Criminal law tends to be conservative. Most lawyers share an elitist conception that the legislator shouldn’t unbalance the inner beauty of the inherited statutory law and that popular opinion has to be shielded from criminal law. Otherwise the welfare council leviathan would invent and punish all sorts of crimes to satisfy tabloid media. ACTA negotiators of course seem totally unbound by conservative caution, free to
mess trade with our criminal law:
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.36 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.37]
37 For purposes of this Section, financial gain includes the receipt or expectation of receipt of anything of value.
There goes the beauty. ACTA negotiators propose a legal ragout. Now, of course these provisions are not news to us. In the current version of the stalled proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights, or short IPRED2 you find similar legal definitions, and we have seen all this before in the debate. But there it was political decision making and democratic consensus (or lack thereof in the Council), here trade administrations negotiate.
The term “wilful” is of course derived from TRIPS, the first time a trade related instrument intervened in criminal law to confirm the status quo in penal law. It is important to understand that de minimis has a different meaning in trade than law, meaning an exemption for minor stuff, so I should better say we find ockham’s razor in action:
ARTICLE 61 TRIPS
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.
Ha! “commercial scale”, yes, it is debated on and on.
So let’s simplify the ACTA proposal:
[(a) significant willful copyright or related rights infringements that have no
direct or indirectmotivation of financial gain; and
(b) willful copyright or related rights infringements for whatever purposes
of commercial advantage or financial gain.37]
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 and infringements on a
commercialsignificant scale for whatever purpose or motivation.
[EU] harmonisation of criminal penalties can only be justified in relation to acts fulfilling the following elements cumulatively:
– Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
– Commercial activity with an intention to earn a profit.
– Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.