Intellectual Property Trade Marks and Crime

The Act is set to strengthen the existing criminal provisions of the Copyright Designs and Patent Act (“CDPA”) 1988 and the Trade Mark Act (“TMA”) 1994. It will therefore be of interest to those companies that vest interests in intellectual property rights and most notably those who have a strong interest in copyright protection. The legislation has been enacted in the hope to battle the inconsistency and complicated area of piracy and similar infringements while at the same time reassure and offer a stronger position for the rightholder.

The maximum penalty for certain offences committed under the CDPA will be the increased prison sentence from two to ten years. This will concern: * The dealing of infringing or pirated copies of copyright works, as well as articles designed for making copies; * Dealing in illicit or bootleg recordings of performances; and * Dealing in any apparatus designed or adapted to decode an encrypted transmission (ie unauthorised decoders for satellite broadcasts, cable programmes etc) The option will be left open for six months imprisonment to the available penalty for summary conviction for this type of dealing. This part of the Act reflects the current view of the fact that this type of offence is to be taken seriously as the damaging effect of IP crime across the world is extensive. First, there is the direct impact on business and the harm caused to the IP rights owner. Secondly, there is the indirect harm caused to the economy through lost taxes (£1.55 billion (US$2.3 billion) in 2000 in the UK), lost jobs, and possible loss of foreign investment in those countries where counterfeiting is widespread. Counterfeiting is estimated by the affected industries to cost the UK economy £9 billion a year, and is responsible for the loss of over 4,000 jobs. There is also the indirect social cost, as lost revenues lead to a diversion of public funds. There is the possible risk to health and safety posed by inferior goods and the absence of recourse for the consumer if things do go wrong. The position prior to the Act was that police officers could obtain a search warrant for serious offences under the CDPA as long as the officer had reasonable grounds for believing that an offence is or is about to be committed. The Act has now widened the position so that a search warrant will be available for less serious offences, this now corresponds to Section 92 of the TMA which relates to counterfeit goods. Further to this, the Act facilitates the forfeiture of copyright infringing goods so that it will now correspond with the similar provisions found in the TMA for counterfeit goods. Although the Act has been somewhat watered down since the bill was proposed as far back as 2000, the Act does provide some comfort that the issue of IP infringement and crime is a serious issue that poses a threat to both the right owner and society in general. However, what poses the problem is that the government has stipulated that no extra resources will be given to impose the Act. This would seem to be a small price to pay for such a costly crime!

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