Features of investigating copyright and related right infringements
Date: November 05, 2003Source: Computer Crime Research Center
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... as follows:
Next1. 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 When searching (seizing), many small things can be found (withdrawn): forged holograms, excise marks, various labels, trade signs and so on.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);
- Tracing;
- Merchandizing.
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...
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