Rights holders are often unaware of how effective criminal prosecutions (and in particular, private prosecutions) can be as a means of protecting IP. While private prosecutions should not be used as a
Rights holders are often unaware of how effective criminal prosecutions (and in particular, private prosecutions) can be as a means of protecting IP. While private prosecutions should not be used as a means of settling civil disputes over arguably legitimate activities, they offer a distinct alternative for dealing with criminal behaviour that may not be adequately dealt with in the civil courts. Success in civil proceedings may only achieve pyrrhic victories if infringers are able to hide behind dissolved companies or where they leave the jurisdiction. Rights holders should not fear enforcing their rights in the criminal courts.
Finding a state agency with the expertise and resources to bring a prosecution can be difficult. Fortunately, the Prosecution of Offences Act 1985 allows anyone to bring a private prosecution. The courts have made clear that prosecutions are inappropriate for dealing with matters that might more properly be settled by civil litigation. If there is a legitimate debate over fair use then a prosecution is likely to be inappropriate.
Once rights holders are able to establish a prima facie case that there has been criminal infringement, they can approach the police to apply for search warrants, arrest suspects, interview them under caution etc. It will then be for the rights holder to prosecute the case. Even in cases where rights holders are targeting those at the bottom of the criminal chain, they may obtain valuable information that enables them subsequently to pursue those more directly responsible for infringements. Such 'pyramid' approaches can lead to substantial success.
Perhaps most importantly, provided that they act in good faith, private prosecutors are entitled to recover from the government the reasonable costs of both investigation and prosecution, even if the defendant is acquitted. The deterrent effect of convictions can be substantial. Serious infringements routinely result in prison sentences and may result in confiscation of the offender's income for the preceding six years.
In cases where rights holders consider that they are clearly being cheated, they would be well-advised to consider whether they are able to establish prima facie evidence of criminality. Obtaining specialist advice at an early stage will ensure that they are able to assess whether a prosecution may be appropriate and, if so, how to go about pursuing it. They can then pursue those responsible, protect their immediate rights and send a clear deterrent to others who may think that IP infringement is a soft option.
Please click here to read more about the issues and practicalities around private prosecutions for IP crime.
Finding a state agency with the expertise and resources to bring a prosecution can be difficult. Fortunately, the Prosecution of Offences Act 1985 allows anyone to bring a private prosecution. The courts have made clear that prosecutions are inappropriate for dealing with matters that might more properly be settled by civil litigation. If there is a legitimate debate over fair use then a prosecution is likely to be inappropriate.
Once rights holders are able to establish a prima facie case that there has been criminal infringement, they can approach the police to apply for search warrants, arrest suspects, interview them under caution etc. It will then be for the rights holder to prosecute the case. Even in cases where rights holders are targeting those at the bottom of the criminal chain, they may obtain valuable information that enables them subsequently to pursue those more directly responsible for infringements. Such 'pyramid' approaches can lead to substantial success.
Perhaps most importantly, provided that they act in good faith, private prosecutors are entitled to recover from the government the reasonable costs of both investigation and prosecution, even if the defendant is acquitted. The deterrent effect of convictions can be substantial. Serious infringements routinely result in prison sentences and may result in confiscation of the offender's income for the preceding six years.
In cases where rights holders consider that they are clearly being cheated, they would be well-advised to consider whether they are able to establish prima facie evidence of criminality. Obtaining specialist advice at an early stage will ensure that they are able to assess whether a prosecution may be appropriate and, if so, how to go about pursuing it. They can then pursue those responsible, protect their immediate rights and send a clear deterrent to others who may think that IP infringement is a soft option.
Please click here to read more about the issues and practicalities around private prosecutions for IP crime.