What are intellectual property offences?

Intellectual property

Intellectual property offences generate an infinite number of queries in law firms. This is mainly due to the fact that it is a concept that is difficult to define and about whose use there are many controversies. Here we will try to explain what they are and tell you everything you need to know about them.

What are crimes against intellectual property?

Intellectual property is an economic good that refers to both physical and intangible products and is therefore subject to exploitation by the legal owner. The aim of this concept is to protect the interests of creators against those who only seek to obtain a monetary return from the work of others. 

Therefore, crimes against intellectual property must be understood as the infringement of the rights of authors with regard to the economic exploitation of their creations. They are typified in articles 270, 271 and 272 of the Criminal Code, although they are also governed by the Civil Code. 

What are the main offences against intellectual property?

The basic type of offence against intellectual property

Article 270.1 of the Criminal Code establishes the basic type of offence against intellectual property. This refers to anyone who, with the intention of obtaining an indirect or direct economic benefit and/or with the intention of harming a third party, plagiarises, distributes, reproduces or communicates in public, in part or in full, a scientific, artistic or literary work.

It also includes those who transform, perform or interpret the work for that purpose by any means without the express authorisation of the copyright owners or, failing that, their licensees. Fines of between 12 and 24 months and prison sentences of between 6 months and 4 years are established for all of them.

Plagiarism of a work

Plagiarism also falls within the scope of crimes against intellectual property. Specifically, it is a concept that refers to the suppression of the name and figure of the author of a certain work with the purpose of putting another in his place. The main difference with respect to the basic type is that, instead of being an express attack against the work, it is a harm done to the creator explicitly. 

It should be noted that it is not necessary for a work to have been published for it to be plagiarised, contrary to what many believe. In fact, the offence of plagiarism also covers the copying of an original idea even if, in its development, the wording or execution and its approach have been completely changed. 
The peculiarities of intellectual property crime via the Internet.

If we take into consideration the data of lawsuits registered in the courts during the 1980s and the first half of the 1990s and compare it with the number that has occurred over the last 20 years, the truth is that there has been an exponential increase. Fundamentally, this has been due to the irruption of the Internet and its implementation in the vast majority of Spanish households. 

As a result, a few years ago, the Penal Code reformulated its articles on crimes against intellectual property. Specifically, it added a point specifying that subjects or entities that, through the provision of services that could be included within the information society, provided that there is a direct or indirect intention to obtain an economic benefit and/or harm to a third party, actively facilitate the commission of these crimes, would be liable and would have to face the same penalties as if they had committed them directly. 

This appears, specifically, in Article 270.2 of the Penal Code. This section also adds another point. It also punishes those who make available to users classified and ordered lists of works subject to intellectual property rights without the express authorisation of their creators, regardless of whether it is their users who have shared them with others. 

This is the reason why websites such as RojaDirecta, Series.ly or EliteTorrent, which became very popular among Internet users, have had to be shut down in recent years. Although they only showed links to content uploaded by their users, the law held them responsible for crimes against intellectual property.

The peculiar case of the 'manteros

Article 270.4 of the Penal Code is the one that revolves around 'manteros', i.e. those who sell products subject to intellectual property rights in an itinerant manner. In this regard, the judge is required to take into account the small amount of the economic benefit obtained and the characteristics of the guilty party when setting the penalty. 

In the event that the subject is able to avail himself of this article, he will only have to face between 31 and 60 days of community service or, failing that, a fine of between 1 and 6 months. 

How are crimes against intellectual property prosecuted? Who are the parties entitled to file a complaint?

Current legislation establishes that legal proceedings against intellectual property offences can be initiated through any existing ordinary channels. This means that it can begin by means of a police report, a complaint, a complaint by the perpetrator or ex officio.

What precautionary measures does the law provide for?

The judge, at the preliminary hearing, if he observes clear indications of a criminal offence, may order that the works be automatically removed. In the event that the offence has been committed via the Internet, the judge will demand the interruption of the service that made the object of the criminal offence available to users.

Similarly, the judge can also seize the income that has been illegally obtained through the intellectual property offence that he or she is judging. 

Ultimately, the judge has the possibility of 'seizing' the copies that have been used or produced, as well as the material that is being used for communication or reproduction. 

In any case, these measures should always be taken on a discretionary basis and taking into account the particularities of each specific case. 

Civil liability arising from intellectual property offences

As mentioned above, crimes against intellectual property are also subject to civil liability, not only criminal liability. This is set out in Article 272 of the Criminal Code. Its aim is to compensate the injured party for the damages suffered by the defendant. 

This must be clearly specified in the conviction. It must also reflect the measures to be taken in order to ensure that the compensation can be enforced. 

In short, crimes against intellectual property, due to the intangibility of the goods to which they refer, are complex to determine. However, we are sure that we have been helpful in clarifying your ideas about them.