Hukum Pidana Ekonomi dan Kekayaan Intelektual (KI)


Intellectual property (IP) law protects the private rights of owners, while criminal law secures the public interests, for harm to the society. In the present technology-driven society, magnitude of IP violations, particularly, in the form of counterfeiting, etc. affect the interests of the general public, calling for the application of criminal law to ensure stringent IP protection. The intersection of IP and criminal law remains controversial, yet significant, as it is in the interest of those in the field to examine the provisions beyond the scope of private right regime, as a public policy that can have a direct impact on public interests. This chapter analyses the intersection of criminal law and IP through a blend of exploratory and analytical methods. First, the authors situate the criminal law discussion in the domain of IP rights and examine how far the elements of crime may be identified in IP violations.

Second, the concept of economic crimes as distinct from conventional crimes is discussed. In this regard, the laws of India, the United Kingdom (UK), and the United States (US) are examined, along with the most recent international developments, to show the trend towards criminal enforcement as the best possible protection for legitimate businesses and consumers. The chapter leaves much scope for future work whereby a balanced response to counter IP violations may be designed to benefit innovation and development.

Intellectual property (IP) law aims to protect the application of ideas and information from commercial exploitation without the consent of the right holders. The era of fast emerging technological developments has paved the way for new forms of violations against these types of intangible properties. In some areas, civil law protection still does not seem to be an appropriate and efficient method to counter the ever-increasing menace of substantial commercial violations prevailing in the IP area. For this reason, the application of criminal law for possible protection of IP—even though not a new phenomenon—is becoming a universal practice globally, which is quite controversial and highly debated.

It is known that while IP law protects the private rights of the owner and licensees of IP, criminal law has always been a tool to protect the public interest by justifying criminal sanctions for harm to the society. However, some scholars argue that since nowadays the magnitude of IP violations, particularly in the form of ‘counterfeiting’ and ‘piracy’1 directly or indirectly affect the interest of the general public, criminal law has become an adequate tool to ensure more stringent IP protection.2 Infringing goods are sold via the e-commerce platform to consumers and wind their way through supply chains into everything from cell phones to weapons. As noted by several studies, IP owners may suffer brand diminution and economic loss as a result of these products. The Hargreaves report in 2010 pointed out that 'IP rights cannot succeed in their core economic function of incentivizing innovation if rights are disregarded or are too expensive to enforce. Ineffective rights regimes are worse than no rights at all'.