Criticisms misunderstood iPad litigation in China.

      Apple company litigated a Chinese company who had registered the name “iPad” as trademark in China. But finally Apple ended up the litigation with reconciliation in which Apple buys the trademark “iPad” from the Chinese company by money. Observing the case, lay public may think that the Chinese company is dishonorable and unpardonable. Actually, there are many comments on newspapers and web to accuse the Chinese company and also Chinese government. But, in point of fact, to accuse the Chinese company is wrong. It is understandable that layman attempt to think stereotyped such that China is uncivilized and Chinese are selfish. In spite of these layman's thought, nowadays Chinese government procedure of trademark registration is exact and reliable as same as USA or Japan. Also, nowadays Chinese litigation system works with strict fairness once a litigation officially occurs. In such social situation, Apple finally paid money to the Chinese trademark holder. It means Apple was defeated on the litigation substantially. It also means that, in the fair social rule, the Chinese company is right and reasonable. Although there is criticism that “Apple paid money because Apple hated long-time pending litigation.”, the criticism is also inappropriate thought of man who doesn't know legislation system well.

      The true and essential problem exists in another place. The true problem resides in the trademark laws which most countries in the world use. 
      The first problem is “first file” system. First come, first file. Government should give trademark right to the person who file an application of a product name first to the government when the name is not yet in the market place in the country. The government has given the applicant the trademark right without regard to whether the applicant actually use the name or not in the marketplace. This government procedure can be done with the official fee less than one thousand dollars in many countries. It is so cheap. Then, many people get many names as trademark right and keep them without using them not only in China but also in many other countries.

      Then, as the countermeasure against these “sleeping” trademarks, most governments made a rule to cancel the trademark when it is not used. This is called cancellation by no-use. But, the second essential problem is the cancellation by no-use is very lax stipulation in most of countries. At first, the moratorium period is three (3) years in many countries. If the owner of the trademark has not used it for 3 years, third party can raise a petition for cancellation. In other words, the owner of trademark does not need to use it nearly 3 years. This moratorium period is too long. And, moreover, it is also big problem that very superficial evidence can be submitted as a proof of actual use of trademark. It is all right if the owner has placed a small advertisement on a local newspaper only once in the 3 year. Or, it is all right if the owner has submit an invoice on which the trademark is described once in the 3 year. With one of these evidence, the owner can maintain his trademark right continuously. If the actual trading activity is same as these evidence, it is substantially same as no-use. Hence, superficial “first file” system and lax cancellation system make enormous sleeping trademarks which we (or government) do not have to protect.

      The above situation is not only in China but also many other countries. Such system and situation is the true problem. Then, before you criticize that Chinese companies, you must think about this essential problem of trademark legislation system.

Intellectual property right = Human Right ?????

 

Intellectual property right = Human right ????? - No, Yes, and No

To begin with, what on earth are “human rights”? Human rights are the basic rights that every person has. For example, right to live, right to work, freedom from slavery, freedom to think, and so forth. Whereas, intellectual property rights are copyright, patent right, trademark right, and so forth.

In the past, as the international consensus concerning human right, United Nations adopted Universal Declaration of Human Rights (UDHR) in 1948. Human rights are listed in UDHR. Concerning intellectual property right, Article 27 (1) (2) and 23 (2) are related.

Article 27 (1)

Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Article 27 (2)

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 23 (2)

Everyone, without any discrimination, has the right to equal pay for equal work.

Article 27 (1) implies that every person has the human right to share intellectual property. It means that intellectual property monopoly must be restricted. While, Article 27 (2) implies that a person who creates something has the human right with which his moral and material interest should be protected. We must realize that 27 (1) is the major part of the human right, and 27 (2) is the counter balance part to complement 27 (1). That is to say, basic human right is “Sharing intellectual property”, and supplementary right is “Getting moral and material benefit”. So, the answer for the question in title of this article is “No (for monopoly), and Yes (for creators' interest).”

Article 23 (2) may relate to patent right. Patent system grants only one inventor to monopolize a technology. In the event that two inventors invented the same invention at the same time without knowing each other, only one inventor who file it to the government earlier is granted monopoly. And the second inventor is prohibited from using his own invention although the second inventor made same effort as the first inventor. Thus, patent system is in breach of Article 23 (2). This is the basic problem of patent legislation system. On the other hand, in the copyright system, when two creators create the same thing, both persons can use his own creation made by himself. In this regard, at least, copyright system complies with human right. Patent system, not.

UDHR is merely declaration which has no strong binding force. Then, after adopting UDHR, United Nation had been making big effort to draft concrete treaty. Then, two covenants, International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) were adopted by the United Nations General Assembly in 1966 as a multilateral treaty. In ICESCR, Article 15 utters the same thing as UDHR Article 27 (1) and (2) described above. Also Article 7 (a) utters the same thing as UDHR Article 23 (2) described above. In ICCPR, there is no IPR-related concrete description about intellectual property.

Thus, concerning intellectual property, the first right is for everyone to enjoy the arts and to share in scientific advancement and its benefits. This means that we have the human right to use other persons' intellectual property. And the second right is for creators to enjoy the moral and material interests, with the duty to give the first right to other person. The third right is, according to my interpretation, equal pay (interest) for equal work (creation) concerning the efforts of inventions.

The basic spirit underlying these human rights is "hatred against monopoly".

< Glossary >

Universal Declaration of Human Rights: 世界人権宣言

International Covenant on Economic, Social and Cultural Rights: 国際人権規約のうち社会権規約（A規約）

International Covenant on Civil and Political Rights: 国際人権規約のうち自由権規約（B規約）

How Much Hursh IPR Punishment Should Be ?

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)