Gonzales is planning changes to US intellectual property laws
that will create new criminal offences and increase penalties for
existing ones. The most controversial move is likely to be the
criminalising of attempted infringement.
"It is a general tenet of the criminal law that those who
attempt to commit a crime but do not complete it are as morally
culpable as those who succeed in doing so," said a letter
accompanying the proposed Intellectual Property Protection Act of
2007 sent by the Department of Justice to Nancy Pelosi, the speaker
of the House of Representatives.
"We wanted to include as a crime any attempt to sell even if
there were no direct evidence of selling," one DoJ official told
Variety magazine. "For instance, authorities might uncover and
seize a warehouse full of pirated product sitting idle. Under the
new provision, that could be enough to draw charges of illegal
distribution as well as illegal copying."
Kim Walker, head of Intellectual Property at Pinsent Masons, the
law firm behind OUT-LAW.COM, said: "Currently there is no offence
of attempted infringement as such in the UK, but sometimes the
circumstances will justify a prosecution for dealing with
infringing articles, an offence under the Copyright, Designs and
Patents Act," he said.
That Act made it an offence to possess copyright infringing
goods, such as pirated DVDs, in the course of a business and with a
view to selling them. The maximum penalty is six months'
imprisonment and a fine.
But Walker said that Europe, like Gonzales, is seeking a move
towards a more sweeping criminalisation of attempted infringement.
"The Second Intellectual Property Rights Directive was written in
broad terms, to crackdown on attempted infringements on a
commercial scale," he said.
This Directive on criminal measures aimed at ensuring the
enforcement of intellectual property rights has not yet been
passed. A draft of this law, also known as the Second Intellectual
Property Rights Directive, or IPRED2, was approved by the European
Parliament late last month. It is now awaiting consideration by the
Council of Ministers.
The original wording of the proposal, written in 2005, stated:
"Member States shall ensure that all intentional infringements of
an intellectual property right on a commercial scale, and
attempting, aiding or abetting and inciting such infringements, are
treated as criminal offences."
Patent infringements have been excluded from the scope of the
Directive but if passed, UK intellectual property laws are likely
to change.
Gonzales's proposed new law would increase penalties for
copyright infringement. It would raise the maximum jail term for
counterfeiting from 10 to 20 years, a term that would be applicable
in cases of knowing or reckless attempts to cause serious injury.
It would increase that penalty to life imprisonment for knowing or
reckless attempts to cause death.
The law would also increase penalties for repeat offenders and
strengthen the provision of restitution for IP crimes such as
criminal copyright infringement.
