Methods of evidence collecting and assigning in cases of copyright and adjacent rights violation
Date: August 13, 2004Source: Computer Crime Research Center
By:
a) any action violating personal non-property rights of owners of copyright defined by article 14 of this law, and their property rights defined by article 15 of this law, if else is not provided in the articles 21-25 of this law;
b) piracy in the sphere of copyright -- publishing, representation, importation/exportation to/from the custom territory of Ukraine of counterfeit samples of production (including computer software), audio, video and broadcasting materials;
c) plagiarism -- giving publicity (publishing), in full or partially, to someone else’s production under the name of a person who is not the author of this work;
d) importation to the custom territory of Ukraine of samples of production (including computer software and data bases), audio, video and broadcasting materials without permission of copyright owners;
e) actions that create threat of copyright violation;
f) any actions to consciously circumvent technical copyright protection measures, in particular, reproduction, distribution, importation with the purpose of distribution and applying means for this circumventions;
g) forgery, modification or deletion of copyright/disclaimer information, in particular, in electronic form;
h) distribution, importation to the custom territory of Ukraine of production protected by copyright, with deleted or modified copyright/disclaimer (particularly, in electronic form) with the purpose of further distribution or public broadcasting
Administrative responsibility for copyright violation is provided by article 51-2 (violation of intellectual property rights) of the Administrative Code of Ukraine dated December 7, 1984 and article 345 (transition of goods through the customs border of Ukraine violating intellectual property rights) of the Customs Code of Ukraine dated July 11, 2002. The maximum penalty for such crimes is 200 tax exemptions fee along with the counterfeit production seizure.
Anyone who sells, rents or somehow illegally uses samples of works for commercial purposes, bears responsibility if:
- samples of works are counterfeit according to law;
- samples of works contain labels with improper information on manufacturers, place of manufacture and other information that can mislead the buyer;
- copyright sign put by the owner is destroyed or changed.
Law enforcement officer makes a report on administrative offence. If it is established during investigation that actions of the guilty bear characteristics of a criminal offence provided by article 176 of the Criminal Code of Ukraine, proceedings under administrative case are stopped and law enforcement instigate a criminal case.
Criminal responsibility for copyright violation is provided for by article 176 (copyright and adjacent rights violation) of the Criminal Code of Ukraine dated April 5, 2001.
Article 176-2 of the Criminal Code establishes a series of overburdening features for criminal responsibility if the crime was committed:
- repeatedly;
- by a conspiracy group;
- or these acts caused material losses, particularly grand damage.
Article 176 of the Criminal Code of Ukraine stipulates that caused material damage is considered grand if it is 250, extra grand if it is 600 times greater than tax exempt.
Evidence on the case is information on facts defined and provided by law, used by court to establish the presence or absence of circumstances that prove requirements and claims of the parties, and other circumstances substantial for correct legal investigation. In case of civil proceedings this information (according to law) can be obtained in the following ways:
1) explanations of parties and third persons;
2) testimonial evidences;
3) written and material evidence;
4) audio and video records;
5) conclusions of experts.
Written or verbal explanations given by parties are to be checked and evaluated along with the other evidence on the case. These explanations are not enough for complex all-round legal investigation and passing well-grounded judgement.
Sometimes testimonial evidences serve as main proofs. While evaluating testimonial evidences the court may take into account the character of relationship between witnesses and the litigants (relatives, close friends, subordinates, accidental passers-by) as the factor of “non-objectivity” of witnesses or possible pressure on them and also circumstances where the person has become the witness. It appears that testimonials of accidental passers-by who became eye witnesses of the perpetration find a lot more credence of the court.
Written evidences are acts, contracts, references, business correspondence, other digital documents and materials including those received through facsimile, electronic or other kind of communication, or other ways that allow to establish authenticity of the document, that contain data on various facts substantial for the case, that are of importance to legal investigation and solution of the case. Only a document – information fixed on a material bearer with requisites allowing to identify it – can be considered as written evidence. Usual printout of the webpage from the Internet is not a document as it has no features of a document. The printed webpage is considered a document as it has a special assurance note. Other references received from ISP or network search services can also be written evidences.
Evidences related to computer crime cases can be easily changed either due to mistakes during extracting of them or the very examination. Production of such evidences in the judicial procedure demands special skills and proper training.
Article 204 of the Criminal Code of Ukraine stipulates main requirements to experts’ conclusion:
- date, time and place of forensic examination;
- grounds for forensic examination;
- official who assigned forensic examination;
- data on expert agency and also full name of the expert, his education, speciality, academic degree, work status;
- notification that the expert was warned of responsibility for wittingly giving false conclusion;
- questions put to the expert;
- objects examined and materials provided for forensic examination;
- data on people who were present during forensic examination;
- contents and results of forensic examination, specifying applied techniques;
- conclusions and grounds on questions put to the expert.
Following are the documents, obtained by law enforcement during checks carried out proprio motu or on information from owners of copyrights; these belong to evidences of violations of copyrights:
- checking protocol;
- protocol of examination of the computer and the software installed on it;
- protocol of examination of the material bearer where the software was installed from;
- conclusions of the expert who carried out examination of the seized computer and material bearers with the software;
- invoice or cash-memo for the purchased computer;
- warranty document for the purchased computer;
- explanations of the computer’s seller and buyer;
- copies of registration certificate of a juridical person (statute and agreement);
- work status of the employees of the organization who are involved in sales of computers and software;
- advertisements and prices evidencing that the guilty person was carrying out entrepreneurial business;
- other documents related to illegal sales or distribution of software.
Other objects that by their appearance, properties, location or other features may be the means establishing facts, or be substantial for legal investigation or solution of the case belong to the category of material evidences. These may be hard disks, floppies, CD-ROMs, CD-Rs, CD-RWs, other carriers of information.
Counterfeit computers or carriers where software was illegally installed, revealed during the law enforcement checks are subjects to examination. Therein, according to the requirements stipulated by law, a protocol of examination is drawn up. These objects may be seized for investigation purposes.
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