Features of investigating copyright and related right infringements
Date: November 05, 2003Source: Computer Crime Research Center
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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 [1].
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” [2]. 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 [3]. 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...
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