What are the crimes against intellectual property?
A crime against intellectual property can be defined as the violation of the rights that an author has over his work, and that this violation comes with damages for the author, in addition to seeking to obtain an economic purpose.
This type of crime –against intellectual property– violates both the moral and patrimonial rights that the authors have over his/her work that can be artistic, literary, scientific or technological.
To be protected by the Intellectual Property Law, it is not necessary for the work to be registered, since the rights over it are guaranteed from its creation, even if it is about web pages on the Internet.
Crimes against intellectual property in the Penal Code
The Criminal Code, in its articles 270 to 272, typifies crimes against intellectual property, where penalties are established. The penalties can range from fines to prison sentences upto 4 years, depending on the seriousness, the benefit obtained and the responsible parties. Likewise, other additional measures may be applied, depending on the case.
As stated in section 1 of article 270 of the Penal Code:
A prison sentence of six months to four years and a fine of twelve to twenty-four months will be applied to whoever, with the intention of obtaining a direct or indirect economic benefit and to the detriment of third parties, reproduces, plagiarizes, distributes, publicly communicates or economically exploits in any other way, in whole or in part, a literary, artistic or scientific work or performance, or its transformation, interpretation or artistic execution fixed in any type of support or communicated through any means, without the authorization of the owners of the corresponding intellectual property rights or their assignees.
Types of crimes against intellectual property
In general, three types of crimes against intellectual property can be distinguished:
The basic type
The basic type of crime against intellectual property, contained in article 270.1 of the Penal Code, establishes that it is that crime carried out with the purpose of obtaining direct or indirect profit, harming a third party and through which it is reproduced, plagiarized, distributes, publicly communicates or economically exploits in any other way, in whole or in part, a literary, artistic or scientific work or performance, or its transformation, interpretation or artistic execution fixed on any type of support or communicated through any mean, without the authorization of the copyright holders or their assignees.
To be considered a crime against basic intellectual property, it must meet the following requirements:
- That are related to literary, artistic or scientific works, including musical, photographic, cinematographic and software.
- That they reproduce or distribute the mentioned works without having the permission of the author or owner of the intellectual property rights.
- That there is an intention to obtain direct or indirect economic benefit.
- That causes harm or damage to a third party.
This type of crime against intellectual property consists of copying the original work of an author and passing it off as one’s own. It is about taking advantage of the work already done by another person, to claim the authorship of said work and make it known under a false authorship. Included in this type of crime is even the plagiarism of original artistic, literary or scientific ideas.
The Criminal Code establishes in article 270.2 that those who facilitate, distribute or make available to users classified and ordered lists of works subject to copyright, without the authorization of their creators, commit a crime against intellectual property, no matter whom has given them access or links to those works, and provided that these subjects have the purpose of profiting directly or indirectly from these actions or harm third parties.
How to report a crime against intellectual property?
When an author considers that the rights of his work have been violated, he may resort to the ordinary channels established in the current legislation, such as resorting to the police report, the complaint, the complaint of the author or owner of the rights or an ex officio action.
If the judge, at the preliminary hearing, observes indications of crime, he may automatically order that the works be withdrawn, the service necessary to access the works on the Internet be interrupted, as well as the intervention of the income obtained illicitly by the offenders. as a consequence of the violation of intellectual property rights, as well as ordering the seizure of the copies produced and/or used to publicly communicate the investigated works.
Civil liability in crimes against intellectual property
Those who commit crimes against intellectual property are also subject to civil responsibilities, and as stated in article 272 of the Penal Code, compensation can be established for those affected, to remedy the damages caused.
The amount of said compensation is governed by article 140.1 of the Intellectual Property Law and will be established, if it is determined, in the conviction, as well as the way in which it must be paid.
How is intellectual property different from industrial property?
The main difference between the two is related to the registration of rights. While in the case of industrial property (for example, patents or brand licenses), it is necessary that these rights over products or designs be registered (they require procedures for the production of products or the creation of distinctive signs of a company) in the case of intellectual property, such registration is not required.
To learn more about what crimes against intellectual property in Spain entail, or to consult with expert lawyers on the subject, contact our firm Jesús Becerra Abogados.