On 1 July 2015, New Law 1/2015, came into effect. The changes, which broaden the scope of criminal intellectual property offences are relevant to all industries for whom IP is a major concern. They will be of particular relevance to the fashion industry in its fight against counterfeiters and street sellers.
The new code will increase prison sentences and, in some cases, eliminate fines. Time will tell whether these measures will have the intended dissuasive effect, or if increasing fines instead of prison sentences would have been more effective.
Further, the code introduces a number of new terms such as "street sale", "occasional sale" and "characteristics of the perpetrator". It will be for the courts to determine how these should be interpreted. The main developments in relation to intellectual property are:
- Expansion of the what can be protected: literary, artistic, or scientific performances or demonstrations, as well as digital copies of works, are now protected.
- Infringement: it is now an infringing act to manufacture, produce, or import a product incorporating a distinctive sign which is identical or similar to an existing sign. It is also an infringing act to offer, distribute, commercialize wholesale, or store such goods. Furthermore, the new law makes it a criminal offence to offer, distribute, or commercialize infringing products for retail purposes.
- Subjective element: The subjective element of "for profit" is replaced by "in order to obtain a direct or indirect economic benefit." Likewise, the idea of benefit obtained or which could have been obtained – for aggravated crimes and "super attenuated" crimes– is also included. Similar changes are made to the section of the code relating to industrial property.
- Newly defined crimes
- The unauthorized economic exploitation of a protected work or performance or demonstration in any manner other than reproduction, distribution, and public conveyance is now a crime.
- Web sites with links: an information society service provider who is seeking economic benefit to the detriment of a third party, grants and facilitates access to protected third party work in an active manner and in a non-neutral way beyond merely technical treatment (for instance and particularly by providing ordered or classified lists of links to works and content) without authorization will be deemed an "active, non-neutral intermediary", and will be subject to a prison sentence of six months to four years and a daily fine.
- Hacking: facilitating a crime by circumventing a technical measure put in place to restrict access or prevent infringement is now a crime.
- Minor infringement: The distribution or commercialization through street vending or occasional sale is defined as a minor offence, regardless of the gain to the infringer. Prison sentences range from six months to two years Whether the infringement is minor or not will depend on the profit lost as well as looking at the infringement itself. The law does not specify what loss of profit makes a minor infringement, therefore this will be a question for the courts (note that the previous limit was €400, indicating that minor really does mean minor). Similar changes are made to the section of the code relating to industrial property.
- Serious infringement: A range of circumstances must be taken into account in assessing the seriousness of infringement, including the number of counterfeit products sold, an account of profits made by the infringer, and also future profits which could have been made. Similar changes are made to the section of the code relating to industrial property.
- New remedies: Depending on the circumstances, the court may order that the infringing products be recalled, that a service providers suspends its own service, or that it blocks access to a designated website.
- Changes to penalties: In general, prison sentences are increased and fines are reduced. Similar changes are made to the section of the code relating to industrial property.