Can copyright infringements in a criminal case without prosecution for lack of criminal intent be confiscated?



Recently, due to the epidemic, a large number of goods have been imported from overseas, as well as the number of cases of trademark or copyright infringement seized at the border has increased. Once customs have referred a case to a district attorney’s office, the prosecutor, in addition to reviewing the objective criminal act, must also take into account whether or not the accused has a criminal intent to commit it. . Once the prosecutor determines that there is no subjective criminal intent on the part of the accused, he may then decide not to proceed with the case on the grounds that the suspicion of the offense is insufficient in accordance with Article 252, paragraph 10, of the Code. of criminal procedure. In this case, can the counterfeits be confiscated?

Article 98 of the Trademark Law clearly states that all articles or documents which constitute an infringement of the rights in trademarks, certification marks or collective marks must be confiscated, whether or not such articles or documents belong to the infringer or not. . Therefore, even if the prosecutor does not pursue the case due to insufficient suspicion of an offense, he may then apply to the court for confiscation in accordance with said provision in order to prevent trademark infringements from entering again on the market. Unlike the trademark law, the copyright law does not contain any regulations regarding this absolute obligation to confiscate, which has resulted in the fact that the courts have recently issued several decisions rejecting the prosecutor’s request for confiscate copyright infringements. Indeed, there is a need to review the relevant confiscation regulations and discuss any possibility of redress, as briefly outlined below:

II.Regarding the Copyright Law

With regard to the confiscation of copyright infringements, the provision only deals with copyright infringements that are optical discs. According to article 98 of the law on copyright, in an infringement provided for in article 91-3 and article 91bis-3, an object used in the commission of the infringement, or with a view to the commission of the offense, or a derivative of the commission of the offense, may be forfeited, whether or not it belongs to the perpetrator. This provision deals only with the infringement of the law on copyright relating to optical discs, that is to say “a person who commits the infringement referred to in article 91-2 by reproducing on a optical disc with the intention of selling or renting it ”(Article 91-3 of the Copyright Act) and“ a person who distributes or intends to publicly distribute displays or possesses a copy knowing that it infringes economic rights and that the reproduced copy is an optical disc (article 91bis-3 of the law on copyright).

Today, fewer and fewer people are using optical discs. If the copyright infringement is not an optical disc, for offenses specified in other provisions of copyright law, such as “offenses involving violation of section 91bis-2 of copyright law and the reproduced copy is not an optical disc “, the confiscation regulations in this regard remain subject to the relevant provisions of the Criminal Code.

III. With regard to the Penal Code and the Code of Criminal Procedure

Articles 38-1 and 38-2 of the penal code respectively provide that “contraband is confiscated, whether or not it belongs to the perpetrator of the offense” and “a thing used in the commission or the preparation of the commission. of an offense or a thing derived or acquired by the commission of an offense may be confiscated only if it belongs to the perpetrator of the offense; if there are special provisions, those special provisions shall prevail. Since copyright infringement is not always smuggling and the prosecutor ruled that the suspicion of an infringement was insufficient, the confiscation rule provided for in the two aforementioned provisions was not applicable when the prosecutor decided not to continue the case under article 252 (10) of the Code of Criminal Procedure.

Article 259bis of the Code of Criminal Procedure provides that for cases which have been pronounced with a view to a dismissal or an adjournment of proceedings pursuant to article 253 or article 253bis, the prosecutor may submit to the court a separate request for confiscation of the objects referred to in articles 38-2 and 38-3 as well as the penal gains provided for in article 38bis-1 and 38bis-2 of the same code. However, this provision applies specifically to cases where the items seized may constitute an offense but are allowed to circulate because the prosecutor decides not to proceed with the case or to defer the prosecution at his discretion, which would undermine social benefits. as well as the rights and interests of the copyright owner. However, this provision is not applicable to offenders whose presumption of offense is insufficient provided for in article 252 (10) of the Code of Criminal Procedure. Such an event results in circumstances in which “copyright infringing reproductions other than optical discs” cannot be confiscated through criminal proceedings. The occurrence of the above results in “reproductions infringed by copyright, other than optical discs” under Article 252 (10) of the Code of Criminal Procedure cannot be confiscated by criminal proceedings, this which would significantly create a loophole through which illegally reproduced articles are allowed to enter the market.

IV. Regarding the anti-smuggling customs law

Since copyright infringements are seized by customs at the border, once the criminal proceedings are closed, customs can separately examine whether the act of the importer violates the relevant administrative regulations. It can refer to articles 26-1 and 26-2 of the law on administrative sanctions providing that “if a single act constitutes both an offense or criminal offenses as well as a breach of administrative law obligations, he is punished by criminal law; however, an administrative sanction may be imposed additionally in the event that the act is punishable by any other type of administrative sanction or that no confiscation is ordered by the court on the things which may be confiscated due to the act” and “in the case of an act described in the previous paragraph for which a final decision not to prosecute or deferred proceedings are pronounced, or on which is pronounced a final judgment of acquittal, exemption from prosecution, incompetence, non-judgment, no provisional measures, dispensation of sentence or suspension of sentence, a sanction may be imposed under the provisions relating to the breach of an obligation under administrative law. “

According to article 39bis of the anti-smuggling customs law, where the import or export of cargo, other than genuine goods imported at the same time, who have been declared in violation any patent right, trademark right or Copyright, the importer or exporter in question is, unless otherwise specified in other laws and regulations, imposed a fine not exceeding three times the value of the cargoes, and the cargoes will be confiscated.Therefore, in a case specified in Article 252 (10) of the Code of Criminal Procedure where confiscation cannot be carried out by criminal means, the right holder must remind customs to impose penalties and declare the confiscation, at its discretion. In particular, if the copyright infringements have been transferred from customs to the court loot storage warehouse, it is even more important to remind the prosecutor to write a letter asking customs to make any arrangements. follow-up provided by law when the criminal proceedings for the non-prosecution decision are closed, in order to implement the customs obligation to protect intellectual property rights at the border.


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