Understanding the Intersection of Criminal Law and Intellectual Property

Intellectual Property (IP) law is designed to protect the private rights of property owners, while criminal law is intended to protect public interests if they are harmed. In today's technology-driven society, the magnitude of intellectual property violations, such as counterfeiting, has a direct impact on public interests and requires the application of criminal legislation to ensure strict protection of intellectual property. This article examines the intersection between criminal law and intellectual property through a combination of exploratory and analytical methods. First, the authors explore the debate on criminal law in the area of intellectual property rights and examine the extent to which criminal elements can be identified in intellectual property violations. Secondly, the concept of economic crimes as opposed to conventional crimes is discussed.

In this regard, the laws of India, the United Kingdom (UK) and the United States (US) are examined, together with the most recent international developments, to show the trend towards criminal law enforcement as the best possible protection for businesses and legitimate consumers. The fair use clause allows for the use of intellectual property for educational purposes without permission from the intellectual property owner. However, if someone copies a logo that belongs to another company and knows that it belongs to someone else, this would be considered intellectual property theft. Article 296ZB of the CPDA defines a series of criminal offences related to devices or services that allow or facilitate the circumvention of technological measures and the advertising of a service for this purpose. What distinguishes criminal law from other mechanisms of social control and other branches of law is the sanction used to support the norms, namely, stigmatic punishment. It is known that, while intellectual property legislation protects private rights, criminal legislation has always been a tool to protect public interest by justifying criminal sanctions for harming society. The era of rapid emerging technological advances has paved the way for new forms of violations against this type of intangible property.

Because of this situation, governments of developed countries turned to bilateral and plurilateral trade agreements (FTAs) as an alternative way to impose higher levels of criminal compliance and resolve growing concerns from intellectual property owners due to counterfeiting, piracy and related intellectual property infringement activities. The mens rea element is clearly there, but in this case prosecution does not need to prove mens rea beyond a reasonable doubt since transaction may be civil in nature but impact of violation of private right ultimately resulted in commission of public crime so punishment would be decided in accordance with criminal procedure and provisions of specific law in question. Even if you don't actually intend to sue person who stole your intellectual property, threat of filing lawsuit can often be reason enough for you to return or stop using intellectual property.

Dawn Launiere
Dawn Launiere

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