Navigating Criminal Liability In Intellectual Property Offenses

Shreya Chaturvedi, Sinhgad Law College, Pune

ABSTRACT

Intellectual property (“IP”) offenses can encompass a wide variety of issues including copyright infringement, trade secret misappropriation, trademark counterfeiting and patent infringement. The underlying thread is the unauthorized use or acquisition of valuable information or creative works that are owned and protected by the individual or entity that created and/or acquired such rights. The intellectual property rights at issue can be equally valuable to individuals and small business owners as they are to larger corporate entities. In many industries, the intellectual property is often the most valuable asset a company holds. Offenses can occur between individuals, companies, and countries as vast technological and legal advances can allow for the theft and distribution of said information in ways heretofore only imagined in the pages of a science fiction novel.

It is crucial to understand that, in practice, the line between tort and IP criminal infringement can often be thin; while a certain act may not attract criminal liability if it is performed intentionally and/or for profit, similar acts can, in certain jurisdictions, attract criminal liability without the need to prove any mental element. The increasing use of technology has further complicated the landscape of intellectual property offenses. IP criminals are increasingly operating undercover and across jurisdictions, making domestic and cross-border enforcement increasingly difficult. As the threshold for proving criminal IP infringement is much higher than for tortious infringement, it is clearly important - for rights owners and potential infringers alike - to know exactly what amounts to criminal conduct, and the consequences of such conduct.