Significance of documentary evidence in cases of copyright and adjacent rights violations
Date: October 01, 2004Source: Computer Crime Research Center
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Both significance and complexity of establishing facts of copyright violation are explained by a sufficiently large number of copyright violations and also by the presence of intermediate facts in proof.
The most important element of any criminal proceedings is evidence. Therefore, correct documenting (securing) evidence determines the proceedings.
Evidence on the case is information on facts collected according to law, used by court to establish the presence or absence of circumstances that prove requirements and claims of the parties, and other circumstances substantial for correct legal investigation. In case of civil proceedings this information (according to law) can be obtained in the following ways:
1) explanations of parties and third persons;
2) testimonial evidences;
3) written and material evidence;
4) audio and video records;
5) conclusions of experts.
The first means of proving and the first thing received by court is explanation of parties and third persons (written or verbal). Explanations given by parties are to be checked and evaluated along with the other evidence on the case. These explanations are not enough for complex all-round legal investigation and passing well-grounded judgement.
Sometimes testimonial evidences serve as main proofs. While evaluating testimonial evidences the court may take into account the character of relationship between witnesses and the litigants (relatives, close friends, subordinates, accidental passers-by) as the factor of “non-objectivity” of witnesses or possible pressure on them and also circumstances where the person has become a witness. It appears that testimonials of accidental passers-by who became eyewitnesses of the perpetration find a lot more credence of the court.
Written evidences are acts, contracts, references, business correspondence, other digital documents and materials including those received through facsimile, electronic or other kind of communication, or other ways that allow to establish authenticity of the document, that contain data on various facts substantial for the case, that are of importance to legal investigation and solution of the case. Only a document – information fixed on a material bearer with requisites that allow identifying it – can be considered as written evidence. Usual printout of the webpage from the Internet is not a document, as it has no features of a document. The printed webpage is considered a document as it has a special assurance note. Other references received from ISP or network search services can also be written evidences.
Evidences related to computer crime cases can be easily changed either due to mistakes during extracting of them or the very examination. Production of such evidences in the judicial procedure demands special skills and proper training. It is not allowed to underestimate the role of examination that could provide qualified conclusion on questions posed by the investigation.
The analysis of practical experience of law enforcement on investigation of computer crimes indicates that it is appropriate to carry out examination of computers and computer facilities in forensic laboratories and by experts with necessary professional training.
Materials illustrating expert evaluation (photos, schemes, graphs, etc.) are attached to the conclusion and are its component.
Applicable in the court expert conclusion should consist of the following three parts: introductory, where all the necessary formalities are stated according to article 200 of the Criminal Code of Ukraine; descriptive, where the process of the investigation is given in details; and resolute, where all principal conclusions are stated. Therein, it is advisable to use certain terms. For instance, expert should provide three answers: “categorically yes”, ”categorically no” and “admittedly”.
The following are the evidences of copyright violations, the documents received by law enforcement agencies during checks committed by them on their own initiative or by complaints of rights owners:
- record of checking;
- record of examination of computer and software;
- record of examination of a tangible carrier where the installation of software products to on the computer was performed;
- conclusion of expert performing examination of the seized computer and tangible carriers with software;
- delivery note or cash memo for the purchased computer;
- warranty statement on the purchased computer;
- explanations of the employees of the seller company, explanations of the customer;
- copies of statutory documents of a legal entity (statute and foundation agreement);
- job functions of the organization directly related to selling computer facilities and software;
- advertising materials and price lists evidencing that accused person carried out entrepreneurial activity;
- other documents related to the software illegal sale or distribution in any form.
Counterfeit samples of software, production or use of which involves to copyright violations, are also referred to evidences of copyright violations.
Advertising materials, price lists, documents on goods and other materials evidencing copyright violation are also regarded as evidences along with counterfeit samples.
The situation gets more complicated when there are no counterfeit samples as such, as guilty person only reproduces pirated copies of software products at computers or illegally distributes them. Therein, such fact should be fixed documentarily, including printing out of files-catalogs with signatures of employees of the company-violator. Later on it will be helpful to identify the software and rights of the copyright owner. It is also expedient to obtain a list of clients that purchased software from this company in order to clear up whether these products were licensed.
In the presence of appropriate data on copyright violation, investigation agencies should undertake measures to search and seize samples of tangible carriers with software, referred as allegedly counterfeit, and also materials and equipment designed to produce the specified samples, including, where necessary, measures on their seizure and safekeeping.
Therein, an author or a copyright owner can turn to law enforcement bodies with corresponding application (i.e. to check the company supposedly involved in selling counterfeit products regarding copyright violation).
Law enforcement officers, as a rule, can take measures to search and seize some property as regards to legal investigation of copyright violation. However, irrespectively of the procedural decision taken by them (even in case when such decision involves refusal to instigate criminal proceedings), a copyright owner has a right to use obtained data to appeal to court on arbitral proceedings.
It is necessary to pay attention to the fact, that transaction of copyright can be performed through author agreement on transaction of exclusive or personal rights. Therefore, it is especially important to determine the absence of the agreement on transaction of rights during legal investigation of cases regarding individuals or legal entities installing pirated products on computers. At the same time, it is necessary to remember that there often is an agreement on usage of licensed products between copyright owner and the supposed violator. However, the user violates conditions installing software on greater number of computers than provided in the agreement.
The question of documentary evidences of copyright violations arises during investigation of entrepreneurial activity of the accused person. For instance, it is necessary to establish the mechanism of criminal actions, including price list, order of accounting, etc. in order to correctly qualify these actions as rent of counterfeit products.
It is necessary to establish the order of selling counterfeit products by using a control purchase (to obtain cash memos, delivery notices). Are similar documents issues when selling licensed products?
During investigation, it is necessary to establish, at least approximately, the volume of the obtained revenue from violation of copyright and adjacent rights. It also important for determining the damage caused to copyright owners; hence the damage would be not less than the revenues from violations.
Therefore, the following accounting documents should be attached and analyzed to the file:
- reports of different checks and inspections;
- delivery notes, charge tickets, other documents reflecting transaction of products and payment;
- financial statements (reports delivered to tax office);
- agreements reflecting facts of criminal activity (transportation of products, issuance of goods to distributors, storing products at some place in some amount, etc.)
It is noteworthy that these evidences are not of primary importance to investigation (they do not directly reflect that the crime was committed), but they are necessary to find out all substantial facts of the case and to form the most grounded accusation, detailed description of the criminal activity, its mechanism and ways.
Besides, the question of documentary reflection of the criminal activity is important in view of possible qualification of copyright and adjacent rights violation simultaneously as criminal entrepreneurship, since “unlawfulness” in entrepreneurship needs a documentary proving.
Thus, along with collecting evidences of the very criminal...
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