Worst case definition of “commercial scale”, here the TRIPS wording would be replaced by a definition of “indirect motivation of financial gain”. As pointed out, Luc Devigne precisely said in the last hearing that the definition of commercial scale should rest among the courts judges. However, criminal provisions are negotiated by the member states:
ARTICLE 2.14: CRIMINAL OFFENSES
1.35 Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale.
Willful copyright or related rights piracy on a commercial scale includes:
[(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and
(b) willful copyright or related rights infringements for purposes of commercial advantage or financial gain.]
Inciting, aiding
Inciting, aiding and abetting are still included in the criminal enforcement chapter:
[2.15]
[2. Inciting, Aiding and Abetting
The provisions of this section shall apply to [inciting,] aiding and abetting the offences referred to in Article 2.14.]]39
[…] ACTA official draft release unveils criminal enforcement revolution However, criminal provisions are negotiated by the member states: ARTICLE 2.14: CRIMINAL OFFENSES 1.35 Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. Willful copyright or related rights piracy on a commercial scale includes: [(a) significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain; and (b) willful copyright or related rights infringements for purposes of commercial advantage or financial gain.] […]