Question: Is it a crime to infringe somebody else’s intellectual property (IP) rights?
Before answering this, it is important to point out that laws differ from country to country, so even if something is not strictly “criminal” in one country, it could be criminal in another country. I will look at it from an Australian point of view.
Okay, so is it a crime to infringe somebody else’s IP rights in Australia?
The unsatisfying answer is “sometimes yes, and sometimes no”. It depends on several things, including what type of intellectual property right is involved. For instance, patent infringement never amounts to a crime in Australia (except perhaps if the infringement continues after (and despite) a court order to stop, in which case the continued infringement may constitute contempt of court). Australian law does, however, provide a number of offences for infringement of other types of intellectual property rights, namely copyright, trade marks and plant breeder’s rights.
Okay, but in situations where IP infringement is not a crime (like e.g. patent infringement), does this mean it’s okay to simply infringe someone else’s IP right (e.g. their patent) without fear of consequences? No, definitely not. Infringing somebody else’s patent in Australia, even though it is not a crime, is still very much unlawful. What this means in practice is that, in Australia, legal action relating to patent infringement (and other non-criminal forms of IP infringement) must be brought in the civil courts (or courts exercising their civil jurisdiction) and by the parties themselves. There are no “patent police” in Australia whose job it is to get out there and make sure people’s patents aren’t being infringed (if only there was!). Instead, it’s up to patent owners themselves to monitor their competitors and the marketplace, and to take action if an infringement, or a perceived infringement, arises.
However, as I said above, Australian law does provide a number of offences for infringements of other types of intellectual property including, in particular, copyright and trade marks. In relation to copyright, the Copyright Act 1968 contains a range of provisions which make it a crime to commercialise, or even make, infringing copies of copyright-protected material (e.g. music, films, photographs, etc). Similarly, in the field of trade marks and branding, the Trade Marks Act 1995 contains a number of provisions which make it a crime to deface or falsify or remove a registered trade mark, or to falsely apply a registered trade mark without the owner’s consent.
Alright, so if these kinds of copyright and trade mark infringements can (at least potentially) amount to a criminal offence in Australia, are there “copyright police” or “trade mark police” out there monitoring for these kinds of things? Answer: Not really, no. At least, there is no agency whose sole purpose is to monitor and enforce these kinds of intellectual property related criminal provisions. The closest thing we have in Australia is the Australian Federal Police (AFP), which is the Australian (Federal) Government’s official investigating and criminal law enforcement agency. So if you become aware of an IP crime in Australia, like the kinds of copyright or trade mark infringements mentioned above, or if you suspect such a crime may have been (or is being) committed, the AFP is the appropriate agency to report it to. However, given that the AFP is also responsible for investigation and enforcement in relation to the various other classes of crimes provided for under Australian federal legislation, including drug crimes, cybercrime, currency counterfeiting, human trafficking, people smuggling, etc, it’s probably fair to say that they have a fair bit on their plate, and as a result not all offences committed in contravention of Australian IP crime laws get prosecuted (or even investigated). Also, whilst the AFP is the agency responsible for investigating these kinds of IP offences, actual criminal prosecutions must be approved and brought by the Australian Commonwealth Director of Public Prosecutions (CDPP). And like the AFP, the CDPP has limited resources, so prosecuting intellectual property offences (especially minor ones, or ones involving small amounts of money or small quantities of infringing product) may understandably be fairly low on their priority list.
Nevertheless, at an international level, intellectual property crime is without doubt a massive problem. Organised crime is known to generate hundreds of billions of dollars annually through the manufacture and distribution of fake and counterfeit products alone. In fact, IP crime is considered to be such a major issue internationally that Interpol, in cooperation with UL University, have developed the International IP Crime Investigators College (IIPCIC), which is an online IP crime training site whose mandate is to develop, coordinate and administer training programs to support the fight against IP crime. Since its creation in 2011, IIPCIC has apparently educated thousands of global law enforcement officers on the nature of IP crime and how to prevent, detect and investigate these kinds of offences.
One can only hope that, with time, initiatives like this will lead to a reduction in the prevalence of intellectual property crimes, at both a local and international level.