How much harsh IPR punishment should be?
Many people in developed countries say that the punishment against IPR infringers are quite lenient in developing countries. Punishment in developing countries should be more harsh. But, this argument seems to be naive and immature. We need to study the issue much more profoundly from various viewpoints.
In order to decide the level of punishment, I think we need to have several viewpoints as described below:
(1) Correlation between the severity of punishment and number of crimes
Simple argument is that "the more harsh the punishment is, the less the crimes are". This is very simple thought. In the past, New York City had suffered from huge number of crimes. Then, in 1994, Mayor Giuliani started his policy with very harsh punishment based on "Broken Window Theory". "Broken Window Theory" is a bit more sophisticated system than mere "harsh punishment". And actually the number of crimes decreased drastically. But, nowadays, some research studies show that there were many other reasons and facts for decreasing the number of crimes at his time in NYC apart from harsh punishment. As a fact, in the same period, number of crimes decreased similarly in many other cities, too, in USA, although the punishment of those cities are not so harsh as NYC.
More famous arguments are about capital punishment. It is known that there is no correlation between the number of crimes and whether the crime should result death penalty or not.
(Reference: http://www.amnestyusa.org/abolish/facts_fgures032002.pdf )
(2) Balance of the severity among the similar crimes.
Crime of IPR infringement is basically a kind of economic crime. In this regard, it is similar to theft, plunder, misappropriation, or fraud. If someone wants that the punishment for IPR infringement should be more harsh than other economic crimes, he should show an appropriate and persuasive reason. But actually, many of arguments which request harsh IPR punishment don’t seem to be persuasive.
While, TRIPs stipulates about how IPR criminal punishment should be. Section 61 of TRIPs lets the IPR punishment be consistent to "corresponding gravity" of other crimes in each nation. Then, developing countries are allowed to have their own discretion for severity of punishment based on their commonsense, culture, and tradition .
(3) Harsh punishment may make the crime more “desperate”
There is a edifying fact about Japanese drinking driving. Japanese government made the punishment against drinking driving very much harsh. When a drunk driver made an accident, he would be punished very harshly. After then, what happened is the increase of hit pedestrians and run away. The driver never stop to save the injured pedestrian to take him to hospital. Because even if he save the pedestrian, he will be punished very harshly if police detect alcohol from him. It's better for him to run away leaving injured person on the road. One day after, even if he is arrested, since police cannot detect alcohol from him, he is punished merely by hit and run away. And then, actually, many injured pedestrians finally died because of late nursing.
IPR same. One possibility is that if a counterfeit shop boy makes a blunder and the crime is revealed to police, the mafia syndicate may injure the boy, or may kill and discard the boy before the boy confesses. Another possibility is that counterfeit shopkeeper may always carry guns with them, which drive the society fearful.
(4) Officers' overlooking and arrest ratio
Ideally, all the offenders should be punished. If police officers arrest only some offenders, and police officers overlook many other offenders, this is quite unfair enforcement of law. The more harsh the punishment is, the more serious the problem of unfairness between the arrested and the overlooked is. Since general public can easily find counterfeit sales, general public also can easily find out the unfairness of police when police arrest only certain offenders. Then, it causes the people to distrust police and government, instead of thanks for arresting some bad persons.
(5) Bribe for overlooking
It is natural that the number of bribing and amount of bribe for overlooking increase when the punishment become more harsh. Especially in the countries where the salaries of officers are low, it is difficult for many officers to refuse big amount of bribe. Then, harsh punishment makes corruption more worse.
(6) Policy of punishment against juvenile and ignorance
In many countries, punishments are lenient for youngsters and youths. Who are youngsters and youths? In order to promote rehabilitation and reclaim, punishment should not impose by considering only his physical age, but also you should consider his education and intelligence. Even over 18 years old, there are cases to impose lenient punishment considering his pitiful circumstances and poor education, especially not in developed countries. Especially, since IPR laws are, generally-speaking, very difficult to understand, it is too heavy to require people to understand what is lawful and what is illegal in IPR. For example, how many of ordinary people have understood the concept of copyright “fair use” which is very basic in copyright legislation?
(7) high cost of imprisonment
Government needs big cost to maintain imprisonment. Very secure facility (prison) is necessary. Manpower (prison keepers, counselors, doctors, etc.) is necessary. Prison keepers should be well-disciplined. Counselors, doctors, and other staffs also should be skillful. This means high pay for them. Foods, sanitary, electricity and so forth, everything need money. It is said that to keep a person in jail costs more than ten times expensive than to keep a person in a normal house doing nothing particular in developing countries.
From the viewpoint of the beneficiary pays principle, who should bear the cost? Especially for IPR crimes, beneficiary is not domestic citizens, but it is usually big foreign companies.
(8) Prison population rate
There is data of "Prison population rate" per 100,000 of national population. In most of developed countries, the rate is two digit (10-99). But, in USA, the rate is 753. This is extraordinarily abnormal as a developed country. For developing countries, which level of the rate should they aim? Peaceful country level such as Japan and Europe?, or troubled country level such as USA? For example, the rate in Thailand is 313. To increase, or to decrease?
(Reference: the data http://www.kcl.ac.uk/schools/law/research/icps )
(9) Poverty and unemployment yield crimes
In many countries including USA, there are facts that poverty and unemployment cause the increase of crimes. Poverty and unemployment can be the major reason of economic crime. Then, the first thing for the government to do is to concur poverty and increase employment. before punishing the people. This priority is important. To arrest poor people yield nothing. On the contrary, to arrest and imprison people need much cost as described in the above term, “Cost of imprisonment”.
The above are the viewpoints when a government determine the harshness of IPR punishment. When a developed country wishes to ask a developing country for more harsh IPR punishment, the developed country’s argument should be persuasive on the above viewpoints.
(2011.03.13 Sadaisan)
