Making IP infringement a crime

Ingrid Marson ZDNet.co.uk

Published: 01 Aug 2005 17:30 BST

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FSF Europe is also worried about SCO using the directive to its advantage. Joachim Jakobs from FSF Europe says that not only could companies face being tried in a criminal court, but SCO could also be allowed to join the criminal investigation — the directive calls for "Joint Investigation Teams", where the holder of the IP rights can assist the criminal investigation.

At present, some open source and proprietary software products are covered by IP indemnification policies, which cover products if they are found to infringe a third parties IP. These policies would not cover companies against criminal action, according to Penfold from DLA Piper. "If an infringement is a crime then the infringer is clearly liable to be found guilty of a criminal offence if prosecuted," he says. "An indemnity covers the monetary loss a party sustains due to a breach of contract — it would not cover criminal conviction."

File sharers
As the directive only covers IP infringements on a "commercial scale", file sharers may be exempt from this directive. "It covers infringement on a commercial scale so would not cover the private individual downloading unlicensed music unless he or she were selling it on," says Penfold from DLA Piper.

The proposed directive does not yet define what is meant by 'commercial', however, and this definition will impact whether file sharers are excluded from the directive. In the IPR Enforcement Directive, commercial was defined as "anything which creates a direct or indirect economic advantage". This definition could include file sharers, according to Ian Brown from the Foundation for Information Policy Research in an earlier interview. "You could argue that a file-sharer gets an economic advantage by downloading a song," he said.

Patents
Current UK law does not offer criminal sanctions against those accused of infringing patents, but the proposed directive claims to cover "all intellectual property".

Penfold says it would be difficult to justify criminal action against those accused of patent infringement due to the complexity of patent lawsuits. "Patent infringement is very complex and can take a number of years to resolve in court. You're unlikely to see the police impounding things which are infringing patents," he says.

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