Chapter III of this agreement disseminates the enforcement provisions under the TRIPS regime. These provisions require member countries to provide enforcement procedures, including civil or administrative remedies, as well as criminal penalties, that permit effective action against any act of copyright infringement (including acts of copyright infringement that occur in the online environment) and that constitute a deterrent to further infringements.10

The enforcement obligations under the TRIPS Agreement provides a comprehensive foundation for the development of civil, administrative and criminal procedures and remedies necessary for effective enforcement against traditional forms of copyright piracy as well as the kinds of piracy that appears in the online environment.11 Since coming into force of the TRIPS, there has been a drastic strengthening of intellectual property protection for product as well as process, increasing duration of protection and powerful new sanctions to encourage countries to adopt the new standards.12

Many developing countries hold that the TRIPS agreement is unbalanced in that it favors developed countries and transnational corporations, and at the same time is unhelpful or even harmful to their own interests. In addition, concerns have been raised about the moves to ensure that developing countries accept higher standards of intellectual property protection than the WTO requires, even before they have determined how best to implement the TRIPS agreement in ways that support economic development and poverty alleviation.13 TRIPS Agreement certainly is not the end of the process of establishing an international intellectual property regime, but merely the beginning of it.14

3.2 Applying the WIPO Copyright Treaty in online environment

The WIPO Copyright Treaty (WCT) is an international treaty on copyright law concluded by the member states of the WIPO in 1996 and entered into force in 2002. WCT is a special agreement under the Berne Convention for the Protection of Literary and Artistic Works that deals with the protection of works and the rights of their authors in the digital media.15 It was adopted to address changes in digital technology and communications, particularly the distribution of digitally protected works over the Internet. 16 This Treaty is a special agreement within the meaning of Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, in relation to Contracting Parties that are countries of the Union established by that Convention. 17

It protects computer programs, whatever may be the mode or form of their expression, as literary works within the meaning of Article 2 of the Berne Conven

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tion. 18 Compilations of data or other materials, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, as such as protected.19 This treaty also provides the authors with the rights of distribution, rental and communication to the public which they may not have under the Berne Convention. 20 Contracting Parties are bound to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under the treaty.21

The Treaty obliges the Contracting Parties to provide legal remedies against the circumvention of technological measures (e.g., encryption) used by authors in connection with the exercise of their rights and against the removal or altering of information, such as certain data that identify works or their authors, necessary for the management (e.g. licensing, collecting and distribution of royalties) of their rights (rights management information).

It requires each Contracting Party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the Treaty. In particular, the Contracting Party must ensure that enforcement procedures are available under its law so as to permit effective action against any act of infringement of rights covered by the Treaty. Such action must include expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements.

The WIPO Copyright treaty has been implemented and enforced domesti- cally in the USA through Digital Millennium Copyright Act (DMCA) of 1998. The EU Copyright Directive (Directive 2001/29/EC), with purpose of harmonizing certain aspects of copyright and related rights, was enacted as an implementation of the WIPO Copyright Treaty. 22 This treaty was approved by the Council of Europe- an Union through Decision 2000/278/EC of 16 March 2000 on behalf of the Europe- an community. 23 The objectives of the Directive are to adopt legislation on copyright and related rights to reflect technological developments and to transpose into Community law the main international obligations arising from the two treaties on copyright and related rights adopted within the framework of the World Intellectu- al Property Organization (WIPO). 24

3.3 How does WPPT protect the music industry in digital era?

The WIPO Performance and Phonogram Treaty (WPPT) is the result of two treaties adopted by the WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions held in Geneva in December, 1996. 25 WPPT entered into force on May 20, 2002 and it supplements the Berne Convention for the Protec

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tion of Literary and Artistic Works (Berne Convention) and the International Convention for the Protection of Performers, Producers of Phonograms and Broad- casting Organizations (Rome Convention).

Like the WIPO Copyright Treaty (WCT), WPPT was adopted to address changes in digital technology and communications, particularly the distribution of digitally protected works over the Internet.26 This treaty deals with intellectual property rights of two kinds of beneficiaries. 27 Firstly, Performers (actors, singers, musicians, etc.) and secondly, Producers of phonograms (the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds).

As far as performers are concerned, the Treaty grants performers economic rights in their performances fixed in phonograms (not in audiovisual fixations, such as motion pictures): (i) the right of reproduction; (ii) the right of distribution; (iii) the right of rent and (iv) the right of making available. 28 The Treaty grants performers moral rights, the right to claim to be identified as the performer and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer’s reputation. 29

The treaty obliges the Contracting Parties to provide legal remedies against the circumvention of technological measures (e.g. encryption) used by performers or phonogram producers in connection with the exercise of their rights and against the removal or altering of information, such as the indication of certain data that identify the performer, the performance, the producer of the phonogram and the phonogram, necessary for the management (e.g. licensing, collecting and distribution of royalties) of the said rights (rights management information).30

The Treaty requires each Contracting Party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the Treaty. 31 WIPO Copyright and Performance and Phonograms Treaties Implementation Act of 1998 under the Digital Millennium Copyright Act (DMCA) in USA, is one of the example of domestic implementation of WPPT for protecting and enforcing performers and producers IP rights in national level.

3.4 Combating global piracy and counterfeit regime: Assessment on the ACTA

The Anti-Counterfeiting Trade Agreement (ACTA) is a groundbreaking initiative by global key trading partners to strengthen the international legal framework for effectively combating global proliferation of commercial-scale counterfeiting and piracy. In addition to calling for strong legal frameworks, the agreement

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also includes innovative provisions to deepen international cooperation and to promote strong intellectual property rights (IPR) enforcement practices. 32 Austra- lia, Canada, The European Union and its 27 member States, Japan, Mexico, Moroc- co, New Zealand, The Republic of Korea, Singapore, Switzerland and The USA are the main parties of this pluri-lateral agreement.

The agreement aims at establishing an international framework for combating IPR infringement on the internet and thereby creating a new governing body for protecting IP rights outside the forums like WTO, WIPO or UN. This agreement has been described as a response to "the increase in global trade of counterfeit goods and pirated copyright protected works". ACTA would, among other things, create a new inter-governmental forum responsible for administering the agreement i.e. responsible for enforcement of IPR in the international environment.

4. Resolving The Question Of Territoriality: Private International Law In Context

Private international law is a body of domestic law which deals with cases involving one or more foreign elements. In the Internet era, there is no inconsider- able degree of bathos about such a characterization, where, for example, a single copyright work can be rendered available everywhere to anyone with an Internet connection, the “foreign elements” in any dispute concerning the exploitation of the work are likely to be numerous. 33 Intellectual property has traditionally been regu- lated on a territorial basis.

However, the protection and commercial exploitation of intellectual property rights such as patents, trademarks, and copyright occurring across borders are now seldom confined to one jurisdiction. Instituting Suit for online infringement of IP protected material often involves cross-territorial issues. This raises questions as to jurisdictional competence, the applicable law and the eventual enforcement of a judgment in another country. Such questions all touch upon complex issues of private international law and procedure. 34 There are two major challenges private international law of in protecting and enforcing IP rights in the changing legal and technological perspective, namely;

• First, the jurisdictional issue: does the court have jurisdiction to decide the case? And, • Second, the choice of law issue: what law is applicable to the case?

Sometimes, a third change may arise, namely, the recognition and enforcement of foreign judgments.

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In light of the various violations against the territoriality of intellectual property law, we can draw from recent developments in private international law. In particular, in the context of the European Union, we can look to the Rome II Regulation. Under this regulation, the courts of all EU member states excluding Denmark are obliged to apply the same set of rules to determine the law governing non-contractual obligations arising between parties in civil and commercial matters.36 The Rome II Regulation, unlike the Rome I Regulation, provides a specific rule in Article 8 on infringement of intellectual property rights. This provision states that the law applicable to a non-contractual obligation arising out of an infringement of an intellectual property right shall be the law of the country for which protection is claimed.

Another important regulatory mechanism under the context of private international law is the Brussels I Regulation of European Union. 37 The regulation lays down rules governing the jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in European Union (EU) countries. 38

Article 2 of the Brussels I Regulation states that persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. It also provides that Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State. Article 4 of the regulation provides that If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State and as against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.

Article 6 states that a person domiciled in a Member State may also be sued where he is one of the defendants, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

The provisions of Brussels I regulation is obligatory upon the members of the European Union and it has successfully resolved the questions of IPR enforcement and protection beyond national border of this region.39 The Berne convention also expressly recognizes the provisions of Private International Law even within the periphery of Public International law for the protection and enforcement of IP rights.40

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5. CONCERTED LEGAL RESPONSES AT THE REGIONAL LEVEL

Regional efforts for protecting and enforcing IP rights, is still in its development stage. Due to the economic and political differences the legal efforts of one region from another varies significantly. For example, European Union has already prepared their regional legal framework for protecting Intellectual Property rights in that region while the Asia Pacific Economic Cooperation (APEC) is still discuss- ing on arriving a consensus for preparing a common regional legal framework for reducing piracy. The regional efforts for reducing IPR infringement within different jurisdictions can be assessed on the basis of their particular types of infringement and corresponding enforcement regime.

5.1 Policy initiatives taken by the European Union (EU)

Intellectual Property Rights Enforcement Directive (IPRED) is a European Union directive (Directive 2004/48/EC), adopted in 2004, and made under the EU internal market provisions of the Treaty of Rome (Treaty establishing the European Economic Community, 1958). The Directive requires all the Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy. Thus it creates a level playing field for copyright holders in the EU.41 It means that all Member States will have a similar set of measures, procedures and remedies available for right-holders to defend their intellectual property rights (be they copyright or related rights, trademarks, patents, designs, etc) if they are infringed.42 The directive covers the remedies that are available in the civil courts.

The subject-matter of the Directive is defined in Article 1. It applies to enforcement of intellectual property rights which include industrial property rights. The scope of the Directive is defined in Article 2. It applies to all infringements of IP rights in Community and national law, without precluding more stringent protection that the Community or national law may otherwise grant. The general obligation in the Directive is to provide for remedies necessary to enforce intellectual property rights. These shall be “fair and equitable” and must not be “complicated or costly, or entail unreasonable time-limits or unwarranted delays”. They must furthermore be effective, proportionate and dissuasive and must not act as barriers to trade.

Another important piece of legislation is the European Union Copyright Directive.43 This Directive aims at harmonizing the legal protection of copyright and related rights with particular focus on the information society. The Treaty provides for the establishment of an internal market and the institution of a system ensuring

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that competition in the internal market is not distorted. Harmonization of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives.44 Article 6 of the Directive provides protection for "technological measures", any technology device or component which is designed to restrict or prevent certain acts which are not authorized by the right-holder. Member States must provide "adequate legal protection", which may be civil, criminal or a mix of the two.

Technological measures are only protected if they are "effective", which means not when they actually work but when they have been successfully implemented. Member States are also bound to provide adequate legal protection against any person knowingly performing, without authority, the removal or alteration of any electronic rights-management information.45

A new directive (known as “directive on criminal measures aimed at ensuring the enforcement of intellectual property rights” has been proposed in 2005. Being the second directive on the enforcement of intellectual property rights, it is commonly called IPRED2 (Second Intellectual Property Rights Enforcement Direc- tive).46

5.2 The Asia Pacific Economic Cooperation (APEC) in action

The APEC Anti-Counterfeiting and Piracy Initiative is part of efforts intend- ed to strengthen intellectual property protection and overcome damage caused to regional innovation and commercial competitiveness. It is one of the guidelines prepared and endorsed in 2005 with a view to tackle counterfeiting and piracy and increasing economic productivity within the economic periphery of APEC member countries.47 The APEC Anti-Counterfeiting and Piracy Initiative reflects an effort to strengthen IP protection and confront the comparative disadvantage experienced regionally when it comes to innovation capacity and commercial competitiveness.48 This initiative includes a range of actions that are to be undertaken by the APEC member countries. It includes four areas in which specific measures are outlined.49

(1) Reduce Trade in Counterfeit and Pirated Goods - Economies aim to reduce counterfeit and pirated goods trade and combat transnational networks that produce and distribute these items. Actions include establishing guidelines for authorities to inspect, suspend, seize and destroy goods and equipment used in counterfeit and pirated goods trade. (2) Reduce Online Piracy - Appropriate legal regimes and enforcement systems will be enacted to curtail online piracy and to undermine the online trade in counterfeit goods. This includes the development of guidelines to prevent Inter- net sales of counterfeit goods. 51 Page Green University Review of Social Sciences, Volume 02, Issue 01, June-2015

(3) Increase Cooperation to Stop Piracy and Counterfeiting - Operational contact and the sharing of information between customs and law enforcement agencies will be increased to combat counterfeiting and piracy networks. (4) Increase Capacity Building to Strengthen Anti-Counterfeit and Piracy Enforce- ment - Member Economies' ability to develop and manage effective anti-counterfeiting and piracy enforcement systems will be increased through education and training throughout the region.

5.3 Assessing the effectiveness of the Association of South East Asian Nations (ASEAN) in protecting IPR

The ASEAN Framework Agreement on Intellectual Property Cooperation is a regional multilateral treaty formulated in 1995 with a view to recognize the important role of intellectual property rights in the conduct of trade and the flow of investment among the Member States of ASEAN and the importance of cooperation in intellectual property in the region. This treaty also recognizes the need to promote closer cooperation and understanding among the countries in the region in the field of intellectual property and related fields to contribute to regional dynamism, synergy and growth.50 It expressly asserts the necessity of cooperation among state members for effective administration and enforcement of intellectual property rights, cross-border measures and IPR enforcement authorities.51 This treaty has not yet come into force.

Over the past several years, ASEAN has been working towards the development of the IP system in the region through the ASEAN Working Group on Intel- lectual Property Cooperation (AWGIPC). 52

The IPR Action Plan (2011-2015) has been formulated by AWGIPC to help accelerate the pace and scope of IP asset creation, commercialization and protection; to improve the regional framework of policies and institutions relating to IP and IPRs, including the development and harmonization of enabling IPR registration systems; to promote IP cooperation and dialogues within the region as well with the region’s Dialogue Partners and organizations; to strengthen IP-related human and institutional capabilities in the region, including fostering greater public awareness of issues and implications, relating to IP and IPRs”.

It is designed to meet the goals of the ASEAN Economic Community (AEC) by transforming ASEAN into an innovative and competitive region through the use of IP for their nationals and ensuring that the region remains an active player in the international IP community.53 This action plan identifies five specific strategic goals that would contribute to the collective transformation of ASEAN into a competitive region with the use of Intellectual Property.54 52 Page Evolving Jurisprudence to Combat Digital Challenges to Intellectual Property Rights Protection

6. CONTRAST IN THE IPR ENFORCEMENT REGIME: DEVELOPED STATES VIS-A-VIS DEVELOPING COUNTRIES

Appropriate protection and enforcement of IPRs is a common legal culture in almost every developed country like USA, UK and France. This is because a major proportion of their national economy depends upon industrial technology which is derived from the domain of intellectual property. On the other hand, frequent infringement of IP rights is a common trend in every developing country and they have very weak legal mechanism for combating IPR infringement along with reluctance of government authority to enforce the existing legal provisions. Developing countries, in most of the cases, have proved to curb the major threats towards the protection and enforcement of IP rights within their national boundary as their particular legal and administrative mechanism are weaker than the developed countries.

Nevertheless, protection and enforcement of IP rights has also become a critical issue for the developing and emerging economies with the changing global landscape focusing in the dynamic market economy in the past quarter century. Country specific legal responses to prevent IPR infringement can be better under- stood from their varying technological, socio-economic as well as political realities.

6.1 Digital Millennium Copyright Act (DMCA) of the USA

The Digital Millennium Copyright Act (DMCA) of 1998 endeavors to balance the interests of internet service providers and copyright owners when copyright infringement occurs in the digital world. The DMCA protects internet service providers from liability for copyright infringement by their users, if the internet service provider meets certain statutory requirements. To be within the ambit of DMCA, an internet service provider must, among other things, take certain steps when it receives notice that infringing material resides on its network; adopt and implement a policy that provides for termination in appropriate circumstances of users who are repeating infringenerds; and accommodate standard technical measures that are used by copyright owners to identify and protect copyrighted works.

The DMCA protects only the internet service provider, and not the users of its system who infringe copyright.55 This act combines two important treaty of WIPO, namely: The WIPO Copyright Treaty (WCT) and The WIPO Performance and Phonogram Treaty (WPPT) for the protection and enforcement of copyright in domestic environment. The Digital Millennium Copyright Act (DMCA) has been criticized from many aspects, including its impact on the fair use defense to copy

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right infringement, and it’s potential to chill the free exchange of scientific, technical, and educational information.56

6.2 Digital Economy Act of the United Kingdom

The Digital Economy Act (DEA) of 2010 implements aspects of Government policy on digital media set out in the ‘Digital Britain’ White Paper published in June 2009.57 It regulates digital media and online infringement of copyright. The provisions of this Act aim to increase the ease of tracking down and suing persistent infringers, and after a minimum of one year permit the introduction of "technical measures" to reduce the quality of, or potentially terminate, those infringers' Inter- net connections. This act also creates a new ex-judicial process to manage appeals.58 Section 3 to 16 of this Act has ignited controversy which aims at the reduction of online infringement of copyright through imposing obligation on the shoulders of Internet Service Providers.59

6.3 DADVSI and HADOPI Law of France

DADVSI which is also known as ‘Law on authors' rights and related rights in the information society’, is a bill reforming French copyright law with a view to implement the European directive on Copyright (EUCD, 2001) and consequently implementing the obligations of the WIPO Copyright Treaty of 1996. The bill proved to be very controversial as it touched sensitive issues such as the exceptions to copyright, especially the scope of private copying and the statutory introduction of the three step test, the definition and sanctions against digital piracy and the status of technological protection measures for copyrighted content (also known as Digital-Rights Management or DRMs).60 Most of the bill focused on the exchange of copyrighted works over peer-to-peer networks and the criminalizing of the circumvention of digital rights management (DRM) protection measures. Dadvsi struggled through the legislative process, largely because reconciling intellectual property holder's rights with consumer rights proved difficult. 61

The French HADOPI law or the ‘Law promoting the distribution and protection of creative works on the internet’ (Otherwise known as Creation and Internet law) was introduced as a part of graduated response to encourage compliance with copyright laws. It took into the forms of initiative to encourage the development of legal distribution and to monitor the legal and illegal use of works and items to which a copyright or a related right is attached on electronic communications networks.62 On receipt of a complaint from a copyright holder or representative, HADOPI might initiate a 'three-strike' procedure. This law is no longer in action in France. Due to the heavy punitive measures against individual online

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copyright infringers, it was ultimately revoked by the French government in July, 2013. French anti-piracy will now their focus – instead of handing heavy punish- ments to individual users, the government is looking towards penalizing "commercial piracy" and "sites that profit from pirated material.63

6.4 How Brazil has been struggling in combating infringement regime?

IPR infringements in Brazil are widespread and affect different types of IP rights. Pirated optical disks (music CDs, film DVDs and software) represent a large proportion of the market for the sector.64 Major changes in Brazilian policy regarding the Internet, intellectual property, privacy, education, and law enforcement hinges on the stakeholder politics and evidentiary practices underlying these two narratives: Brazil, the pirate nation, and Brazil, winning the fight against piracy. Under Brazilian law, all infringement is subject to criminal prosecution. Two laws are paramount here: Article 12 of the Software Law and Article 184 of the Penal Code (which applies to all copyrightable works other than software. Infringement can be pursued as either a criminal or civil matter, but in practice industry IPR holders place most of the burden on criminal law.65

Search and seizure of infringing products can be carried out in civil and criminal proceedings where the court issues such a warrant. This can be done even before the infringer is aware of the court action.66 The general rule in Brazil is that crimes are publicly prosecuted; Brazilian criminal law also has provisions for private prosecution before a criminal court. In the copyright field, this applies in cases of software infringement and non-commercial infringement, which must be privately prosecuted. The application of copyright law to online intermediaries and their users, consequently, remains unsettled in Brazil.

6.5 Mexican protection regime in a nutshell

Mexico has been under significant US pressure to shift policing resources toward anti-piracy efforts.67 The Mexican government has accommodated these requests in several important respects, including the granting of ex officio authority to the police to allow them to act against suspected pirates without a prior complaint from rights holders. Criminal penalties have also been scaled up, with new law specifying up to ten years in prison for anyone involved in the production or wholesale of pirated goods. (Retail sales on the street are subject to a lower penal- ty of five years.) Other measures remain under discussion, including the loosening of evidentiary requirements for search and seizure, the expansion of agencies that work directly with rights-holder organizations, and the use of the racketeering

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statute in piracy cases (which carries a sentence of from twenty to forty years for “organized” criminal activity, defined as involving three or more people). 68

6.6 Assessment of the Policy Regime of Bangladesh in Combating Online IPR Infringement

Over the last four decades, Bangladesh has enhanced her per capita income four-folds, reduced per head poverty by more than half, and is well placed to attain most of the millennium development goals.69 Intellectual Property Laws (IPL) and its implications are little known to the specialized professionals, business and industrial executives and management groups in Bangladesh.70With the rise of digital technology, existing legal regime covers the issues relating to copyright, patent, designs and trademarks.

Although there is absence of specific provisions relating to online infringement or digital technology, existing legal mechanism enshrined in the Bangladesh Penal Code, The copyright Act of 2000, the trademark Act of 2010 and The Patent and Designs Act of 1911 can be construed so as to defend IPRs infringement in online and digital environment for time being. A good number of provisions of ICT Act of 2006 also entertain the provisions relating to punishment for specific offences done in online environment.71

Bangladesh is a signatory state to Berne Convention, Paris Convention and TRIPS agreement.72 In a recent decision, it has been held that Well-known international trademarks can be protected in Bangladesh even when they are not registered in Bangladesh in compliance with “National Treatment” principle as envisaged in Article 2 & 3 of Paris Convention and Article 3.1 of the TRIPS Agreement.

Bangladesh is also considering ratifying the Patent Cooperation Treaty (PCT). Although local experts have warned that it should not endorse the PCT without detailed study of its impact on pharmaceutical and other knowledge-based industries.73 The overall legal responses are sporadic and lacks in uniformity when it comes to the IPR enforcement in the changing dynamism of technological development and progress. This challenge can be resolved through appropriate synchro- nization and cooperation between local laws and international legal regime prepared for combating IPR infringement in broader spectrum of internet and digital technology.

7. LIMITATIONS OF LEGAL RESPONSES: IPRS AT THE CROSSROADS

Protection and enforcement of Intellectual Property Rights is a major issue in

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current global perspective. The legal responses concerning IPRs protection and enforcement has not yet developed robustly for protecting the interests of rights holders. In certain cases, these limitations hinder the basic objective of protecting and enforcing IP rights in both national and international levels.

Firstly, a pure uniform global Intellectual Property law regime is absent which can be applied for IPR protection and enforcement in case of trans-border infringement. This issue has worsened the situation into a critical level as the absence of common universal mechanism encourages the infringers to infringe IP rights through internet which has actually no boundary at all. Nevertheless, it’s quite baffling when we refer to something as like uniform global IP law regime as the legal dynamics varies from one context from another.

Secondly, because of the differences in domestic laws between various countries, an act of infringement which is illegal in one country may not be considered illegal in another country. And application of principle of territoriality in Intel- lectual property is significantly a stumbling block towards building a common legal platform for combating IPR infringement. Jurisdictional challenge for adjudicating IPR infringement is another significant limitation of present Intellectual Property Law regime. Divergence in legal standards represents this challenge at both national and global level. Border Measures under TRIPS can be construed strictly so as to resolve this issue.

Thirdly, Regional legal efforts for combating IP related crimes is still in the discussion table and they have not yet proved their success in combating IPRs infringement except the European Union who have successfully merged their regional IPRs enforcement directives into the national law of the member countries. Fourthly, there is absence of harmonization of policy initiatives between developed and developing countries. Developed countries tends to protect their IP rights within strict legal framework, while developing countries plans to walk slowly towards implementing legal initiatives for curbing the problem and they are comparatively reluctant to adopt more stringent legal mechanism for combating IPR infringement in their domestic level.

8. CONCLUSION

Intellectual Property Rights are having multimodal dimension and faced with harsh market realities existing between the North and the South. The lack of persistent dimension and changing technological reality was made the issue of protection and enforcement of IPRs quite challenging in certain respects. Even though IPRs has been a debatable issue for protection and enforcement due to economic reasons and for provid

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ing financial incentive to the IPR holder for his creative works and ideas, the very first legislation on IPRs expressly recognized the importance of dissemination of information for public interest. The conflict of commercial exploitation of IPR and public access to IPRs has led to the interest division between developed and developing nations in the 21st century’s market economy.

Developing and LDE’S are constantly thriving to improve their enforcement regime in the changing technological perspective on one hand and on the other hand, developed countries are struggling to accommodate new technological changes and, thus, seeking newer and more sophisticated solutions to solve IPR infringements. Tech- nological changes have been considered as the changing factor behind the IPRs. This evolution has found a very important conjuncture with the digital technology. The new global computer network has created new challenges for IPR holders, who observed that their works are distributed and copied throughout this immeasurable net of systems. Piracy and copying of protected works have always existed from the very early, but never in the scale that the modern Internet and digital media offers. Many solutions have been offered to stop the infringement.

Improving the existing legislation is a rational way to attempt to stop infringement, but the international nature of the Internet makes enforcement very difficult to achieve. Faced with this difficult scenario, pessimists are prophesying for the end of IPRs as we know it. But it does not seem reasonable and rational to propose the abolish- ment of IPRs neither it’s desirable to put an end to the incentives provided to the creators of creative and literary works which shall, if done, in turn eliminate further advancement. Intellectual Property owners have the exclusive right to receive compensation for their work and investment in the form of a limited right. However, if the existing situation is not favorable for them, then some new avenues have to be opened up.

The best option for the future would be to look for new measures, although the implementation of improvised technological and legal mechanism may appear to be doubtful given the fact that information in cyberspace has a tendency to replicate endlessly. Moreover, the competing authority’s powers to address the challenges are needed to be dismantled evenly with great care so as to ensure the appropriate fragmentation of institutionalized enforcement of IPRs. Hence, it’s the high time to open up the debate for the future as to the effectiveness of the protections afforded to IPR regime in the digital environment at global, regional and national levels in the brink of dynamic legal realism as well as the fast moving global political orders.

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Endnotes:

1. Barry M. Leiner, Vinton G. Cerf, David D. Clark, Robert E. Kahn, Leonard Klein- rock, Daniel C. Lynch, Jon Postel, Larry G. Roberts, Stephen Wolff, Brief History of the Internet, 2012, p. 03. 2. Grassmuck, Ralf Volker, Academic Studies on the Effect of File-Sharing on the Recorded Music Industry: A Literature Review (2010), p. 02. 3. Lucchi , Nicola, Intellectual Property Rights in Digital Media:A Comparative Analysis of Legal Protection, Technological Measures, and New Business Models under EU and U.S. Law (2007) , p. 03. 4. Institutional fragmentation refers to the fragmentation of authority between the central government and alternative bodies. 5. Prost, Mario, ‘The Concept of Unity in Public International Law’, Hart Publish- ing, 2012, p. 209. 6. Franklin, Jonathan (2013), International Intellectual Property Law, American Society of International Law, p. 04. 7. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), The WIPO Copyright Treaty (WCT), The WIPO Performance and Phonogram Treaty (WPPT), The Anti-Counterfeiting Trade Agreement (ACTA) 8. Dinwoodie, Graeme B., ‘The International Intellectual Property Law System: New Actors, New Institutions, New Sources’, Marquette Intellectual Property Law Review, Vol. 10, No. 02, p. 206 9. Zuo, Anlei, The Institutional Fragmentation of International Intellectual Proper- ty Law in Pacific Rim. 10. Preamble, The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). 11. Watal, Jayashree (2003), Intellectual Property Rights in the WTO and Developing Countries, Oxford University Press, p. 293. 12. Article 41-61, The Agreement on Trade Related Aspects of Intellectual Property Rights. 13. Copyright enforcement under the TRIPs Agreement, International Intellectual Property Alliance (2004), p. 01. 14. Adede, A.O, 2003. “Origins and History of the TRIPS Negotiations”, In “Trading in Knowledge: Development Perspectives on TRIPS, Trade and Sustainability” edited by C. Bellmann, G. Dutfield, R. Melendez-Ortiz, London: Earthscan Publi- cations, p. 23. 15. Dutfield, Graham, Literature survey on intellectual property rights and sustainable human development (2000).

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16. Doane, Michael. "TRIPS and International Intellectual Property Protection in an Age of Advancing Technology." American University International Law Review 9, no. 2, p. 485. 17. Summary of the WIPO Copyright Treaty (1996), available online at http://ww- w.wipo.int/treaties/en/ip/wct/summary_wct.html, last visited March 18, 2015. 18. http://www.techopedia.com/definition/26952/wipo-copyright-treaty-wct, last visited March 18, 2015. 19. Article 1(1), WIPO Copyright Treaty, 1996. 20. Article 4, ibid. 21. Article 5, ibid. 22. Article 6-8, ibid. 23. Article 11, ibid. 24. Article 12, ibid. 25. Mccarthy, Smári, The European Copyright Directive and Combinatorial Explo- sion, Web Journal of Current Legal Issues, Vol. 19, No. 2, May. 2013. 26. http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32000D0278, last visited March 20, 2015. 27. http://ec.europa.eu/internal_market/copyright/copyright-infso/index_en.htm, last visited March 20, 2015. 28. WIPO Intellectual Property Handbook: Policy, law and use, 2004, 2nd Edition, Geneva, p. 325. 29. http://www.techopedia.com/definition/28161/wipo-performances-and-phonograms-treaty-wppt, last visited March 22, 2015. 30. Azam, Mohammad Monirul (2008), Intellectual Property: WTO and Bangladesh, New Warsi Book Corporation, 1st Edition, p. 136. 31. http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html, last visited March 22, 2015. 32. Art.5, WIPO Performances and Phonograms Treaty, 1996. 33. http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html, last visited March 22, 2015. 34. Art. 23, WIPO Performances and Phonograms Treaty, 1996. 35. Office of The United States Trade Representative, https://ustr.gov/acta, last visited March 23, 2015. 36. Prospective on policy responses to online copyright infringement: an evolving policy landscape (2011), Internet Society, p. 03. 37. Austin, Graeme (2001), Private international law and intellectual property rights a common law overview, WIPO Forum on Private International Law and Intel- lectual Property Rights, WIPO/PIL/01/5, p. 02. 38. Cheshire, North & Fawcett (2008), Private International Law, Oxford University Press, 14th edition.

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39. Regulation (EC) no 864/2007 of the European Parliament and of the council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). 40. Article 1(1), The Rome II Regulations. 41. Council Regulation (EC) No 44/2001 of 22 December 2000. 42. http://europa.eu/legislation_summaries/justice_freedom_securi- ty/judicial_cooperation_in_civil_matters/l33054_en.htm, last visited March 27, 2015. 43. “Exclusive jurisdiction and cross border intellectual property (patent) infringement suggestions for amendment of the Brussels I Regulation” (2006), European Max-Planck Group for Conflict of Laws in Intellectual Property, available online at www.cl-ip.eu/files/pdf2/clip_brussels_i_dec_06_final4.pdf, last visited March 27, 2015. 44. Article 5(2), Berne Convention for the Protection of Literary and Artistic Works, 1886. 45. Article 3(1), Directive 2004/48/EC of the European Parliament and of the Coun- cil on the enforcement of intellectual property rights. 46. http://ec.europa.eu/internal_market/iprenforcement/directive/index_en.htm. 47. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society. 48. Preamble, ibid. 49. Art. 7, ibid. 50. As announced in Official Journal C 252 of 18 September 2010 the European Com- mission decided to withdraw the proposal for a directive. 51. http://www.apec.org/Press/News-Releases/2005/0603_ipr.aspx, last visited March 29, 2015. 52. Taylor, Michael D, (2010), “The global system of Copyright Enforcement: Regu- lations, Policies and Politics”, Copyright enforcement and Internet, Edited by Irini A. Stamatoudi, Kluwer Law International, p.95. 53. Ibid, p. 95-96. 54. Preamble, ASEAN Framework Agreement on Intellectual Property Coopera- tion, 1995. 55. Article 3, ibid. 56. ASEAN Intellectual Property Rights Action Plan, p. 01. 57. Ibid, p. 02. 58. http://www.ecap-project.org/resources/asean-ipr-action-plan-2011-2015, last visited March 31, 2015. 59. http://dmca.harvard.edu/pages/overview, last visited March 31, 2015. 60. Lipton, Jacqueline (2005), The Law of Unintended Consequences: The Digital

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Millennium Copyright Act and Interoperability, vol. 62, issue. 02, Wash. & Lee Law Review, p. 487. 61. http://services.parliament.uk/bills/2009-10/digitaleconomyhl.html. 62. Denoncourt, Janice (2012), Intellectual Property Law, Routledge, UK, p.79 . 63. Ibid, p.80. 64. Jondet, Nicolas, La France v. Apple: Who's the Dadvsi in DRMs? (December 15, 2006). SCRIPT-ed, Vol. 3, No. 4, p. 473, December 2006. Available at SSRN: http://ssrn.com/abstract=950425, last visited November 19, 2015 . 65. Sobel, Deana (2007), A Bite out of Apple- iTunes, Interoperability, and France’s Dadvsi law, vol. 22, issue. 01, Berkeley Technology Law Journal, p. 272. 66. http://www.hadopi.fr/en, last visited November 19, 2015. 67. http://www.theguardian.com/technology/2013/jul/09/france-hadopi-law-anti-piracy, last visited April 02, 2015. 68. Brazil: IPR Enforcement Survey (2006), available online trade.ec.europa.eu/do- clib/html/130390.htm, last visited April 03, 2015. 69. Media piracy in emerging economies (2011), edited by Joe Karaganis, Social Science Research Council, p. 223, available online http://piracy.ssrc.org last visited April 02, 2015. 70. Guide to protection of Intellectual Property Rights in Brazil (2014), p.08. 71. Supra note 63, p. 305. 72. Ibid, p. 316. 73. Khondker, Bazlul H and Nowshin, Sonia (2013), Developing national intellectual property policy for Bangladesh: an assessment of national intellectual property system, WIPO and University of Dhaka, p. 02. 74. Supra note 24, p. 183. 75. Section 54-67, Information and Communication Technology Act, 2006. 76. Sunil Kumar Das Vs. Canon Kabushiki Kaisha & another, 57 DLR, pp. 93-100. 77. http://www.iatp.org/news/experts-say-no-to-signing-patent-treaty-without-study.

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