A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 11: Criminal enforcement and European Union law
Criminal enforcement of intellectual property (IP) law is a rising trend in Europe. The European Commission intended to criminalize IP infringements and introduce treble damages in the First Enforcement Directive IPRED1), but had to drop this for presumed lack of Community competence, among other reasons. IPRED1 has justifiably been characterized as ‘one of the most badly-drafted and hotly-opposed Directives in EU history’. Yet, the Commission did not drop the criminalization of IP infringements from its policy agenda. It later pursued such efforts on two fronts: internally through a directive proposal on criminal measures aimed at ensuring the enforcement of intellectual property rights (IPRED2) and externally through a multi-party Anti-Counterfeiting Trade Agreement (ACTA). The latter contains a section on criminal enforcement of IPRs. IPRED2 (if later proposed anew) is likely to become as controversial a measure as IPRED1 used to be or ACTA is.The urge to criminalize IP infringements has not been restricted to the EU institutions or international measures. The member states of the Union have been active too. For example, the ministry responsible for copyright law in Finland argued in its legislative proposal that the motivation of financial gain should be dropped from the definition of copyright offence to secure the jurisdiction for police to investigate private actions and computers in the Internet environment. Such a motivation to aggravate criminal liability is hardly in line with the ultima ratio (a means of last resort) nature of criminal law, but serves the interests of copyright owners well. Courts in Finland have done no worse job in strengthening copyright through the extension of criminal liability. The Supreme Court of Finland confirmed in its landmark ruling of June 2010 the criminal liability of operators of a torrent file-sharing service Finreactor. Unlike the Swedish courts in Pirate Bay, the Finnish Supreme Court did not base its ruling on aiding and abetting a principal offence. Instead, the operators actually committed the copyright infringements in construed collaboration with the file-sharers.