European Union Proposes Criminal Penalties for ACTA

According to a recent post by Knowledge Ecology International (KEI), the European Union is proposing criminal "procedures and penalties" for those who incite, aid, and abet certain offenses. At a minimum, it will apply "in cases of willful trademark infringement and copyright or related rights piracy on a commercial scale."

The EU proposal for the Anti-Counterfeiting Trade Agreement reads:

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[EU: ARTICLE 1. OFFENCE/CRIMINAL INFRINGEMENTS

1a. TRADEMARK COUNTERFEITING, COPYRIGHT AND RELATED RIGHTS PIRACY ON A COMMERCIAL SCALE

Each party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark infringement and copyright or related rights piracy on a commercial scale.

[EU: ARTICLE 2. LIABILITY, PENALTIES AND SANCTIONS

2B. INCITING, AIDING AND ABETTING

The provisions of this section shall apply to inciting, aiding and abetting the offences referred to in Article 1.

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As KEI notes, the current definition of "willful copyright or related rights piracy on a commercial scale" in ACTA includes "significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain." This clause may intend to introduce criminal liability to operators of internet websites that host infringed material, such as The Pirate Bay. However, such a clause may have further reaching implications.

The potential effects of the introduction of criminal liability to innovation on the Internet deserves further study. As the recent Italian case (indicting 3 Google executives after an Italian citizen uploaded an illegal Youtube video) indicates, there remains disagreement over the enforcement of criminal liability on third-party Internet Service Providers.

Uncertainties and the risk of criminal prosecution may provide disincentives to Internet companies to provide innovative new services. Services that are now commonly used, such as Google Image Search and YouTube, developed and evolved through its interaction with evolving legal boundaries. Introducing criminal liability into a nascent marketplace may increase the cost of that interaction to a prohibitive level, which in turn may stifle innovation.

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