Abstract
The principle of legality limits criminalisation in the Nordic countries. The purpose of the principle is to uphold the legitimacy of the penal authority of the state and to protect the rights of an accused by ensuring the clarity and foreseeability of the criminal law. The Nordic IPR crime provisions are extensive but determining the limits of criminalisation from them is difficult. This article focuses on the on the phrasing and style of the current Nordic copyright and trademark offences and analyses the extent to which these provisions fulfil the requirements of the principle of legality. Particular problem-causing elements in this legislation are multiple internal references and a blanket criminalisation technique combined with inaccurate definitions of objects of protection. Attention is given to three problematic aspects in the fields of copyright and trademark: copyrighted work threshold (teoskynnys/verkshöjd), moral rights, and establishing trademark through use.
Highlights
In the Nordic countries[1], criminalisations must fulfil certain criteria in terms of criminalisation principles.[2]
There are two main research questions: 1. How do the current Nordic copyright and trademark offences fulfil the requirements of the principle of legality? 2
How could these offences fulfil the requirements of the principle of legality better? The study will show how the phrasing and style of the offences in question cause just such application and legal protection issues that the principle of legality is designed to prevent
Summary
In the Nordic countries[1], criminalisations must fulfil certain criteria in terms of criminalisation principles.[2]. IPRs can be used simultaneously by many users without one use affecting the other or diminishing the value of the used object.[29] This increases difficulties of fitting them into the existing criminal law system, for the system has been created from the perspective of traditional concrete property objects.[30]. This means approaching the matter from the starting point that the right-holder has the exclusive right to decide about the use of the IPR and that all use without the right-holder’s consent is presumptively infringing.[31] This approach has mitigated over the years; traces of this ideology are still visible, e.g., in the crime provisions regarding IPRs. This article studies copyright and trademark offences in the Nordic countries from the perspective of the principle of legality.
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