In 1709 the first English copyright statute (the "Act of Anne") outlawed the unauthorised reproduction of literary works, and imposed monetary fines payable in equal share or "moeity" to the Crown and the copyright holder, along with compulsory forfeiture an d des true tion of infringing copi es . Th e di visi on of labour be tween public and private in the enforcement of intellectual property rights has become somewhat less well defined since, though a public role is clearly entailed by the inclusion of criminal infringement provisions in modern copyright and trademarks legislation. Part of the difficulty lies in the limited capacity of public law enforcement agencies to deal with all demands on their resources, along with a reluctance to intervene in what is often seen as private commercial disputation. Added to this are rapid changes in technology, which provide new opportunities both for the infringement of intellectual property rights and their protection.
This Trends and Issues paper assesses the role of public enforcement of intellectual property rights through the recent experience of Australian customs, police and prosecution agencies.
Intellectual property has emerged over recent decades as an increasingly valued "capital asset", particularly in the transition to an information-based economy (Wineburg 1991, p. 1):
Intellectual property-patents, trademarks, copyrights, and trade secrets-has become recognised for what it is: a major capital asset. The success of many companies domiciled in many different countries depends increasingly on whether they can use the technology of their choice. Use of technology of choice is increasingly determined by who can claim legal rights to that intellectual property and by whether those rights are valid and enforceable.
Against this background the protection of intellectual property becomes a business imperative. Not surprisingly, many larger (multinational) enterprises and industry groups have chosen to defend their interests through commercial litigation (see, for example, the anti-piracy web sites of Microsoft, the Business Software Alliance, the Business Software Association of Australia, the International Federation of the Phonographic Industry [IFPI], the International Intellectual Property Alliance and the Recording Industry Association of America). In Australia, smaller enterprises and individual traders have also been able to act collectively through a range of industry groups (see the web sites of the Australian Copyright Council, the Australasian Performing Right Association and Australian Mechanical Copyright Owners' Society, the Australian Record Industry Association, the Audio Visual Copyright Society and the Copyright Agency Limited). By contrast-and perhaps to some extent as a result-the role of traditional public law enforcement agencies in the protection of intellectual property has over recent years become subject to increasing uncertainty.
Part of the problem is undoubtedly the rapidly changing technological environment within which the information economy operates. There is inevitably a significant timelag between the emergence of new technologies enabling novel forms of breach of intellectual property rights and the consequent refinement of laws protecting those rights. The general relationship between law, technology and intellectual property rights has been described as follows (Lessig 1999, p. 124):
Strengthen the law, holding technology constant, and the right is stronger. Strengthen the technology, holding the law constant, and the right is weaker.
Of course, this is a simplification-for one thing, emerging technologies provide new opportunities not only for breach of intellectual property rights but also for their protection. A new industry of electronic security services has begun to emerge, offering technological solutions to such business risks by way of encryption, water-marking, secure payments systems, virtual private networking and so on (Fiorini 2000; Grabosky, Smith & Dempsey forthcoming). …