Enforcement, Enforcement, What Enforcement?
47 Pages Posted: 24 Oct 2011 Last revised: 14 Feb 2013
Date Written: April 14, 2011
The protection and enforcement of intellectual property rights has been a very hot topic in the past few years. From the introduction of the PROTECT IP Act of 2011 to the adoption of the Anti-Counterfeiting Trade Agreement (ACTA) to a recent U.S.-China dispute before the WTO, the topic has dominated policy debates at both the domestic and international levels. While most policymakers, industry representatives, and commentators have recognized the critical importance of intellectual property enforcement, there has been neither philosophical nor normative consensus on the appropriate norms in this area. Like three blind men trying to describe an elephant, different people have different conceptions of what enforcement comprises, which enforcement standards governments should implement, and how much these implementation efforts should cost.
Delivered as the Inaugural Franklin Pierce Center for Intellectual Property Distinguished Speaker in Intellectual Property Lecture, this Article outlines three different types of common enforcement challenges: crossborder enforcement, digital enforcement, and transborder enforcement. It then examines one recent effort to address these challenges: the development of ACTA. It explores why this highly controversial agreement is unlikely to provide stronger global enforcement of intellectual property rights. In view of the many flaws inherent in ACTA, this Article suggests four guiding principles that can be used to develop a better and more effective intellectual property enforcement treaty. It concludes with four alternative enforcement strategies that policymakers can use to supplement or substitute for the treaty-based approach.
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