Counterfeiting and Piracy: A Balancing Act of the Freedom to Copy and Intellectual Property Rights
1. EXECUTIVE SUMMARY
The aim of this thesis is to look at counterfeiting and piracy and the need for intellectual property rights to be protected, this will be balanced against human rights and the right to copy, (if indeed such a right exists?). This paper will look firstly at the general laws on intellectual property considering what intellectual property rights are and exactly who they seek to protect, then an overview of counterfeiting and piracy will be considered. The basis of the paper will be to discuss that this is an international problem and in the time of increasing globalization piracy and counterfeiting become difficult interests to protect against, especially in Bangladesh. It will be concluded that whilst privacy and Human Rights are very important, the rights that intellectual property seeks to protect are far superior and drastic worldwide measures should be taken to ensure that these intellectual property rights are protected. The paper will demonstrate that whilst some theories suppose a conflict with human rights, the reality is that no such conflict exists.
The paper will then consider in great detail whether or not there exists a right to copy. It will consider what the exceptions are in relation to the general rule that intellectual property rights should not be breached. It will consider that reproductions made by a natural person for private and non-commercial use, on condition that fair compensation is paid to the right-holder. Bangladesh does not have a generalized private copying right.
The paper will attempt to talk about the limits that exist to the protection o intellectual property in Bangladesh. It will then demonstrate that the trade of fake goods is no longer limited to cheap copies of luxury brands and recordings of music and films consumed mostly by tourists looking for a bargain souvenir and that almost every conceivable product is being illegally copied: from food to pharmaceuticals, from toys to car and plane parts, from toasters to mineral water. Finally the Human Rights angle will be considered and how the freedom to copy act and intellectual property act can be balanced.
2.1. What are Intellectual Property Rights?
Intellectual property (IP) is a term which refers to a number of distinct types of intangible creations using which property rights are recognized in the corresponding fields of law. In contrast to real property and personal property, it refers to what the minds of men and women have created, usually expressed or translated into a tangible form that is assigned certain rights of property. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.
2.2. Who and What do Intellectual Property Rights Seek to Protect
Intellectual property rights seek to protect the industry, innovation and invention, individual intellectual property rights, commercial intellectual property rights.
2.3. Overview of counterfeiting and piracy
- Counterfeiting: Counterfeiting is usually imitating products such as currency, documents, clothing, software, pharmaceuticals, watches, electronics, and company logos and brands with the intention of passing it off to the general population as a genuine product.
- Piracy: The unauthorized use or reproduction of copyrighted or patented materials (such as software piracy).
3. LIMITS TO INTELLECTUAL PROPERTY PROTECTION IN BANGLADESH
In Bangladesh Intellectual law cover trademark, copyright, and design. As far as transfer of technology and use of trademarks, copyright, and patents are concerned the protection of intellectual property is very much significant in Bangladesh. In Bangladesh the law relating to trademarks is the Trade Marks Act 1940.
The application of the trademark seeking for registration of the mark is to be filed with the Registrar of the Trade Mark Registry. The application is to be made in a prescribed form as given in the act with the information regarding the name, address, and country of incorporation of the applicant; class and description of the goods; and since when the trademark is being used in Bangladesh. The registration of a trademark is valid for a period of seven years, which may then be renewed for 15 years. The court may grant a relief which includes injunction and other damages or an account of profit together with or without an order delivery of trademarked labels and marks for destruction or erasure. Nothing is allowed to be passed on as per the Trade Mark Act 1940; that is it is wrong for any person to pas of his goods as and for the goods of another person. Both civil and criminal remedies are available for such infringement, counterfeiting, and passing off.
Patent law is governed by the Patents and Designs Act, 1911. An application for the patent can be submitted by any individual claiming to be the true and first inventor. Where the application is made by virtue of an assignment of the right to apply for a patent for the invention, there shall be provided with the application, or within three months from filing the application, proof of the right to make the application; or it can be made by the legal representative of any deceased person who immediately before his death was entitled to make such application.
An application which is accompanied by complete specifications will be examined, and objections on examination are communicated to the applicant for carrying out amendments and to re-file the documents for re-examination, if necessary. After all the objections are compiled with, the Controller of Patent will accept the specifications and advertise the acceptances in the Official Gazette and keep it open for the general public to inspect. If there is no opposing proceeding and it is finally decided in favor of the applicant, a patent is sealed on the request from the application in the manner prescribed.
Patent rights are granted to the patentee by the Controller of Patents, Patents and Designs Office. To maintain a patent in force, renewal fees are to be paid from the beginning of the fourth year from the date of patent.
The Copyright Act, 2000 allows the owner of the copyright to have exclusive right to supply multiple copies of his work for commercial purposes. It also refrain others to make copies of his work. Bangladesh is participant to two types of copyright conventions: the Berne Convention and the Universal Copyright Convention. By virtue of the provisions contained in these two multilateral conventions, the works of Bangladesh nationals are entitled to copyright protections in all the countries that are participant of these conventions. Foreign authors of these countries are authorized to have copyright rights in Bangladesh. Further, Bangladesh is a party to the convention establishing the World Intellectual Property Organization (WIPO) on 1 January 1987. Additionally the country is also a party to the General Agreement on Tariffs and Trade, 1994 (GATT).
4. BALANCING OF INTELLECTUAL PROPERTY AND FREEDOM TO COPY ACT
Recently there has been an issue of balancing the acts of intellectual property and freedom to copy. On one hand the expansion of intellectual property protection standards raises a number of issues about human rights relating to the right to life, health, food, privacy, freedom of expression, and enjoying the benefits of scientific progress. International experts, government officials, etc. are looking to this issue by analyzing in particular whether human rights should serve as ‘corrective[s] when [intellectual property] are used extremely and dissimilar to their function’. On the other hand, litigants, lawmakers, and courts are increasingly introducing basic rights – including the right of property – as a justification for protecting intellectual property and the corporations and individuals that own it. The European Court of Human Rights’ (ECHR) entry into this maelstrom of competing human rights-based claims to restrict or expand intellectual property raises important and difficult questions. For example, do intellectual property rights deserve to be treated as a fundamental right? And if it does, how does a human rights-inspired conception of intellectual property differ from existing rules that promote intellectual innovation and creativity? More concretely, what role, if any, should the ECHR play in shaping innovation and creativity policy in Europe? Should the Court favor the rights of corporate intellectual property owners over the rights of individual users and consumers, or should it strike a distinctive human rights balance among the actors with competing interests? These are the issues which arise under the particular concept and these questions are yet to be properly answered.
Counterfeiting is a global problem that has implications for consumers, governments, companies and international organizations. In order to properly address this problem the collaboration and involvement of all the before mentioned parties is required. Moreover it is multi0factoral and multi-dimensional problem that requires simultaneously co-ordinated actions from all these parties. Some of the categories in which action is required are: the use of technology, the use of legislative and regulatory mechanism, the strengthening of enforcement mechanisms, education of and communication with the public, and through with more rigorous practices with the distribution chain.
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http://www.aacp.org.uk/ – Alliance Against Counterfeiting and Piracy
http://www.patent.gov.uk/ – Patent Office
http://www.patent.gov.uk/ – IP Portal
http://www.out-law.com/page-1211 – European Legislation on Counterfeiting and Piracy
http://www.ifpi.org/site-content/press/20051012.html – Comment on European Commission’s Launch of Action Plan to combat counterfeiting and piracy
http://www.consumerdirect.gov.uk/general/counterfeit/fs_c01.shtml – Counterfeit goods
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 Intellectual Property Licensing: Forms and Analysis, by Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler. Law Journal Press, 1999-2008.
 Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work.
 A trademark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.
 A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention.
 An Industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian.
 A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.
 Trade Marks Act 1940- The law confers protection to the user of a trademark on his goods and prescribes conditions for acquisition of a trademark. A brand heading, label, ticket, name, signature, word, letter, or numeral, separately or in any combination thereof, may be registered as a trademark in Bangladesh.
 Campbell, C. (2007). Intellectual Property Protection. In C. Campbell, Legal Aspects of Doing Business in Asia and the Pacific (p. 78)
 Also see The Trade Mark Act 1940 form
 Campbell, C. (2007). Intellectual Property Protection. In C. Campbell, Legal Aspects of Doing Business in Asia and the Pacific (p. 78 & 79)
 The Patents and Designs Act, 1911 is an Act of the Bangladesh National Assembly. This Act extends to the whole of Bangladesh and came into force from the 1 January 1912. It mainly provides some definitions relating to this Act, i.e. definitions of ‘Attorney General’, ‘Copyright’, ‘Design’, ‘Patent’, ‘Manufacture’ etc.
 Also see Bangladesh Authority (2008), The Bangladesh Gazette
 Campbell, C. (2007). Intellectual Property Protection. In C. Campbell, Legal Aspects of Doing Business in Asia and the Pacific (p. 79 & 80)
 Why reform the Copyright Act?-Digital technology and the growth of computer networks such as the Internet have posed challenges to the protection and enforcement of copyright throughout the world. Creators and owners of copyright material need to protect their copyright on the Internet. Users of copyright material, such as libraries and educational institutions, are concerned about being able to maintain reasonable access to copyright material in a digital environment. Carriers and Internet service providers (ISPs) are worried about facing uncertain liability for copyright infringements which are committed by third parties whilst using their facilities.
The development of new communications technologies has exposed gaps in copyright protection under the Copyright Act 1968 (the Act). For example, the Act currently only grants copyright owners limited, technology-specific transmission rights, eg, the right to broadcast only extends to ‘wireless’ broadcasts, and the existing cable diffusion right does not extend to sound recordings or television and radio broadcasts. Further, copyright owners currently do not have effective rights in relation to the use of their copyright material on the Internet.
 The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest.
WIPO was established by the WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through cooperation among states and in collaboration with other international organizations. Its headquarters are in Geneva, Switzerland.
 The General Agreement on Tariffs and Trade (typically abbreviated GATT) was negotiated during the UN Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). GATT was formed in 1949 and lasted until 1993, when it was replaced by the World Trade Organization in 1995. The original GATT text (GATT 1947) is still in effect under the WTO framework, subject to the modifications of GATT 1994.
 World Trade Organization: WTO legal texts; General Agreement on Tariffs and Trade 1994
 Geiger, ‘Fundamental Rights Safeguard’, supra n. 15 at 1017-1018 (analyzing how international human rights law can be interpreted to impose ‘external limits on intellectual property’)
 See, e.g., Michael A. Carrier, ‘Cabining Intellectual Property through a Property Paradigm’, Duke L.J 54 (2004): I, I stating that ‘[o]ne of the most revolutionary legal changes in the past generations has been the “propertization” of intellectual property’); Kal Raustiala, ‘Destiny and Conflict in International Intellectual Property Law’, U.C. Davis L. Rev, 40 (2007); 1021, 1032 (stating that ‘the embrace of intellectual property by human rights advocates and entities…is likely to further entrench some dangerous ideas about property ; in particular, that property rights as human rights ought to be inviolable and ought to receive extremely solicitous attention from the international community’)
 Torreman, Paul, Intellectual Property and Human Rights (p. 29 & 30)