Firmer sanctions for intellectual property crimes

In the beginning of August, the Council of Ministers approved a draft Amending and Supplementing Act of the Bulgarian Criminal Code and submitted it to the National Assembly. The principal changes, introduced by the draft, concern intellectual property crimes and cybercrime, in particular. In the motives of the draft Act, special attention is paid to the cross-border nature of cybercrime and the increase in the number of crimes against intellectual property committed on the Internet.    

Undoubtedly, the protection of intellectual property rights in the modern world requires rules and actions, which go beyond the territory of a single state. As infringements of intellectual property rights in the Information Age do not stop at national borders, remedies should also be gradually adapted in order to be effective. Adopting a harmonised approach among different countries around the world would significantly contribute to a more effective protection of intellectual property rights.

The legislative process cannot evolve at the same pace as technological innovation, which continuously finds its way around rules and restrictions. That said, the Bulgarian legislation has been significantly delayed in terms of the introduction of a suitable sanctioning regime and will to prosecute cybercrime against intellectual property. This has led to a widespread popularity of this type of violation. In fact, the current legislation and the absence of effective prosecution lead the average user to feel that the free download of audiovisual or musical works from the Internet is admissible.

The proposed changes to Section VII "Crimes against Intellectual Property" of Chapter Three of the Criminal Code (CC) are definitely a step in the right direction, although additional legal mechanisms and especially effective prosecution of these crimes are needed. The main part of the proposed changes consists in a significant increase in the statutory sanctions. For instance, the following amendment of paragraph 1 of Article 172a of the Criminal Code is proposed: “whoever records, reproduces, disseminates, broadcasts or transmits, or otherwise uses a copyright or related rights object, or copies thereof, without the legally required consent of the holder of the respective right” to be  punished with imprisonment of one to six years and a fine of up to BGN 10 000, instead of the previously provided "up to five years and a fine of up to BGN 5000."

Also worth noting is the proposal for a text supplementing Article 172b, paragraph 1 of the Criminal Code, where the sanctions for unauthorised use of a trademark, industrial design, plant variety or animal breed and geographical indication, have been supplemented with other objects of industrial property - invention and utility model.

The proposal to add a new paragraph (3) to Article 173 is of particular interest. The Article refers to the publication or use under one's own name or under a pseudonym of a third party’s copyright work or a significant part thereof, as well as the submission for registration or registration on one's own behalf of a third party invention, utility model or industrial design. The proposed new text of paragraph 3 provides for a heavier penalty when these acts are committed "on the Internet or have caused significant harm".

However, it remains unclear why the firmer sanctions for crimes committed on the Internet are provided only in connection with Article 173 of the Criminal Code, but not with regard to the crimes under Articles 172a and 172b of the Criminal Code.

The last group of changes that should be mentioned are the proposed firmer sanctions for the so-called " computer crimes " provided for in Chapter 9a of the Criminal Code. In addition to increasing the fines and periods of imprisonment, the draft Amending and Supplementing Act of the Bulgarian Criminal Code explicitly introduces the terms " personal data" and "information system that is part of the critical infrastructure".

The brief analysis of the draft Amending and Supplementing Act of the Bulgarian Criminal Code illustrates that the legislator is aware of the need for stricter sanctioning of intellectual property crimes. However, it appears there is still a long way to go in order to achieve full and effective protection of intellectual property rights on the Internet.