Trans-Pacific Partnership Agreement minus one and enhanced criminal penalty for online copyright piracy: Malaysia’s options

The burgeoning of online piracy enables copyright materials to be routinely downloaded and exchanged for free, without any deliberate intention to infringe copyright. These acts were done for the purpose of sharing and attract no commercial value, and, hence, may not be considered as culpable criminal conduct because of the lack of intention. The Trans-Pacific Partnership Agreement (TPPA) introduces enhanced criminal provisions which are much harsher than the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) with a view to fight online copyright piracy. Even though the United States of America (US) have withdrawn from the Agreement, the other eleven countries are attempting to revive the Agreement, minus the US. The possibility of the Agreement being eventually implemented by the eleven-member countries is still real. This article examines two new criminal provisions introduced by the TPPA. The first is the criminalization of wilful copyright infringement even if carried out on a non-commercial basis. The second is the culpability of aiding and abetting of copyright offences. As these provisions are already in place in US law, reported judgments from the US on corresponding provisions would be examined. The article concludes with choices that Malaysia could consider in the event these two new obligations are implemented

Criminalisation of copyright piracy and international trade : a marriage of convenience? the case with transpacific partnership agreement

The signing of the Transpacific Partnership Agreement (TPPA) between twelve member countries, with Malaysia included, has set a new, higher benchmark for copyright enforcement. In three ways, the landscape of copyright law has been changed significantly. First, TPPA expand the coverage of the kinds of Intellectual Property recognised. Secondly, what constitute copyright violations has been expanded. Thirdly, sanctions for copyright piracy has been made tougher and sentencing lengths for such piracy has been lengthened. The usage of trade agreements to compel countries to improve copyright domestic policy is not a new strategy. The antecedent to TPPA is the TRIPs Agreement that was concluded on the basis that copyright piracy and counterfeiting has grown from just mere domestic nuisance to an effective barrier to free trade. This paper addresses the TPPA and analyses the rationale to the introduction of more stringent measures under TTPA. It seeks to understand the shift in the discourse of the policy makers regarding the 'severity' of copyright offences. It examines questions such as to what extent should copyright infringement be criminalised? Even if it is criminalised, why must it be imposed with more severe penalties than an ordinary economic crime

Production politics and migrant labour advocacy in Singapore

Since 2005, NGO activism, calling for greater legal protection for contract migrant workers has been the most concerted challenge to Singapore’s migrant labour regime. Despite a severely restricted civil society space, migrant labour advocacy has delivered small but significant reforms to laws covering migrant labour. The existing literature on migrant labour advocacy focuses on the importance of civil society space in determining the outcomes of organised contention. In the Singapore context, the limitations of advocacy are emphasised and explained in terms of the illiberal nature of the People’s Action Party-state and the strategies deployed by non-governmental organisations. Such an approach is limited in its explanatory potential as it only states what political spaces are not available without examining how spaces for contention are created. In contrast, this article identifies the production politics between migrant workers and their employers as crucial in influencing the extent to which spaces for non-governmental organisation contention can be carved out. Accordingly, this article argues that forms of production politics leading to worker desertion from the workplace, rather than tactical accommodation, have provided non-governmental organisations with the impetus to push forward reform agendas within an authoritarian political environment

Trademark Enforcement through Border Measures: The Case of the Gulf Cooperation Council States (GCC)

PhDTrademarks are a valuable asset of a business and play a crucial role with regards to the quality of goods and its reputation, however, the rise in counterfeiting activities is undermining those benefits. Counterfeiting activities are considered to be the fastest growing phenomenon that focuses solely on reputable international brands ranging from cosmetics, watches, shoes and clothing, to cars and aeroplane parts. It has engulfed the world economy by dealing with fake commodities and intellectual property rights across the board. The PhD thesis looks at the relevant trademark laws in the Gulf Cooperation Council States (GCC) as an effective enforcement mechanism to deal with the rise of counterfeiting activities in the region. The GCC States have been listed among the countries with significant problems in terms of intellectual property protection and enforcement. Thus, the importance and effectiveness of border measures, judicial process, including civil and criminal proceedings in all six Member States are analysed using a combination of comparative, doctrinal, and socio-legal research. The main objective of the thesis is to show the degree to which the GCC States' legislative regimes and their enforcement efforts addresses counterfeiting problems to meet their international treaty obligations.University of Bahrain

The Legal Aspects of Cybercrime in Nigeria: An Analysis with the UK Provisions

Cybercrime offences know no limits to physical geographic boundaries and have continued to create unprecedented issues regarding to the feasibility and legitimacy of applying traditional legislations based on geographic boundaries. These offences also come with procedural issues of enforcement of the existing legislations and continue to subject nations with problems unprecedented to its sovereignty and jurisdictions. This research is a critical study on the legal aspects of cybercrime in Nigeria, which examines how laws and regulations are made and applied in a well-established system to effectively answer questions raised by shortcomings on the implementation of cybercrime legislations, and critically reviews various laws in Nigeria relating or closely related to cybercrime. This research will provide insight into current global cybercrime legislations and the shortfalls to their procedural enforcement; and further bares the cybercrime issues in Nigeria while analysing and proffering a critique to the provisions as provided in the recently enacted Nigerian Cybercrime (Prohibition and Prevention) Act 2015, in contradistinction to the existing legal framework in the United Kingdom and the other regional enactments like the Council of Europe Convention on Cybercrime, African Union Convention on Cybersecurity and Personal Data Protection 2014, and the ECOWAS Directive on Cybercrime 2011

Piracy and counterfeiting: the freedom to copy vs. intellectual property rights.

PhDSince 1980, many countries have passed new intellectual property laws, or revised their laws. The same period witnessed the birth of more trade associations which work to combat unauthorised copying. Nonetheless, it is estimated that piracy and counterfeiting still account for about 5% of world trade. National responses to piracy and counterfeiting are often determined by how deeply local interests are affected either way. Since the intellectual property repertoire of most developing economies is usually much smaller than that of industrialised economies, the costs to the former and the loss to the latter often polarise the globe into the strong advocates of the intellectual property system and those who advocate a freedom to copy. This thesis which focuses primarily on Nigeria and the UK, suggests that the concept of intellectual property is not alien to developing economies because many pre-literate societies had recognised and protected intangible rights which bear some semblance to the intellectual property system. Now, irrespective of any influence the system may have had on economic growth in any country, intellectual property has assumed ever greater economic significance - as a trade issue within the context of GATT. Any country wishing to benefit from GATT must respect the intellectual property rights of others. Fears that an intellectual property system makes possible the abuse of a monopoly (that may be created by virtue of intellectual property rights) are not justifiable because of various measures, including rules of competition or anti-trust that can be used to check any abuse of monopoly. The thesis attempts to categorise infringers, demonstrates the harm caused and suggests additional new criteria for liability particularly for those in a quasifiduciary relationship with right holders such as licensees, agents, employees and former business associates. It highlights some of the difficulties involved in criminalising intellectual property infringements and suggests improvements. It examines issues like the suitability of criminal sanctions to the breach of unregistered marks or patents, the relevance of presumptions, the onus of proof of a guilty mind and private prosecution. The thesis explores some of the substantive and procedural aspects of TRIPS, reveals gaps which may cause problems and recommends changes. The procedural issues discussed include: inspection and seizure orders, border control measures, the privilege against self-incrimination, and the absence of specific obligations to grant Mareva orders or create special procedures or courts for intellectual property. TRIPS' standards for patents, trade marks and copyright are addressed primarily in the light of the pharmaceutical and computer software industries. Irrespective of good laws, effective action can only be taken if right holders, law enforcement agents, judges, governments, WIPO and the World Trade Organisation demonstrate a positive response to the intellectual property cause

Rethinking Copyright from the ‘Capabilities’ Perspective in the Post-TRIPs Era: How can human rights enhance cultural participation?

The current scholarship on copyright predominantly considers this area of law from the standpoint of economics. Likewise, since the adoption of the TRIPs Agreement, contemporary copyright law-making and practice has mainly been constructed around the assumption that its job is to create incentives to make more expressive works in the form of copyright embedded in goods and investment. Copyright law has heavily skewed towards the protection of corporate copyright ownership rather than individual authorship. In this model, culture is seen as the marketplace for merchandising and producing the products of copyright industries and an economic space facilitating the process of creativity. Intellectual properties are said be essential assets in firms’ portfolios and an important component in the macro-economic development of a country. Thus, current copyright law has predominantly an economic-oriented model that shapes its cultural and development policies. This thesis offers an alternative framework for copyright law focusing not on economic development alone but on more broadly promoting human development and one of its predominant framework, namely the ‘capabilities approach’, to transform the ‘controlled culture’ that individuals live in to a ‘fair culture’. Thus, this study’s central research questions are: How could western (UK, EU, and US) copyright laws’ economic-oriented development and culture visions be reshaped through the capabilities approach and ‘participatory culture’ considerations in order to enhance participation in culture? And what legal resolutions and remedies could be drawn from the fundamental rights framework (specifically from the right to take part in cultural life and freedom of expression) to make such a shift in copyright laws? Freedom is a crucial value in the construction of a fair culture within copyright. Inspiration here is Amartya Sen’s concept of ‘development as freedom’ and Martha Nussbaum’s idea to rationalise these freedoms as touchstone values in constitutional entitlements. To promote ‘development as freedom’, in Amartya Sen’s words, copyright law cannot be detached from the considerations of fostering people’s capabilities to participate in cultural and political life. Therefore, the main contention of this thesis is that copyright law does more than encouraging the creation of more commodities and investment: it fundamentally affects human development and substantive freedoms, or capabilities, of all people to live a good life in a democratic culture and society. The challenge that this thesis posits is how to bring the politics of human dignity and the politics of welfare into a single framework within copyright law. To this end, the capability-oriented human rights assessment of copyright law is brought to open a fresh discussion over the conventional wisdom mentioned above. To replace the existing ‘culture and economic development model’ with the ‘culture and human development model’, this study identifies capabilities or substantive freedoms (cultural human rights and freedoms), as a way of evaluating copyright law’s goals in general and its impact on individuals’ capabilities to freely express themselves and participate in cultural and political life. As an alternative to traditional development measures, Sen and Nussbaum propose the concept of the advancement of ‘central capabilities’ in which capabilities represent ‘what people are actually able to do and to be’. This inquiry aims at creating a synergy between the ‘capabilities approach’and human rights framework through the identification of relevant capability-based cultural human rights and freedoms to set a normative base for the construction of a fair culture. Again from a capabilities perspective, this thesis further analyses some contemporary issues surrounding contemporary copyright enforcement measures - namely notice-and-4 takedown and graduated response procedures, file sharing, disclosure orders, filtering and website blocking orders, the extension of copyright terms, pre-established/statutory and additional damages, technological protection measures and the intermediary liability, the extension of criminal liability and notice-and-staydown - where the tension between copyright law and cultural human rights and freedoms are more acute. This helps to identify the important cultural netibilities (freedoms/capabilities on the Internet) in a networked world. In the final analysis, this thesis proposes two frameworks, one for legislators and one for courts, to engage with these cultural human rights and freedoms which are of importance for the advancement of human development. In the former framework, the copyright rules laid down by the Trans-Pacific Partnership Agreement are discussed as a case study to show more concretely how copyright law affects human development and to make proposals for future direction of treaty and law-making with respect to it. The second framework, by fundamentally relying on the legal test proposed by Abbe Brown in her book “Intellectual Property, Human Rights and Competition: Access to Essential Innovation and Technology,” aims to complete this thesis with the introduction of a legal test (deconstructive multiple proportionally test) for courts to engage with a conflict of norms between human rights and copyright, which will make them take cognisance of human development paradigm, when such a conflict is encountered.University of Exeter, College of Social Sciences and International Studie