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A Model of Intellectual Property Rights Enforcement forDeveloping Countries
Invited Researcher: Jumpol Pinyosinwat

As intellectual property rights have encountered an expansive growth throughout the world,
the debate on the differences of substantive intellectual property laws in developed anddeveloping countries have regained enormous attention for decades. Nonetheless, the discussion
about the dissimilarity of practices, especially for the enforcement approaches in developed anddeveloping countries, seems to be overlooked.
This paper aims at considering and comparing the diverse approaches of intellectual property
enforcement outlined above. It starts with a compressed treatment of the conceptual justificationin the frame of John Locke’s labor theory and the interpretations of Hegal’s and Marx’s theory ofproperty. The historical perspectives of abstract objects in intellectual property law in the UnitedStates and the United Kingdom are additionally analyzed.
The paper then explores and compares the approaches of intellectual property enforcement in
3 developed countries (Japan, the United Kingdom, and the United States of America) and 4
developing countries (China, Taiwan, Thailand, and Vietnam). Focusing on practical perspective,
it discusses certain procedural issues, including current law, civil remedies, criminal remedies,other remedies, court, and statistics.
Based on the comparing analysis, the paper finds that most developed countries mainly apply
and develop civil remedies to protect intellectual property rights, while a number of developing
countries rarely apply such remedies. In some developing countries, criminal sanction is the only
option to enforce intellectual property right; civil remedies and justification of intellectual
property have been abandoned. The paper proposes a model with a minimalist solution toenforcing practices, which is based on the justification of intellectual property right and the needto harmonize the differences of practices.

I

consequences of which on both the economy
and on common welfare are regarded
increasingly as rather negative. Conversely,theintellectualproperty
enforcement
agencies in some developing countries have
not only ever wondered, but applied typicallycriminal prosecution to enforce intellectualproperty rights.
Thailand might be an example: the Thai
Department of Intellectual Property and theThai Police have kept promoting the criminal
enforcement of intellectual property since
1990s. Campaigns to enforce criminal
proceeding by the Department of Intellectual
Property and police raids have been
performed throughout the country for severalyears. The caseloads in the Central

Introduction

While intellectual property rights haveencountered an expansive growth throughout
the world, the debate on the differences ofsubstantive intellectual property laws indeveloped and developing countries haveregained enormous attention for decades.
Numbers of intellectual property scholars indeveloped countries are questioning whether
the framework or justification of intellectual
property protection is suitable for theknowledge society, or the problem of proper
scope for enforcing intellectual property right,through civil litigation. Indeed, more andmore voices are debating against a law that is
considered to be “overprotective” and the(*) Presiding Judge, the Central Intellectual Property and International Trade Court, Bangkok, Thailand

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such remedies. In some developing countries,
criminal sanction is the only alternative toenforce intellectual property right; civil
remedies and justification of intellectual
property have been totally abandoned. The
paper proposes a model with a minimalist
solution to enforcing practices, which isbased on the justification of intellectual
property right and the need to harmonize thedifferences of practices.

Intellectual Property and International
Trade Court in Bangkok may evident suchcampaigns and practices. In 2005, there are
35 new civil copyright cases filed, but 2,943
newcriminal
copyright
casesfiled.
Particularly, 98.82% of all copyright cases in
the court in 2005 are criminal cases.
According to these facts, we meet abizarre contradiction. Intellectual property
rights, which are designed to stimulate
intellectual activity and to provide incentives
for creativity as well as to be protected
through civil remedies are increasingly
becoming criminal penalties in somedeveloping countries. This research aims at
considering and comparing the diverse
approachesofintellectual
property
enforcement in developed and developing
countries. It starts with a compressed
treatment of the conceptual justification in
the frame of John Locke’s labor theory andthe interpretations of Hegel’s and Marx’s
theoriesofproperty.
The
historicalperspectives of copyright in intellectualproperty movement in the United States andthe United Kingdom are additionallyanalyzed.
The research then explores andcompares the approaches of intellectual
property enforcement in three developed
countries (Japan, the United Kingdom, andthe United States of America) and fourdeveloping
countries(China,Taiwan,Thailand, and Vietnam). Focusing onpractical perspective in each country, it
discusses certain procedural issues, including
current law, civil remedies, criminal
remedies, other remedies, court, andstatistics. The research then compares thedifferences of enforcing practices andproposes a model with a minimalist solution
to developing countries, which is based on thejustification of intellectual property right andthe need to harmonize the differences ofpractices.
Based on the comparing analysis, thepaper finds that most developed countries
mainly apply and develop civil remedies toprotect intellectual property rights, while anumber of developing countries rarely apply

IIofIntellectualUnlike property which ties the rightholder with “thing” or “object,” thejustification of intellectual property posits
these intangible rights to “abstract object.”
This intangible feature generates theambiguousandconfusing
naturetointellectual property rights. Although theoriginal works related to property from Locke,
Hegel, and Marx do not focus on rights ofabstract property, such standpoints help us toclarify the justification of intellectual
property rights.
In particular, the justifications ofintellectual property rights through Locke,
Hegel, and Marx’s perspectives share one
similar idea of limiting the scope of thisabstract object’s right. Intellectual property
rights in these perspectives are more likely inthe form of privilege which bears certain
duties. In the labor theory, Locke makes clear
the idea of “positive community” whichpeople can properly utilize the resources of
the community and “negative community”
which the commons is open to ownership byall. The proper exploitation of intellectual
property rights have to be within the certainlimits.
Viewing property as a fundamental
mechanism of survival for individuals, Hegel
concerns both the origins of property and its
evolutionary chance within the context of asocial system. For Hegel, the recognition of
intellectual products by others as well as thetransmission of knowledge or well-establish
thoughts is benefit for the society. The2IIP Bulletin 2007

Justifications
Property Rights

regulation was replaced with the statutory
rights. The enacted copyright statute, theStatute of Anne, was modeled on thestationer’s right, but with two main different
features for removal the monopoly: thelimited members of the stationers and theperpetual existence. The copyright therefore
was swift from an instrument of monopoly as
thestationer’s
copyright
tobea
trade-regulation device under the statutorylaw.
The notion of monopoly moved to positwith the right of author within limit period in
the provision of the Statute of Anne, theConstitution of the United States, andseveral major case laws. The limit monopoly
for the author seems justified to reward hislabor and encourage new creative activity.
But again, the monopoly has gradually
moved from the right of author to thepublisher, on behalf of the author’s. The
copyright therefore is used to protect theeconomy interest of the publisher or investor
and against his competitors. This important
replacement cuts the limit monopoly from thelink of the need of creative encouragement
and promoting of science and useful arts.
The reasoning in Millar v. Taylor,Donaldson v. Beckett and Wheaton v. Peters
show clear explanation between theconclusions based on individual’s interest
and public’s interest. These different
foundations brought to the different
conclusions as to how to resolve the conflict ofinterests. The holding in Millar supports theindividual’s interest and grants perpetual
protection to a bookseller, while the majorityinDonaldson
and Wheaton sustains
public’s interest and provides only limit
monopoly to authors and publishers, under
the conditions prescribed by laws.
From the discussion in Chapter II, theresearch shows that the justifications ofintellectual property right by Locke, Hegel,and Marx share the need to preserve common
or public interest owing to the justificationand nature of intellectual property rights,
while the historical perspectives in Englandand the United States explain the need tolimit the monopoly power of the right holders.

further concern is intellectual property right,
through its nature and form, has thepotential to endanger community in variousways.
For Marx, his concentration with themateriality of production perhaps leads him
to ignore the importance of the abstract
object to capitalism’s processes of commodity
accumulation. However, his analysis of thecommodity nature of capitalism, theunderstandingofindividual
capitalist
behavior, and the contributing to growth of
economic capitalism does explain thejustification and the need of intellectual
property right within capitalism. In addition,
concern of real dangers in allowing theintellectual commons to be propertied is alsorelevant.
Unlike property, intellectual property
does not have relation between the holder ofthe right and the thing (or object). Instead,
intellectual property rights relate to“abstract object.” Such rights may be easily
and endlessly expanded if we do not define aproper scope and provide a decent
justification. The grant of these monopoly
rights accordingly should be tied to theproper limit and duty.
Additionally, the need of decent balanceis later emphasized in most international
convention related to intellectual property
right.
Article 27 of the Universal
Declaration of Human Rights stresses thatevery country may maintain the delicate
balance between the limited monopoly andthe public interest to enjoy the arts and sharein the scientific progress. Likewise, thebalance conception is highlighted in thePreamble and content in most WIPO treaties
and TRIPS Agreement.
From the historical perspective, English
copyright began in the sixteenth century as adevice for maintaining rules among membersof the book trade organized as the Stationers’
Company. Aided by preceding laws andregulations of press control and censorship,
the rights were developed and gradually
misused to be the basis of a monopoly in thebook trade. With the end of censorship andgovernment support, this book trade
3IIP Bulletin 2007

property right enforcement in sevencountries.Three are selected from thedevelopedcountries—Japan,
UnitedKingdom, and United States, comparing tofour developing countries—China, Taiwan,
Thailand, and Vietnam. Specific concerns
includes eight main issues, (i) historicalbackground, (ii) current law, (iii) civil
remedies, (iv) criminal remedies, (v) otherremedies, (vi) court, (vii) statistics, and (viii)
perspective.

Besides these needs, intellectual property
protection under the international scheme
has always called for the harmonization ofnational laws and the need for public toaccess to science, technology, and culture.
The context in all WIPO treaties as well as
the TRIPS Agreement joins the same premiseof harmonizing national legislatures for theintellectual property protection. In particular,such protection reasonably enforces throughcivil remedies and maintains decent balance
between the civil rights of right holder andthe larger public interest. Member of suchinternational convention is abided byinternational obligation to provide adequate
and effective civil protection and remedies forthe intellectual property right holders toenforce their civil right efficiently.
Recently, the rapid development andvalue of intellectual property rights in mostdeveloped countries has stimulated business
investors, not the creators themselves, toexpand the limit of monopoly. It turn evenfurther in the practices in some developing
countries, the business investors mainly
enforce intellectual property rights throughcriminal
prosecution
andcriminal
punishment. Within the monopolistic frame,in other words, monopolist criminalizes
people who are monopolized but refuse to bemonopolized.

IV Considerations
Country ModelDeveloping

Based on the comparing analysis in
Chapter II and III, the enforcing practices
and intellectual property law in mostdeveloped countries go along with the need topreserve common interest and the need tomaintain a decent balance of interests as wellas international obligation. Japan, theUnited Kingdom, and the United States aregood examples.
Nonetheless, practices and laws in mostdeveloping countries are much morequestionable. The need to maintain a decent
balance of interests seems to be substituted
by loads of criminal penalties. The
comparison of criminal prosecution in
intellectual property cases in developed anddevelopingcountries
shows
severecontradiction of enforcing practices. The
following Table I and Chart I show the ratioor percentage of criminal intellectual
property cases, compare to all intellectual
property caseload in six countries (due to thestatistics
available,
ChartI
applies
information in year 2003 and 2004 forVietnam, and year 2004 and 2005 for therest). From the number of criminal caseloads
in Chart I, most developed countries haveapplied a very low percentage of criminal
prosecution, while the ratio of criminal
prosecution in most developing countries isvery high. The similar differences of ratio
happen similarly in both years. In the year
2004; for example, the United Statesprosecuted
only
1.33%ofcriminal

III Model of Intellectual Property
Right Protection in Developed andDeveloping Countries
Chapter III examines and compares theapproaches of intellectual property rightprotection
inspecificdevelopedand
developing countries as well as theframework of major international agreement
relating to intellectual property right. To set
the frame of international obligations andharmonization, the research begins byexamining some key concept in three types ofinternational
instruments—Universal
Declaration of Human Rights, WIPO Treaties,
and the TRIPS Agreement. The research
further considers the practices of intellectual
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for

From what we have discussed in the lastchapter about the practices of intellectual
property enforcement, it shows that mostdevelopingcountries
havedeveloped
misunderstanding foundations and left theproper justification of “intellectual propertyright,” “monopoly,” and “harmonization”
behind. Accordingly, it is important to stressthat it is obligatory for both developed anddeveloping countries to frame a decent
protecting system of intellectual property
right in their legislature and enforcementprocesses. Particularly, legislation andenforcement organizations in developing
countries need to realize the necessity of thebalance of interest and integrate suchbalance into every part of legislation andprotection processes.
Based on the comparing analysis, theresearch proposes a model with a minimalist
solution to enforcing practices, which isbased on the justification of intellectual
property right and the need to harmonize thedifferences of practices.

intellectual property cases, while Japan has
23.06% of criminal prosecutions. On the otherhand, most developing countries apply very
high ratio of criminal prosecutions; Taiwan
has 60.61% of criminal prosecution while
Vietnam prosecution is 77.42%. The
exceptional high ratio of criminal prosecution
is Thailand which went up to 96.19%. Only
3% left for all civil litigation related tointellectual property matters.
Table I: Number of Criminal IP Cases in Six
Countries
Year 2004

Year 2005

CriminalRatio

CriminalRatio

Cases

(%)

Cases

(%)

(number)(number)

U.S.

129

1.33

169

1.37

China

2,753

17.78

3,567

17.21

Japan

196

23.06

30234.28

Taiwan

2,333

60.61

1,555

56.10

Vietnam52

86.67

2477.42

Thailand(Year(Year2003)

2004)

5,354

96.19

15,565

Justification of Intellectual Property
Right
As discussed in the previous chapters,
intellectual property right has its own
distinctive
characteristicandnature.
Countries, especially developing countries,
should be aware of the implication andjustification of intellectual property right aswell as its unique nature. Without adequate
consideration, drafting intellectual property
laws or taking part of enforcing intellectual
property right by government authorities
may cause the long term difficulties.

96,68

Chart I: Ratio of Criminal IP Cases to Total
IP Cases in Six Countries
Ratio of Criminal IP Cases to Total IP Cases%10090807060

Year 2004

50Year 2005

2Balance of Right of Holder and Public
Interest
The objectives of most international
convention related to intellectual property
right share one same concept—the balance ofright of intellectual property holders andpublic interest. The content of most WIPO

40
30
20
100U.S.

ChinaJapan

TaiwanVietnamThailandCountry(*1) See The Preamble of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Article 7 of the TRIPS
Agreement also clearly states the objective of the Agreement that “The protection and enforcement of intellectual property rights should

contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage ofproducers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights andobligations.”

5IIP Bulletin 2007

and the need of harmonizing theirlegislatures and practices in a proper degree.
Ratio of criminal prosecution and civil
caseload is one of the best examples showing
the cry for harmonization. The difference
between 1 percent of the United States
criminal prosecution and 96 percent criminal
prosecution by Thai police and publicprosecutors is not just the dissimilarity ofpractices, but the opposite polar. Such
differences can not provide the decent benefit
and efficiency for intellectual property rightprotection in the long term.

treaties and the TRIPS Agreement areexcellent
examples.(*1)
Besides,
mostdeveloped countries have applied suchbalance into their legislatures and practices.
The United State Constitution, Art 1, Section
8, Clause 8 and enforcing practices of stateauthorities in Japan, the United Kingdom,
and the United States are good examples.
Developing countries also have international
obligation to follow as well as the need torecognize and apply the balance of right ofholder and public interest into theirintellectual
property
legislatures
andenforcing practices.
The content of article 32 and 60 of theVietnam Constitution and other Vietnam
intellectual property laws may be an example
showing that Vietnam legislature is concernof decent balance of interests as well as
justification of intellectual property right. On
the contrary, severe criminal penalties inThai intellectual property laws and several
amendments to increase such penalties showthat Thai legislature has been in theconception that criminal law should be themajor solution of intellectual property
disputes. Moreover, the amending of article
76 of the Copyright Law by the Department
of Intellectual Property in 1994 to share one
half of the criminal fine paid under ajudgment to the owner of copyright or
performer’ right, so called “fine sharing,”shows that the Department of Intellectual
Property and Legislature still do notunderstand the differences between criminal
fine and civil damages for the right holder. It
also illustrates the lack of understanding ofintellectual property right’s justification.

4Type of Remedy
Thejustification
andnatureofintellectual property right as well as thewell-establishedgroundinmostinternational instrument shares the same
standpoint that civil remedies are fit toprotect intellectual property right thancriminal penalties. Therefore, developing
countries should recognize and harmonize
their legislatures and practices to provide
adequate and effective civil remedies for theright holders to enforce their civil rightefficiently.
On the other hand, criminal remedy isnecessity only in certain large scale ofinfringement those right holders could notenforce their right efficiently. Accordingly,
developing countries should limit criminal
intellectual property offences in the proper
scope and be aware of justification andnature of intellectual property rights. In
addition, developing countries should avoid
enforcingintellectualproperty
rightsthrough governmental authorities and shouldprevent “over-criminalization” situation.

3

The Need of Harmonization
Due to its intangible nature, theintellectual property right is very extensive
and does not attach to any tangible object.
Such right can be claim and can be infringed
worldwide, not just within territory of any
country.
Accordingly,
harmonizing
intellectual property laws and related
practices is necessary for efficient protection.
Countries, especially developing countries,
should be aware of international standard

5

Other Considerations
For developing countries, enforcing
intellectual property right through criminalprosecution is not without cost. On thecontrary,immeasurable
numberof
government budget is spent each year on
criminal prosecuting civil disputes. Moreover,without exceptional managing plan, several
social impacts may follow in some developing
countries. Concisely, some considerations

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those should be aware of include issues of (i)cost of criminal prosecution, (ii) lack ofhuman resources and technical equipment,(iii) prosecuted infringer, and (iv) publicresistance.

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