Journal of Legal Research

Journal of Legal Research

The Effect of Attitude and Economic Foundations on Criminal Policy Making in the Field of Intellectual Property

Document Type : Original Article

Authors
Melika Khalilollahi 1
Mohsen Sadeghi 2
Shahla Moazami 3
1 PhD Student in Criminal Law and Criminology, Kish International Campus, University of Tehran, Kish, Iran.
2 Associate Professor, Department of Private Law, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran.
3 Associate Professor, Department of Criminal Law and Criminology, Faculty of Law and Political Sciences, University of Tehran, Tehran, Iran.
10.48300/jlr.2023.354357.2188
Abstract
Today, the traces of intellectual property rights can be seen in all fields. On the other hand, the economy has long been necessary for the progress and continuity of a country. Intellectual property rights have a direct and indirect relationship with economic growth and development, with efficient and appropriate laws in this field, it can be seen in different sectors. Therefore, the aim of this research is to analyze and investigate the effect of economic attitude and fundamentals on criminal policies in the field of intellectual property rights (in a qualitative way) and to answer the question that economic attitude and fundamentals affect the optimal criminal policy in What kind of appropriate and efficient punishment does this area need? The hypothesis of the research is that the nature of intellectual property crimes is such that it seems that the punishment of monetary penalty and also the consideration of punitive damages is more efficient than the punishment of imprisonment, and according to some evidence, the punishment of imprisonment cannot be efficient and useful, in other words, the costs of the crime should be also considered. This research is based on documentary and field methods in the form of interviews with the benefit of library resources and so on. Also, this research shows that in the case of determining the punishment of imprisonment, a criterion should be determined based on the type of crime, based on the conditions, and considering various factors for the criminal.
Keywords
Intellectual Property Rights
Economic Attitude
Economic Foundations
Criminal Policy
Punishment

  • Persian References

    Books

    • Ashoori, Mohammad (2019), Prison alternatives or alternative punishments (with last revisions), Tehran: Jahesh Publishing Center.
    • Ashoori, Mohammad (2003), Prison alternatives or alternative punishments, Tehran: Gerayesh.

    Aron, Raymond (1991), Main Currents in Sociological Thought, translated by Bagher Parham, second edition, Tehran: Enqelab-e eslami publishimg and Education (Sahami Company).

    • Ansel, Mark (1991), Social Defense, translated by Mohammad Ashoori and Ali Hossein Najafi Abrandabadi, Tehran: University of Tehran Press.
    • Eghtesadian, Mohammad Reza;Hosseini-nejad, Seyyed Morteza, (2004), Crime economy in Iran, Tehran: Tadbir eqtesad research institute.
    • Alasti, Sanaz (2007), Criminal Infringement of Copyright (in Iran and comparative study with United States and International contracts), second edition, Tehran: Mizan.

    Borhani, Mohsen; Nouri Zeinal, Elmira (2017), Restorative justice encyclopedia, punishments, crime costs and restorative justice, Articles of international conference, Tehran: Mizan.

    • Pradel, Jean (2021), Histoire des doctrines pénales, translated by Ali Hossein Najafi Abrandabadi, 12th edition, Tehran: The Organization for Researching and Composing University Textbooks in the Humanities (SAMT), Institute for Research and Development in the Humanities.
    • Dadgar, Yadullah (2010), Components and principals of law and economy, Tehran: Noor-e Elm Publications and Tarbiat Modares economics research institute.
    • Danesh, Taj Zaman (1997), Prisoners' rights and prisons science, 3rd edition, Tehran: University of Tehran press and publications.
    • Dehkhoda, Ali-Akbar (1994), Dehkhoda dictionary, second volume, Tehran: University of Tehran press and publications.
    • Robertson, Ian, (2006), An introduction to society (Emphasizing the theories of functionalism, Conflict and symbolic interaction), translated by Hossein Behravan, fourth edition, Mashhad: Astan Quds Razavi, Behnasher Company.
    • Samuelsen, Paul; Nordhaus, William (2016), The principles of economic science, translated by Morteza Mohammad Khan, Third edition, Tehran: Elmi farhangi Publishing Company.
    • Shams, Ali (2003), A new approach to prison system: Blissful return, Tehran: Organization of prisons and security and educational measures of the country, Rah Tarbiat publications.
    • Foucault, Michel (1999), Care and Punishment (The Birth of Prison), translated by Niko Sarkhosh and Afshin Jahandideh, Tehran: Ney.
    • Caporaso, James A.;Levin, David P.(2013), Political economy theories of, translated by Mahmoud Abdullahzadeh, second edition, Tehran: Sales Publications.
    • Katouzian, Nasser (1986), Philosophy of Law, first volume, second edition, Tehran: Behnshar.
    • Clarkson, C.V.(1992), The analysis of the basics of criminal law, translated by Hossein Mir Mohammad Sadeghi, Tehran: Cultural Vice-Chancellor of Jahad-e daneshgahi of Shahid Beheshti University
    • Cotter, Robert;Yolen, Tamas (2009), Law and Economics, translated by Yadaleh Dadger and Hamede Akhwan Hezaveh, Hamedan: Noor-e Elm Publications.

     

    Koolaee, Elaheh; Tishehyar, Mandana (2012), Development in India (An Iranian outlook), (Sadeghi, Mohsen, The analysis of intellectual property law policy making in India with the approach of providing developmental requirements,Tehran: Mizan.

     

     

    • Mallory, Philip (2004), Legal Thoughts, translated by Morteza Kalantarian, Tehran: Agah Publications..

    Mazlouman, Reza (1979), Cruel and bloody justice (Edalat-e Bidadgar va Khoonriz in Persian) (Anonymous).

    Movahed, Mohammad Ali (2002), Dar-Havaye-Hagh-Va-Edalat (in the air of right and justice) (from the natural rights to human rights)

    Tehran: Karnameh.

    • Nahavandi, Hoshang (1972), The principles of Economy science, second edition, Tehran: supreme institute of accounting.

    Articles and Theses

    • Ashoori, Mohammad; Mirzaei, Asadullah (2012), "Criminal Law and Economical and Industrial Development", Criminal Law Doctrines Razavi University of Islamic Sciences, Number 4.
    • Aghaei Thogh, Moslem (2013), "Analysis of Economic Analysis of Law", Comparative Law Review, Volume 4, Number 2.
    • Babaei, Mohammad Ali;Ansari, Ismail (2014), "Economic Analysis of Crime Prevention", Academic Journal of Legal Studies of Shiraz University, Volume 6, Number 1.

    Badini, Hassan (2003), "Philosophical principles of economic attitude to law", The journal of Faculty of Law and Political Sciences, University of Tehran, Number 62.

    • Habiba, Saeid;Kalantari, Esmaeel (2017), "An Investigation of the Role of Intellectual Property Rights Policy in Technological Catch up in Developing Countries", Iranian Journal of Public Policy, Volume 3, Number 2.
    • Jafarzadeh, Mirghasem;Lajmorak, Hassan (2020), "Theoretical Analysis of Trademark Rights: Absolute or Conditional Exclusive Rights?"Private Law, Volume 17, Number 2.
    • Khaleghi, Abolfath (2007), "Working instead of going prison", Law and Political Science Quarterly Tarbiat Modares University, Number 3.
    • Khaleghi, Ali;Nouri Zeinal, Elmira (2020), "Protection of Defendant's Rights in the Criminal Procedure in light of Public choice Theory", Criminal Law and Criminology Studies University of Tehran, Volume 50, Number 1.
    • Sadeghi, Hossein (2009), "Criminal Protection of Trademarks", The Journal of Judicial Law Views, Number 48.
    • Salehi, Javad (2009), "Criminal Policy in Challenge with Copyright infringement", Adjudication, Number 56.
    • Salehi, Javad;Gholam Alipour, Ali (2010), "Protection of Copyright in Criminal Law", Doctrines of Razavi University of Islamic Sciences, Number 13.

     

    • Sadeghi, Mohsen (2006), "A Critical Research in Hans Kelsen's Thoughts", Journal of Faculty of Law and Political Sciences of Tehran University, Number 74.
    • ---------- (2014), "Infringement of Trademark Rights: Waivable or non-Waivable Crime?", Journal of Criminal Law and Criminology, Number 4.
    • ----------, Shamshiri, Sadegh (2011), "Criticism of General Policies of Article 44 of  Iranian Constitution (Privatization Law) from the perspective of the relationship between intellectual property and competition rights", Law and Politics Research Quarterly, yearThirteenth, Number 33.
    • Abdi, Abbas (2002), "Prison Punishment and the repeated crime", Iranian Journal of Sociology, Volume 4, Number 2.
    • Gholami, Hossein (2001), "criminology analysis of two criminal law institutions, probation and parole", The study of Law and Politics, Number

     

    • Gholami, Ali (2020), "Principles and effects of impact of Political Economy on Criminal Policy in the United States", Legal Research Quarterly, Number 91.
    • Mazlouman, Reza (1972), "What is criminal policy?", The Journal of People Rights, numbers 29 and 30.
    • Mehraram, Parham (2021), "Separation of law and Morality in Hans Kelsen's Theory of Obligation", Philosophical Meditations, University of Zanjan, Volume 11, Number 26.
    • Mehri, Hamid (2017), "The Prison and its effects on prisoners and criminals", annual conference of legal and judicial studies.
    • Nouri Zeinal, Elmira (2019), "The Role of Cost of Crime Estimation in Penalization of "Ta'zirat"; A Descriptive and normative Analysis", Criminal Law and Criminology Studies University of Tehran, Volume 49, Number 1.
    • Shahbazi, Hadi (2018), "Patent Infringement in United Kingdom and Iranian Law and Civil Liability Caused By It", Thesis of Master's Course in Document Law and Commercial Contracts, University of Judicial of Judicial Sciences and Administrative Services.
    • Mahzoun, Mahsa (2009), "Economic analysis of copyright and study of copyrighting in Iran law", M.Sc. thesis of economic law, Faculty of Law and Political Science of Alameh Tabatabai University.
    • Mohagheghi, Ali (2016), "Financial author rights violations in Iran and America", M.Sc. thesis of private law, Faculty of Law of Tehran University, (Alborz Campus).
    • Nasiri Moghadam, Najime (2007), "Economic Analysis of Industrial Property Law", Master's thesis of Intellectual Property Laws, Faculty of Law and Political Sciences, University of Tehran.
    • Nowrozi, Hossein (2007), "Globalization and development of intellectual property rights in the global economy (1970-2005)", Dissertation of the doctoral course of international relations, Faculty of Law and Political Sciences, University of Tehran.

    Pamphlets and Interviews

    Habiba, Saeed (2015), Pamphlet of industrial property rights 1, M.Sc degree of intellectual property rights, Faculty of Law and Political Science, University of Tehran.

    • Moazzami, Shahla (2020), Criminology pamphlet, PHD, Department of Criminal Law and Criminology, Faculty of Law and Political Science, University of Tehran.
    • An interview with Dr. Mahboub Afrasiab, Judicial deputy of chief of Tehran General and Revolutionary Courts, Supervisor of Valiasr courthouse, Special judge of intellectual property rights with 12 years of experience, The chief of Commission of the Intellectual Property Office of Patents, dated 2021/12/04 and 2022/11/28.
    • An interview with Dr. Hamid Bahremand, Faculty member of faculty of law and political science of Tehran University, dated 2022/11/29.
    • An Interview with Dr. Sajjad Barkhordari, Associate Professor, Faculty of Economics, University of Tehran, 2022/12/03.
    • An Interview with Dr. Touraj Taghizadeh, The Judge of branch 12 of Shahid Beheshti of Tehran General and Legal Courthouse, dated 2022/12/05.
    • An Interview with Dr. Mahmoud Mahdavi, Assistant Professor of Faculty of Law and Political Sciences of Tehran University, dated 2022/12/05.
    • An Interview with Dr. Ahmad Hemati Kalvani, The Judge of Branch 3 of Shahid Beheshti of Tehran General and Legal Courthouse, dated 2022/12/06.
    • An Interview with Dr. Hassan Lajem Orak, The investigator of branch 3 of Tehran District 26 Prosecutor's Office (special handling of industrial property crimes) dated 2022/12/06.

     

     

     

    • An Interview with Dr. Mohammad Sadegh Azmandian, General manager of Intellectual Property of department of Justice, dated 2022/12/11.
    • An Interview with Dr. Hassan Sobhani, Professor of the Faculty of Economics, Tehran University, dated 2022/12/11.

    Sites and Cases

     

    • Judicial decision making system: the condition for the realization of the offense of infringement of the patent owner's rights (jri.ac.ir) (Criminal case with the document number 9209970220400142 under the title of the condition for the realization of the offense of infringement of the patent owner's rights, dated 2015/02/10).
    • The Legal case under class number 9909980226300017, the branch three of general and legal court of Shahid Beheshti courthouse with case number 140168390010981865, dated 2022/10/30.
    • The case number 140068920006071486 of Branch 3 of investigation office of Tehran General and Revolutionary court of District 26 (medical crimes), The final decision of No. 140168390006568849, dated 2022/08/12.
    • The case number 9709982120200433 of Branch 1043 of Criminal Court of two judicial complexes of Tehran Shahid Qudosi courthouse, with the petition number 9709972191801078, dated 2018/10/23.
    • The average number of prisoners in Iran is higher than the global average / Payam Iran/ The Analytical news base (payameiran.com) The last view: 2023/01/19.

     

    English References

     

    - Becker, Gary S. “Crime and Punishment: An Economic Approach”. Journal of Political Economy, 76, 2(1968), 169-217. https://www.jstor.org/stable/1830482

    - Brand, Sam and Richard Price. The economic and social costs of crime. London: Home Office Research Study, 2000.

    - Cooter, Robert and Thomas Ulen. Law and Economics. 6th edition. Berkeley, Calif.: Berkeley Law Scholarship Repository, 2016.

    - Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code. 2021. last visited on: 2021/12/18. Available at: https://www.copyright.gov/title17/title17.pdf

    - Czabanski, Jacek. Estimates of cost of Crime; History, Methodologies, and Implications. Berlin; Heidelberg: Springer, 2008.

    - Ehrlich, Isaac. “Crime, Punishment, and the Market for Offences”. Journal of Economic Perspectives, 10, 1(1996), 43-67.

    - Jarrett, H. Marshall and Cameron G. Chandler. Prosecuting Intellectual Property Crimes. Fourth Edition. Washington: Office of Legal Education Executive Office for United States Attorneys, 2015.

    - Kaplow, Louis and Steven Shavell. Economic Analysis of Law. Harvard: Harvard Law School and National Bureau of Economic Research, 1999.

    - Kelsen, Hans. Pure Theory of Law. Union, N.J.: Lawbook Exchange, 1960.

    - Kirchgassner, Gebhard. Homo Oeconomicus, The Economic Model of Behaviour and Its Applications in Economics and Other Social Sciences. New York: Springer, 2008.

    - Masur, Jonathan and Christopher Buccafusco. “Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law”. University of Chicago Law School, 87, 2(2014), 275-334. Available at: https://southerncalifornialawreview.com/wp-content/uploads/2018/01/87_275.pdf

    - Menkel-Meadow, Carrie. “Restorative Justice: What is it and Does it Work?”. Georgetown University Law Center, Georgetown Law Faculty Publications and Other Works, 3(2007), 1-27. Available at: https://scholarship.law.georgetown.edu/facpub/583

    - Moore, Michael S. Placing Blame: A General Theory of Criminal Law. Oxford: Oxford University Press, 1997.

    - Posner, Richard. Economic Analysis of Law. New York: Aspen Publishers, 1986.

    - Roman, John and Graham Farrell. “Cost-Benefit Analysis for Crime Prevention: Opportunity Costs, Routine Savings and Crime Externalities”. Crime Prevention Studies, 14, (2002), 53-92. https://socialvalueuk.org/wp-content/uploads/2016/03/cba%20for%20crim%20prevention.pdf

    - Wechsler, Andrea. “Criminal Enforcement of Intellectual Property Law - An Economic Approach”. Max Planck Institute for Intellectual Property and Competition Law Research Paper, 11-05(2011), 1-28. Available at SSRN: https://ssrn.com/abstract=1775686

    - WIPO. “What is Intellectual Property?”. Available at: https://www.wipo.int/about-ip/en//

Journal of Legal Research
Volume 23, Issue 59
Autumn 2024
Pages 511-566