US to criminalise attempted copyright infringement

The US will criminalise attempts at copyright infringement under a new law proposed by Attorney General Alberto Gonzales. In the UK, attempted infringement is not a crime though it is an offence to possess infringing goods with a view to selling them.

Gonzales is planning changes to US intellectual property laws that will create new criminal offences and increase penalties for existing ones. The most controversial move is likely to be the criminalising of attempted infringement.

"It is a general tenet of the criminal law that those who attempt to commit a crime but do not complete it are as morally culpable as those who succeed in doing so," said a letter accompanying the proposed Intellectual Property Protection Act of 2007 sent by the Department of Justice to Nancy Pelosi, the speaker of the House of Representatives.

"We wanted to include as a crime any attempt to sell even if there were no direct evidence of selling," one DoJ official told Variety magazine. "For instance, authorities might uncover and seize a warehouse full of pirated product sitting idle. Under the new provision, that could be enough to draw charges of illegal distribution as well as illegal copying."

Kim Walker, head of Intellectual Property at Pinsent Masons, the law firm behind OUT-LAW.COM, said: "Currently there is no offence of attempted infringement as such in the UK, but sometimes the circumstances will justify a prosecution for dealing with infringing articles, an offence under the Copyright, Designs and Patents Act," he said.

That Act made it an offence to possess copyright infringing goods, such as pirated DVDs, in the course of a business and with a view to selling them. The maximum penalty is six months' imprisonment and a fine.

But Walker said that Europe, like Gonzales, is seeking a move towards a more sweeping criminalisation of attempted infringement. "The Second Intellectual Property Rights Directive was written in broad terms, to crackdown on attempted infringements on a commercial scale," he said.

This Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights has not yet been passed. A draft of this law, also known as the Second Intellectual Property Rights Directive, or IPRED2, was approved by the European Parliament late last month. It is now awaiting consideration by the Council of Ministers.

The original wording of the proposal, written in 2005, stated: "Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences."

Patent infringements have been excluded from the scope of the Directive but if passed, UK intellectual property laws are likely to change.

Gonzales's proposed new law would increase penalties for copyright infringement. It would raise the maximum jail term for counterfeiting from 10 to 20 years, a term that would be applicable in cases of knowing or reckless attempts to cause serious injury. It would increase that penalty to life imprisonment for knowing or reckless attempts to cause death.

The law would also increase penalties for repeat offenders and strengthen the provision of restitution for IP crimes such as criminal copyright infringement.