Features of investigating copyright and related right infringements
The legal protection of copyrights and related rights in Ukraine’s legislation is a new theme for its theory and practice. Copying, spread and marketing intellectual property objects and, particularly, copyright ones have formed a high revenue industry, which plays an important role in assuring the economic progress. According to the statistics, delinquent elements all over the world very quickly realized it. Every fourth sound recording carrier is counterfeit.
The problem of counteracting crimes against intellectual property has become very critical now. There are no practical recommendations on investigating copyright and related right infringements. In such a situation, the main thing is to correctly combine interests of the author from the standpoint of sufficient remuneration with those of the whole society .
The fight against copyright and related right infringements is a laborious and highly professional business of officers from law enforcement bodies. M. Melnikov, Y. Kazakov, O. Dvorjankina and others devoted their works to the piracy problems and investigation of copyright and related right crimes. Y. Kazakov writes: “Those who have exclusive copyrights can demand from lawbreakers to acknowledge their rights, restore the status, repair losses including the lost benefits or claim damages inflicted by violating copyrights” . These demands are satisfied on the base of court decisions.
Features of investigating copyright and related right crimes are determined by the specificity of using, obtaining and storing counterfeit products. A. Dvorjankin writes that one of the most effective ways of revealing and documenting an illegal copying and spread of counterfeit products are a checking purchase, further withdrawal and expert examination . The complex of operative-search actions on establishing the storage of counterfeit products, their documentation, hiding places and so on precedes the further inquest actions.
The experts in both hardware and software designed to reproduce and copy copyright and related right objects should help to search the place of crime commitment. The searching group should be equipped with the special facility to make selective examination of detected products.
The technical inventory bureau or other competitive bodies should be asked beforehand for the characteristics of the premises to be searched. It will allow supposing the availability and location of possible hiding places. Besides, operative officers guarding the place of crime commitment must be ready for both different situations of counteraction (for example, excited purchasers at the market and their wish to oppose law enforcement procedures) and possible emergence of the next counterfeit product buyer.
When knowing the approximate mechanism of the specific copyright and related right infringement and having information obtained during the operative-search actions, the inspector and experts focus on finding floppies and disks with computer programs, as well as documentation for these products. Besides, they should detect and withdraw documents of this office activity: official blanks, waybills, receipts, rough notes, client registers and so on. Every thing is examined and fixed in the record. Printing products to be pasted to the disks or cassettes, marking and packing means are worth looking for as well. Special attention should be paid to devices that can be used to copy counterfeit products and produce holography. The course of examination should be video-recorded or photographed.
The special difficulty consists in that sometimes officers find many documents, counterfeit products and other materials, which are not meaningful for investigating a criminal case.
The inspector should indicate all found documents in the incident place examination record and withdraw them. The repeated examination of withdrawn documents in the Office of Public Prosecutor can reveal those connected with the case. According to the inspector’s decision, the others are subject to be returned.
If there are some unauthorized persons at the search moment in the room, it is necessary to reflect in the record who is present in the room and for what purpose. After that, these people must be isolated from each other and taken explanations.
When searching the inspector should pay attention and fix every meaningful detail that can help obtaining information on circumstances of committing a crime, its mechanism, persons involved, their connections with other law-breakers, evidences proving the existence of a criminal group and the degree of its organization. Copyright and related right violations are often connected with tax, economic and computer information crimes. Evidences and proofs of these offences can be revealed and fixed during the examination, its effectiveness without appropriate experts being considerably low.
All details and the course of investigation should be reflected in the record: who, when and where makes an inquiry action and draws up a report^; who is present and takes part in it^; whether participators are explained their rights and duties^; what technical means are used and by whom. It also should logically describe actions of the inspector and experts during the examination, found objects, their form and state at the moment of search.
The report should contain data on objects, documents and place of their detection, results of software carrier examination (disks, floppies and Winchesters), use of the corresponding hardware (computer, DVD player and so on) and way of packing these things. They are packed according to the experts’ recommendations and in such a way that allows preserving them and stored data and preventing from an unauthorized access. The withdrawn things are supplied with explanatory inscriptions whereas the pack is sealed up and countersigned by the investigation participators and attesting witnesses. Investigation photographs and videotape recording should be filed to the search report as well.
The above recommendations can and must be used in full measure when preparing and making such inquest actions as seizure and search.
Only after instituting criminal proceedings, the search is held at the supposed places of manufacturing and storing counterfeit products, home and job of the suspected or accused person. However, the other places and people can be also searched.
When seizing and searching, the witnesses chosen from impartial persons should be present. If necessary, the experts can be enlisted.
The search can be held on the grounds of information on counterfeit products and copying, packing, producing, label-printing technique to be found at the arrested person’s place or warehouse. Besides, the search should aim at obtaining data, for example, on counterfeit product suppliers and consumers. When preparing for the search it is advisable to consult the expert on distinctive features of sought for copying, producing, label-printing technique and measures to be taken to preserve detected technique and information stored in its memory. It is necessary to specify experts and technique to be used at the search and foresee ways of preventing the destruction of information.
During the search, all the equipment used to copy licensed products and make forged disk labels, as well as originals should be fixed in the report.
Documents connected with copyright and related right infringements are withdrawn to prove the fact that the checked person has been engaged in handling unlicensed products at the specific place for a long time. The seized documents can also confirm that copyrights and related rights belong to those or other persons. Sometimes the claimant notes in his testimony that he applied to those or other organizations violating his copyrights and related rights. The injured party at times uses services of the private detective to reveal persons violating his rights. In these cases, the inspector can withdraw such applications and materials from the applicant, law-breaker or private detective to use them in the interests of prosecution.
The searching course and results are fixed in the appropriate report. It should meet general legislative requirements (Ukraine’s CPC Articles 66,85, 183, 184) and reflect important circumstances:
1) What things were given voluntarily and withdrawn in a compulsory manner^;
2) What things were found and where^;
3) If there were some evidences of disguised objects^;
4) Whether there were some attempts to destroy objects or counteract the inspector on the part of the searched person.
All the withdrawn things are described in the report by identifying the object and determining the quantity, weight, dimensions and other individual features. Some notes of the seized object package and fixation should be made as well. The documents and objects withdrawn at the search and seizure must be sealed up at spot whereas any applications and claims as to the held search and seizure should be registered in the report. These can be remarks, applications of the searched persons and other participants of investigation. The report copy should be handed to the searched person. Drawing up a report is an important part of this investigation because the carelessness can result in bringing to nothing all the efforts of searching and withdrawing objects that mean a lot for the case.
The specific character of such inquest actions as search and seizure connected with the cases of copyright and related right infringements can be manifested as follows:
1. A great umber of counterfeit products can be generally found in the searched room. In this case, it will take much time to examine all them and draw up a report. However, a special equipment will be needed so the examination has to be delayed and the unauthorized persons should be prevented from penetrating there, appropriate notes being made in the report: “The search and/or examination has been delayed …” or “The search and/or examination has been resumed…”^;
2. When searching (seizing), many small things can be found (withdrawn): forged holograms, excise marks, various labels, trade signs and so on. These objects should be packed into separate boxes by “assortment”, sealed up and countersigned. The search person and expert can help to describe them later on more narrowly.
3. It is advisable to photograph, videotape record or shoot the searching process to obtain the general view of the room (locality), as well as actions fulfilled at that time and connected with detecting and disclosing hiding places, fixing particular objects and searched person’s behavior. All this intensifies the evidentiary force of search and seizure.
Since the inspector has no special knowledge required to solve some problems connected with violating intellectual property rights, he should set the following expert examinations:
- Technical (for documents)^;
Ukraine’s Law Science Academy based Intellectual Property Researching Institute can make the complex expert examination.
Evidences of counterfeit products are as follows:
- Lack of printing pack^;
- Examined printing pack has a design different from original one^;
- Forged/copied printing pack^;
- Lack of original protecting label^;
- Availability of forged or unoriginal hologram on the printing pack or cassette^;
- Indication of invalid copyright owner on the printing pack^;
- Lack of copyright and related right protecting element on the pack^;
- Lack of correspondence with the original form and way of packing^;
- Lack of correspondence with the original product^;
- Lack of special stamping on the printing pack^;
- Availability of two or more films on the cassette^;
- Other features to be found at the examination of the specific object.
When examining computer disks with electronic computer software, the experts use the following criteria:
- Availability of high quality image on the non-working surface of the disk that is peculiar only to the licensed products^;
- Presence of the manufacturer’s trade mark on the non-working surface^;
- Availability of the standard cardboard pack with qualitative printing and forgery protecting hologram or micro-seal^;
- Every disk has no more then one licensed program.
If the program is a commercial version, there is no possibility to record it on the disk with another author’s one and accompany it with the user’s manual or licensed agreement.
The technical expert examination fixes the availability or lack of counterfeit evidences that are not obvious and require special knowledge, appropriate criminalistical equipment or comparative study to be revealed. Thus, establishing the difference between the counterfeit printing package and the original one in design and way of manufacturing, as well as detecting the counterfeit protecting label, hologram or their nonconformity to the original ones give evidences of the examined product forgery.
The same expert examination can reveal information stored in the delinquent person’s withdrawn hardware databases and used to make appropriate copies of packages and labels.
The tracing expert examination estimates the possibility of specific equipment to manufacture concrete products. For example, it fixes if the scanner was used to scan printing trades or the copying machine was exploited to make images for the package, label and so on. When withdrawing samples of original packages and labels, the expert should clear up whether they were used to make appropriate copies. If the copying hardware was withdrawn, the same trassological expert examination can be made. In this case, the expert should find out whether this equipment was used to make copies of the supposed violator’s withdrawn products.
The investigation objectives determine problems to be solved by the expert. The inspector should consult the expert when some difficulties occur.
The merchandizing expert examination can be made to judge the caused damage (Ukraine’s Criminal Code Article 176).
In this case, the expert should estimate the copyright owner’s damage. Since Ukraine’s CC Article 176 does not specify “great damage”, the inspector can do it in accordance with retail or wholesale prices.
The merchandizing expert examination can estimate the price of the specific product if there are some doubts as to the copyright owner declared sum.
The commodity expert offices or corresponding experts from firms engaged in selling and promoting the same products can make this examination.
If the knowledge in different fields is required to resolve some inquest problems, the inspector decides to set commission expert examination enlisting a group of experts or some expert offices and establishing their precedence.
As a rule, the civil suit connected with the copyright and related right infringements can be filed during the preliminary investigation. It is clear because the violator’s actions cause great loss to the copyright owner. The attachment allows compensating this damage to some extent. Moreover, according to the judgment and at the copyright owner request, the counterfeit copies can be given to him to compensate inflicted damage, i.e. enforce the civil action.
The inspector makes an appropriate decision to impose the attachment. This document should be properly substantiated. It is especially important because the question is about considerable material values.
The inspector draws up a report on conducting the attachment with the following indications: who has conducted it, where and what persons were present^; what property is regarded as attached^; whether it is seized or not. The report should contain notes on the further fate of property, its new keeper.
In such a way the inspector fulfils the law requirements concerning the compensation of crime inflicted material damages.
When charging somebody with committing this category crime, it is recommended to enumerate the general number of counterfeit carriers in the decision to institute criminal proceedings (for example: 1000 computer disks). In addition, the decision should indicate persons possessing copyrights or related rights to counterfeit copies and an extent of damage as well. Names of counterfeit products are recommended to transcribe in Russian. In this case, there will be no problems with their translation because all products have generally accepted Russian designations (ex. Microsoft).
The decision connected with instituting criminal proceedings should indicate a way of violating copyrights and related rights (use or misappropriation).
In accordance with Ukraine’s CC Article 176, inflicted damage can be judge in the following way. The decision to institute criminal proceedings indicates the sum declared by the victim, its validity being checked during the investigation and assumed as a basis.
Sometimes the inspector makes a mistake when he mixes up “copyright” with “related right” or uses them together in the decision to institute criminal proceedings. These terms are not identical and mean various phenomena. They should be indicated together when the question is about their simultaneous violation. For example, the same person distributes counterfeit compact disks with counterfeit software.
As a rule, the wording of qualificatory elements provided by Part II, Ukraine’s CC Article 176, (organized group, recurrence, group in agreement) presents no difficulty for the inspector because they are typical for our Criminal Code and their characteristics and description do not differ from those in other corpus delict. Persons illegally copying programs, phonograms, films and making packages, labels for counterfeit products, as well as those distributing them will be viewed as co-perpetrators because their actions present an objective side of a crime. The accomplices can be persons giving their transport, commercial place, technical means and equipment for accounting to commit such crimes unless the organized group operation with shared duties and single criminal aim is proven.
The most effective way of protecting copyrights and related rights is to commence prosecution. It is a criminal procedure that makes it possible for the copyright owner to punish a concrete violator of his rights. The condemnation of the copyright and related right breaker allows the copyright owner to compensate inflicted damage to some extent through a civil suit. It is of no small account that the examples of instituting criminal proceedings against “pirates” are an effective and obvious anti-propaganda of this criminal business. Therefore, the development of tactical features for particular inquest actions, as well as procedures of investigating copyright and related right crimes is of a great importance for law enforcement bodies to counteract the piracy more effectively.
1. V. Melnikov Piracy as a copyright and related right crime: Problem review // Ukraine’s Law, 2003. - ¹4. – P.72.
2. Y. Kazakov Protection of intellectual property. – Ì.: “Mastership”, 2002. – P.10.
3. O. Dvorjankin Protection of copyrights and related rights. Liability for their violation. Criminal-legal aspect. – M.: “The entire world”, 2002. – P.129.
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