More Monopoly Madness: UK Criminalizes The Copying Of Registered Designs

from the exactly-wrong dept

One of the reasons that the Anti-Counterfeiting Trade Agreement (ACTA) was opposed and defeated in 2012 was that it included an attempt to require criminal sanctions for "willful trademark counterfeiting or copyright or related rights piracy on a commercial scale" (pdf), where "on a commercial scale" was so loosely defined that it risked applying to even trivial infractions. This is part of a continuing push around the world to bring in harsher penalties for infringements of intellectual monopolies, particularly in the realm of copyright.

It seems that even the more obscure domains are affected: the Comparative Patent Remedies blog has a post about new legislation in the UK that criminalizes the copying of registered designs. Written by Professor Sarah Burstein of the University of Oklahoma College of Law, the post is highly critical of the move, and takes apart the claimed reasons for bringing in this new law. In particular, she demolishes the "parity" argument -- that criminal penalties are available for copyright infringement, and so they should be for registered design infringement too. As Burstein points out:

Different IP rights are supposed to protect different things for different reasons; therefore, it is not at all unfair or illogical to provide for different remedies. The parity argument also appears to assume that criminal sanctions for copyright and trademark infringement are appropriate and well-justified -- something that is by no means clearly established.

After addressing the other supposed justifications for criminalization, Burstein concludes as follows:

overall, the addition of these new criminal sanctions to UK law appears to be an ill-advised and unfortunate development. As many opponents (who included UK companies, IP practitioners and IP professors) noted, there is a significant risk that these sanctions will chill legitimate design innovation.

In other words, extreme measures supposedly brought in to support the design industry and its creativity may end up damaging it.

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Filed Under: acta, commercial scale, copying, registered designs, trademark, uk

How ACTA Turns Private, Non-Commercial File Sharing Into 'Commercial Scale' Criminal Infringement

from the this-is-not-good dept

We've already discussed some of the problems of the "near-finalized" draft of ACTA, but the deeper people dig into the agreement, the worse it gets. We had noted, in our original post, that the definition of "commercial scale" matters a lot, and Glyn Moody points us to an analysis that shows how the ACTA negotiators cleverly scaled back their definition of "commercial scale," to make it both vague and incredibly broad. The current text in ACTA reads:

ACTA 2.14.1: "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. [ACTA footnote 9]

For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage."

"Carried out as commercial activities for direct or indirect economic or commercial advantage." Could you be any more inclusive than that? We've recently discussed how the borderline between commercial and non-commercial use can sometimes be very difficult to distinguish. Under ACTA, it appears that when in doubt, it's commercial scale.

Of course, what's really troubling here is that the EU negotiators had already promised that there would be no definition of "commercial scale." Yet, there is... and it's a lot worse than what the EU Parliament had already determined "commercial scale" to cover. The analysis linked above, first looks at the Max Planck Institute's analysis of "commercial scale" infringement, where it notes that just saying "commercial scale" "fails to provide for an appropriate and sufficiently precise definition of the elements of a crime" under the current laws of the EU. Instead, it says such actions can only qualify as a crime if the following conditions are met:

• 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.

Note that none of that is found within the ACTA definition. The report also highlights the EU Parliament's own definition of commercial scale, which has important caveats not found in ACTA:

"infringements on a commercial scale" means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposes

Notice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on "commercial scale" infringement, by subtly changing (mostly via omission) the definition of "commercial scale," ACTA now covers an awful lot that most people would not, in fact, consider to be "commercial scale." We'll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.

Filed Under: acta, commercial scale, criminal, definitions

Could Cybercrime Treaty Already Push Through Some Of The Worst Of ACTA?

from the international-obligations dept

One of the important aspect of the leaked copy of the ACTA draft a little while back was that it also included what each of the different parties was pushing for in terms of language choices. This part of the draft was conveniently missing from the "official" draft that was released recently. But, if you looked through the different changes being pushed for by different countries, you quickly realized that definitions mean everything. The different wording seemed to only differ slightly, but depending on how you defined different terms, the actual meaning could be night and day. And, indeed, supporters of ACTA have been working overtime to make reading the draft seem innocuous, while making sure that the definitions make ACTA much more powerful.

Among the concerns is how "criminal copyright infringement" is defined -- specifically, what counts as "commercial scale." In ACTA, there's been an attempt to define commercial scale as broadly as possible, including copying for personal use.

Richard points us to some news down in Australia, where there's some concern that Australia's recent decision to sign on to a European cybercrime treaty, could force it to define criminal copyright infringement extremely broadly, along the lines of ACTA -- effectively getting that part of ACTA agreed to with or without ACTA. In other words, as plenty of folks interested in this stuff have been focused on ACTA, was the entertainment industry able to back door this really bad aspect of ACTA into many countries via the Cybercrime treaty already?

Filed Under: acta, australia, commercial scale, copyright, criminal copyright, cybercrime treaty