Frequently Asked Questions

International Law: Intellectual Property

What intellectual property misappropriation constitutes a crime?

Although civil remedies that may provide compensation to wronged intellectual property rights holders are available, criminal sanctions are often warranted to ensure sufficient punishment and deterrence of wrongful activity. Indeed, because violations of intellectual property rights often involve no loss of tangible assets and, for infringement crimes, do not even require any direct contact with the rights holder, the rights holder often does not know it is a victim until a defendant's activities are specifically identified and investigated. Congress has continually expanded and strengthened criminal laws for violations of intellectual property rights specifically to ensure that those violations are not merely a cost of doing business for defendants. Among the most significant provisions are the following:

    * The counterfeit trademark crime is set out at 18 U.S.C. § 2320 ;
    * Criminal infringement of copyrighted works is set out at 17 U.S.C. § 506(a) and 18 U.S.C. § 2319 ;
    * The counterfeit labeling provision is set out at 18 U.S.C. § 2318;
    * Theft of trade secrets prohibited by 18 U.S.C. §§ 1831 and 1832

Experience has proven that federal investigators and prosecutors can bring cases under these provisions that result in punishment for the wrongdoer, as well as deterrence for intellectual property crimes.

In addition, Congress is concerned about providing adequate protections for both foreign and domestic owners of intellectual property. Indeed, the United States government has committed, in a number of international agreements, to protect intellectual property rights holders, including foreign rights holders, from infringement in the United States. The United States is a member of the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), both of which administer agreements that have established international IP standards. The WTO's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), Sept. 27, 1994, is the most comprehensive agreement to date, and the first to include enforcement provisions.

Some misuse of intellectual property has not been criminalized. For example, infringement of a patent is not generally a criminal violation. Likewise, the laws protecting personally identifiable information do not generally provide for criminal penalties except in the most narrow of circumstances. See 18 U.S.C. § 2710 (wrongful disclosure of video tape rental or sale records).

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