Ex officio prosecution of intellectual property crimes

On April 2010, the House of Deputies passed an amendment bill in order to reform both the Federal Criminal Code and the Industrial Property Law in order to establish the ex officio prosecution of some criminal offenses against intellectual property rights. This bill is the result of a lengthy parliamentary procedure which started in April 2008 at that House with a swift vote. In April 2009, the Senate passed the project with minor modifications, and finally the bill was definitely passed by the House.

The amendment to the Industrial Property Law consists of an additional sentence to article 223 bis.

Article 223 Bis. Shall be imposed for two to six years in prison and a fine from one hundred to ten thousand days of the general minimum wage in the Federal District, to those who sell to any end user in the streets or in public places, in a malicious way and with the intent of commercial speculation, items bearing counterfeit trademarks protected by this Act. If the sale takes place in commercial establishments, or in an organized or permanent manner, they are subject to the provisions of sections 223 and 224 of this law. This crime will be prosecuted ex officio.

We must warn that only the sale in streets or public places of items bearing counterfeit trademarks will be prosecuted ex officio. The article also states that the seller has to sell those items on a commercial scale and with ill intent. Trademark counterfeiting per se will not be prosecuted ex officio.

Regarding the Federal Criminal Code the scope of the amendments is far reaching. The new article 429 will be as followse:

Article 429. The offenses set forth in this title shall be pursued ex officio, except as provided in Article 424, section II and 427.

With this article most of the punishable criminal offenses against intellectual property rights (copyrights) will be prosecuted ex officio. These punishable criminal offenses are:

a) The use with ill intends and on a commercial scale, and without the corresponding authorization, of works protected by the Federal Copyright’s Law.

b) The production, reproduction, introduction to the country, storage, transportation, distribution, sale or lease of works, phonograms, videograms or books, protected by the Federal Copyright’s Law, with ill intent and on a commercial scale and without the given authorization from the copyright holder.

c)The knowingly contribution or furnishing of any form or raw material destined for the production or reproduction of works, phonograms, videograms or books, protected by the Federal Copyright’s Law, with ill intent and on a commercial scale and without the given authorization from the copyright holder.

d)The manufacture of any circumvention device.

e)The malicious sale in public places to final consumers, with the intent of commercial exploitation, of unlawful copies of works, phonograms, videograms or books.

f) The knowingly and unauthorized commercial exploitation of any performance or interpretation.

g)The knowingly publication of a work substituting an author’s name for another.

h) The manufacture, import, sale or lease of any device or system to circumvent an encoded satellite signal, without the authorization of the legitimate distributor. It also includes, any attempt with intent of commercial exploitation to circumvent an encoded satellite signal.

This amendment bill has been published in the Official Gazette of the Federation on June 28th, 2010.