Andrey Belousov
Crime-research.org
Criminalistics Characteristic of Crimes Connected to Copyrights
The criminalistics characteristic of criminal identity demands its research on the stage of common data and on the stage of analysis statistics and criminological data on perpetrator. [1].
Formation of a bank of typical models, differed on offenders’ categories and studying of the general features of these people, allows to make process of detection the circle of suspected persons easier. So, it will allow to search criminals more effectively.
Studying of foreign and domestic judicial-investigatory practice on cases about copyrights infringement, as well as materials of the criminal cases, has revealed the following data describing the accused (suspected) persons. In overwhelming majority of cases (80 %) it is men in the age of 18 till 30 years. Older persons, as a rule, participate in criminal groups.
The specified persons, are not registered in psychoneurology and the narcological clinics, and were not brought to justice before. However, 13 % of them were made answerable for: similar crimes - 7%, others – for various offences (theft, hooliganism).
About 80 % of the specified persons had no permanent place of employment at the moment of criminal case investigation^; in this connection half from them made a contract with the concrete person for execution phase on sale and safe of counterfeit computer compact discs. In a course of investigation, answering question whether they knew, that sold production is counterfeit, 60 % said they didn’t, the others thought that sale of this production is not penal act, and can entail just managerial responsibility
62 % of persons are local residents, i.e. they have registration in cities and suburb where perpetrated illegal action. It speaks that places of selling of counterfeit production, as a rule, are city shops in regional centers.
Taking into account, that sale of computer CD demands basic knowledge in the field of computers (for example, if necessary to consult the buyer), we put attention to an education of the specified persons. Results of research have shown that more than 62 % sellers of counterfeit production have higher or incomplete higher education or study in higher educational institutions on technical specialities^; about 20 % have a technical specialized secondary education.
As a rule, these persons have positive reference from place of employment and studies: for example, pupils, students, according to the showed information, have no arrears, nor censures from the part of administration. In the majority sellers of the counterfeit production, got fixed up in a job according to verbal understanding, without labour contract, and were engaged in sale during vacation. It is necessary to note, that in many cases, the structure of criminal group includes relatives: the wife or parents - pensioners, brother, sister, minors, invalids.
From the criminalistics point of view, the objective data on personal-social characteristics of the offenders are extremely important, especially for preliminary investigation, because objective information can orientate investigators towards establishment of character, forms of relations between the various subjects of illegal activity. Judicial investigation experience testifies that the circle of suspected persons (owners of the goods, sellers, security guards, etc.) is formed from familiar people (according to their place of employment, studies, residence, and joint leisure).
Usually, prospective offender learns about opportunity to earn money by sale of counterfeit production from personal contact with those who carries out this activity during certain time without any sanctions of supervising bodies. The choice of a source of counterfeit production and point-of-sale also is not casual.
According to experience of the predecessors, engaged the criminal activity, from beginning the criminals get counterfeit production in small amounts in the wholesale markets, warehouses (50-100 pieces) and at once sell it at retail in similar shops, and in some cases - in the same places where they get it.
One of versions of purchase "piracy" compact discs is purchase at unfamiliar visitors, and sequences have both single, and repeated (numerous) character. For example, the supplier of counterfeit production called himself only by name, daily brought the goods on the market to the beginning of the working day, and then came personally or his driver took sales proceeds away. After two months, having learned about carrying out of control purchase, he did not come personally any more in the market^; he has stopped delivery of counterfeit production, and hasn’t demand money for the sale of last consignment of goods, at all. Interrogated seller of counterfeit production has in detail described appearance of the boss, but his search has not crowned success, as, however, and on the majority of other cases.
In investigatory practice there are cases when seller purchased counterfeit production by wholesale at strangers, then stored its long time in a warehouse, which was rented near to a point-of-sale terminal. Sale of counterfeit production was realized in a warehouse, and in the market. The persons, who got production in the market (sometimes large sets) often, were considered as patron and then were invited to purchase production in a warehouse on lower prices.
Generally, sellers of counterfeit production have certificates on the state registration as businessman (natural person). However, they often get counterfeit production at unknown wholesale sellers, and, don’t interest in their persons and whether have they a trading license. Accordingly, anybody does not conclude a treaty on computer compact discs sale.
As to time of illegal activity it depends on the characteristic of concrete offender (it is necessary to take into account criminal experience, criminal relations, financial well-being, etc.) and in this connection changes from 1 - 3 months till several years. Regularity of sale is in the certain dependence on a role of the subject: whether he is the supplier, the keeper, seller, etc.
Usually there is labour contract or verbal understanding between sellers and boss. Duties of the seller include sale, safe of goods, delivery, cashing at the end of each working day. As a rule, seller takes readings of a cash register, brings them in the cashbook. Thus, articles of trade are not stipulated in the contract^; so, in practice, boss delivers VCR cassettes, counterfeit computer compact discs to the seller alongside with other goods.
At the same time, it is the extremely important to pay attention of investigators and public prosecutors who are carrying out supervision of these crimes investigation to the following circumstance. Criminal groups produce counterfeit production. There are cases of purchase a piracy VCR cassette in natural packing with certain hologram, trade mark, etc. Frequently you will not distinguish such counterfeit production from original production visually, it requires specialized expert examination.
Pirates get original polygraphic boxes for VCR cassette at legal owners or make high-quality polygraphy, not conceding to the original. Placing the counterfeit cassette in original packing, "pirate" masks the activity and complicates disclosure. In the same way “pirate” get counterfeit trade mark of the concrete legal owner rather cheaply.
There is also other, more veiled way of copyrights infringement. It is duplicating, distributions and illegal sale of counterfeit production.
Store of criminal experience on sale of counterfeit production, and also other circumstances both objective, and subjective promote formation of criminal group for illegal activity on preliminary arrangement. For the majority of such groups the relationship, close acquaintance, and mercenary interest are characteristic^; thus certain knowledge the field of computer techniques is necessary. Personal characteristics of “pirates group” do not differ from the "pirates-singles", many have the higher and specialized secondary education, but temporarily they do not work on a speciality, live in city district, they are characterized well on a residence, and are not registered in Tax Bodies, do not pay taxes.
Sale of the counterfeit production by criminal group is carried out with the help of commercial shops of small business or city markets.
At reception of the written statement for copyrights infringement law enforcement make its check. It is necessary to be convinced that statement is written by legal owner, i.e. the person possessing the rights which are infringed. Statement should contain information about the form of this infringement, and what damage is caused by it.
Most often, author of product brings statement to law enforcement bodies. The inspector should be convinced, that declarant is representative of the organization or the person, whose rights are broken, and to receive confirmation of his (its) authorship. As a rule, the organization always keeps these documents in order and is ready to show them. The author of product (if it is registered or published earlier), has confirmation: certificate, author's copy. If product was not published confirming the right the victim can present the author's contract, draft copies of jobs, other materials.
In other cases, persons or the organizations representing legal owner’s rights bring statement to law enforcement bodies. Now there is a plenty of the various public, commercial organizations putting task "to fight video, audio, computer pirates". But it is necessary to understand, that only mention in the statute such purpose does not allow to represent someone's concrete interests in each concrete case as the initiator of prosecution in the criminal order can be only the legal owner.
There are some features of verification, on which it is necessary to stop more in detail.
Almost always it is necessary to commit verifying purchases, surveys of occurrence location and the objects having attributes of counterfeit products. Often check begins with them. The given actions should be committed and draw up in strict conformity with requirements.
In a course of the verifying purchase, law enforcements should fix all circumstances, it is very important to check waybills, receipts, license agreements, contracts, etc.
Special difficulty is connected to survey of a plenty of withdrawn objects. If each of them does not look round at the scene, it is necessary to pack and seal carefully all withdrawn products and to certify this fact by signatures of participants of survey, and then experts should make report. Integrity of packing of objects at the moment of the beginning of carrying out of their additional survey is fixed in the report at the subsequent survey.
In a course of verification the inspector may receive explanations: from the applicant, from the persons who have allowed infringement of his rights, etc.
At interrogation of the person engaged in distribution of counterfeit production, it is necessary to find out:
- How long time is he engaged in trade of audiocassettes, VCR cassettes, computer disks or other production^; whether has conceive sold production?
- Where does he get the goods^; how does he execute records on receipt and sale^; how does he get the money for the work, where does he store production?
- What is known about an origin of the goods?
- Is he owner or seller?
- Who is the owner of the goods?
- What documents on the goods does he have, where are they kept?
- What is an average proceeds from sales for a day? What days does he sell usually? What are proceeds from sales for day of detention (for the day before detention)?
- Did he understand, that goods are counterfeit, that the sake is illegal?
- Does he know how the license product looks, how much does it cost?
- What does he know about consumer properties of the goods?
- Does he guarantee quality of the goods?
- Where does he usually sell goods, what places in addition to disclosed?
- Has he earlier been detained for similar offences? Has he heard about detention of other persons for such infringement?
- How much and what goods he had in the beginning of trading day what price, how much sold, where is the proceeds, how was a verifying purchase, whether he has any remarks to the made report?
- How long time is he engaged in business^; what kinds of activity?
- Is he registered as the businessman^; where, when, can he confirm it?
- When did he submit the income statement last time and where, what taxes did he pay?
It is obvious, that urgent interrogation made directly after verifying purchase and survey of withdrawn objects can give greater effect.
Information on copyrights can be obtained on demand from the organizations conducting registration of legal owners. Besides it is possible to address to the primary source that is the organization, whose properties are, for example, in credits of videofilm.
For definition of size and character of the caused damage it is necessary to request corresponding documents, including the information on cost of a similar product in other specialized enterprises. Average cost of a product will allow the inspector to determine conformity of the declared claim.
By the moment of decision-making on initiation of criminal case, it is necessary to have information on the following questions:
- Whose rights are broken, is there statement from legal owners or their representatives^;
- What is evidence of the applicant’s copyrights (registration in the Scientific research institute of intellectual property, registration in other organizations, including international^; inquiries on registration, certificates, licenses, other documents)^;
- What is the way of infringement?
- Use of the right (reproduction, performance, distribution, etc.)^;
- Plagiarism^;
- What is damage, what it consists of^;
- Are there are qualifying attributes of group or organized.
Collected information on the questions, will allow to make the proved decision on criminal case initiation.
The search in residence or storage of production is made with the purpose of detection other sets of counterfeit production, revealing and withdrawal of the various relevant documentation (contracts, commodity - transport waybills, documents on sale).
Survey of withdrawn production with the expert is made for fixing its conformity to the typical samples distributed by the legal owner.
Examination for revealing attributes of counterfeit^; a recognition of withdrawn production as material evidences.
Interrogation of the person for finding-out an origin of withdrawn production.
Interrogation of witnesses among neighbors on point-of-sale, relatives, familiars on the important circumstances.
Interrogation of victim.
Besides it is necessary to request the information on cost of similar programs in the specialized shops and to ascertain legal owners on withdrawn production^; it can be made by request information from World Intellectual Property Organization (WIPO).
In summary it is necessary to emphasize, law enforcement commit operational search actions on this criminal cases, with the purpose of an ascertainment the ways of receipt the production^; places of its manufacture^; criminal relations^; studying of the offenders, including: demand an information from the centers of employment^; organs of government as for registration of offender as businessman^; ascertainment of legal owners, etc.
The information collected in such way, will allow to formulate accusation and to solve the problem on election of a preventive punishment
1. V. Golubev. Criminalistics Characteristic of Cybercrimes’ Committers. http://www.crime-research.org/eng/library/Golubev_mar.html
2. Scientific comment of Ukraine’s Criminal Code /under edition of Honoured lawyer, the candidate of Law M. Melnik, candidate of Law M. Khavronjuk/. - K.: “Kannon”, “A.C.K.”.- 2001.
3. Ukraine’s Code of Criminal Procedure - K., 2001
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