UK intellectual property law makes it a crime to infringe IP rights in certain limited circumstances. These pertain only to the infringement of a third party’s copyright or trademark right. It is a general condition that an infringement occurs on a commercial scale. It is the intention of the legislator to prevent piracy. However, in many cases the question of piracy is not as clear cut as appears, and often the term ‘infringement’ – which is as such not further defined in any of the statutory texts – causes doctrinal problems that put the legislative decision to apply criminal law to the test. This chapter will tentatively argue that – outside of salient examples of large scale counterfeiting – criminal norms prohibiting an infringement of IP rights are counter-productive, principally because the effect of deterrence diminishes a reasonable evolution of IP law, and in a similar vein because – for good reason – it is not possible to unequivocally determine what, from an ontological perspective, an IP right actually is. In other words, it is the fluctuation in normative IP assessment that necessarily determines the boundaries, time and again, irrespective of whether these boundaries are expanded or limited. In order to demonstrate this, this Chapter will identify salient examples under trademark and copyright law: the expansion of trademark rights on the one hand, and the notion of ‘copyright infringement’ as now established under the UK Digital Economy Act 2010.
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