Piracy – Unauthorised Use Of Trademarks And Copyright
By now infringement of copyright and trademarks takes place on a considerable scale. In Denmark, a new bill will tighten the rules for infringement of intellectual property rights, etc. This bill involves infringement of copyrights, patterns, trademarks, patents, utility models and counterfeit products.
Some of the most vulnerable industries are as follows, when it comes to infringement of copyright and trademarks:
- the software industry,
- the audio-visual industry,
- the recording industry,
- the textile industry,
- the perfumery industry,
- the watchmaking industry,
- the pharmaceutical industry,
- the toy industry
- and the motor industry.
In its Green Paper on combating counterfeiting and piracy in the Single Market, the EU Commission assessed that counterfeiting and piracy amount to approx. 5 to 7 per cent of world trade.
The recording industry calculates that between 25 to 35 per cent of all recordings (compact discs, etc.) manufactured and sold worldwide are illegal copies. Within the software industry it is assumed that almost half of all programmes used worldwide are pirate products.
The types of unauthorised use are varied. In the area of trademarks the illegal activity mainly consists of import and distribution of counterfeit products as well as distribution of products onto which have been applied a counterfeit trademark. These "counterfeit" products are sold in retail outlets, from market stalls and via direct sale to private individuals.
In the area of copyright the infringements take place both commercially and privately. The digital technology has facilitated quick and relatively cheap reproductions of a high quality. Against an investment of less than DKK 5,000, anyone may purchase the equipment needed to manufacture pirate products, i.e. compact discs or the like.
Infringements also happen in connection with import of illegally manufactured computer programmes and compact discs, etc. Finally, widespread unauthorised use in the form of illegal use of computer programmes happens both in businesses, etc. as well as in private households. The extensive use of the Internet has increased the extent of the infringements. This is partly because illegally manufactured CD-ROM and compact discs to a wide extent are offered for sale on the Internet, and partly because there are a large number of homepages from which illegal copies of computer programmes or protected music may be downloaded directly to the Internet user’s computer.
On 4 October 2000, the Danish Ministry of Justice submitted a bill on protection of evidence in cases concerning infringement of intellectual property rights, etc. At present, the bill is being considered by the legal affairs committee, however, it is expected to be approved after the 2nd and 3rd reading in the Danish Folketing at the beginning of 2001, coming into force on 1 April 2001.
The basis for the bill is that the Danish IT industry has pointed out that the industry finds that the present rules are insufficient, when it comes to protecting the evidence of illegal copying of computer programmes, especially in cases which involve a large number of illegal programmes.
The taking of evidence is difficult in cases like these, because computer programmes may be deleted very quickly. If the infringements consist of illegal internal use of computer programmes or any other digitally stored material, they are generally very difficult to prove, unless it is possible to obtain access to a compulsory examination of the computer(s) used in connection with the illegal use.
It is also a factor that illegal computer programmes or other digital material installed on computers may be deleted in no time, thus destroying the evidence of the infringements. It is therefore a requirement that an examination for protection of evidence may be carried out unannounced.
On this basis the bill includes a proposal that in cases where it without extensive evidence may be rendered probable that substantial infringements of intellectual property rights, etc. are taking place, the rights holders are given an opportunity to have an unannounced and compulsory examination effected of a presumed infringer’s premises and objects.
The examination should especially include bookkeeping material, etc. and computers with a view to protecting evidence of the infringements and the extent hereof.
The application for an examination is presented to a Danish enforcement court, which will then fix the time and place for the proceedings.
The interesting new instrument in the civil procedure is that prior notification of the defendant may be avoided if such a notification may be presumed to imply the risk that objects, documents, information on computers or anything else which is included in the application for examination are removed, destroyed or changed.
The infringer will on the other hand be entitled to have an attorney present during the proceedings. A decision on the effectuation of an examination may be conditional upon the injured party providing security for the damage or inconvenience, which the infringer may suffer during such proceedings. The enforcement court determines the nature and size of the security.
To the extent where it is considered necessary in order to protect evidence, the enforcement court may seize objects or documents. The court – or a person authorised by the court - may also take photographs, shoot films and produce copies of documents, information on computers, computer programmes and other material.
It is expected that the investigation often will lead to the case will be subsequently concluded by the infringer’s accept of the infringement. If this is not the case the injured party must bring an action to the ordinary courts, within four weeks after the conclusion of the examination. In case it turns out that the right claimed by the injured party does not exist, the infringer is entitled to damages for loss and compensation for injury to reputation.
It is expected that the new rules will facilitate the implementation of cases concerning infringement, and thus help combat the extent of infringements of copyright and trademarks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.