4.2 The Principle of Legality Depicting the Rule of Law in the Context of
85
e 9: Article 2 in the dissertation mind map.
Consequenceofthe infringement Justificationofthe consequence Interestofthesocietyand meansofinterference Protectionofthelegitimate rightsof anindividual Consistencyofthe enforcementsystem?Equality?
CriminalActCivilAct Punishment theories PreventionRetribution
Privaterightsecured, legalstatecorrected Impartial problem-solver Groundsforcivil liability
Intentionaldamages compensated
Prohibition of unjustenrichment Criminalization principles Groundsfor criminalliability
Principleof legality
Socialcosts evaluation Justifiedobject ofprotection
Ultimaratio
IPRinfringement Investigationby authorities
Investigation and evidence provided by parties
Directingbehaviour
Solvingprivate conflicts
The research questions addressed in the article are as follows: (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 following figure illustrates the article’s key research theme:
87
e 10: Key research theme of article 2.
Principleof legality
Requirementof writtenlegislation
Prohibition of analogyProhibition of retroactivity Prohibition of vagueness
IPR Pr ote ctio n
Defined retrospectively
Interpretative object
Intangible object IPRinfringement criminalization
The article defines the concept of criminalization together with its purposes and limitations in the context of IP law. Similarities and
differences between the Nordic legal systems are recognized, leading to the conclusion that the main interpretations and sub-principles of the principle of legality are functionally equivalent, as is the legislation
technique chosen to criminalize copyright and trademark infringements.169 The article also more specifically recognized both similarities and
differences in the technical execution and wording of the essential elements of the copyright and trademark crime provisions, and pointed out the differences these findings make to the scope of protection.170
The article recognizes the four elements of the principle of legality and analyses their fulfilment through three example elements relating to copyright and trademark. The article reflects on the difficulty of defining the existence of an exclusive right based on these elements to the level of clarity and precision required for criminal legislation.
The article identifies multiple internal references and the blanket criminalization technique combined with inaccurate definitions of the objects of protection as the main problem-causing elements in the field.
These elements result in the laws failing to define key concepts and phenomena with sufficient precision for the perpetrator to be able to assess in advance whether his or her behaviour will break the law. It is argued that it can be questioned whether descriptions of the acts are in fact set down in writing in the legislation at all. All these elements reduce the level of foreseeability attached to the relevant criminal law
provisions.171 The article verifies the conception that analogy and teleological interpretation also widen the sphere of criminalization
169 Tammenlehto 2020, e.g. pp. 18, 27 and 31.
170 Tammenlehto 2020, e.g. pp. 27–28 and 35–42.
171 Tammenlehto 2020, pp. 45–47. Unforeseeability is an expression of arbitrariness. Aarnio 1987, p. 4
regarding the field of IPRs and should not therefore be used in interpretation.172
The article identifies the key aspects of copyright and trademark legislation that are liable to lead to jeopardizing fulfilment of the central foundations of the justice system – i.e. legal certainty and other elements of the rule of law. The article proposes reform of the relevant criminal provisions so that they more accurately define the criminalized
behaviour.173 The following figure outlines the article’s key findings:
172 Tammenlehto 2020, pp. 30–33.
173 Tammenlehto 2020, pp. 45–47.
e 11: Key findings of article 2.
Requirements tofulfil
•Writtencriminallegislation. •Prohibition ofanalogy. •Prohibition ofretroactivity. •Prohibition ofvagueness. Notfulfilled, why?
•Emptyand non-descriptivewordings.Arecriminalactsdefinedinlawatall? •Lackof definition ofconcepts.Doprotectedinterestsexistatthemomenttheconducttakesplace? •Uncontrollableexpansionofscopeofcriminalizationduetodevelopment.Doesthelawcriminalizenon-existentacts? Whyistherea problem?
•Legalsecurity. •Foreseeability. •Opportunityto actaccordingtolawandavoidnegativeconsequences. Needfor accuracy,how?•Limitationofthescopeofcriminalizationtoexistingformsof act andworks. •Moreprecisedescriptionsofacts. •Moreeffectiveuseofothermeasuresthancriminaltoensurereparation.
In respect of the example concerning moral rights, the first problem in criminalizing the infringement of moral rights arises regarding the principle of legality. At the level of specific provisions, criminalization has been achieved through the use of a blanket criminalization technique that divides the description of criminal behaviour into two different provisions.
In addition to this, the wording of the moral rights provisions in the
copyright acts (see figure 7 above) do not describe what type of behaviour fulfils the criteria for violation of an author’s reputation, or his or her artistic dignity or individuality. Achieving foreseeability of criminal law and securing protection of the legitimate rights of the defendant requires more specific description of the acts at issue than the current legislation
provides.174 At this point one might also ask whether criminalization is the correct measure by which to protect moral rights or whether the emphasis should be shifted towards civil measures. Infringement of moral rights may cause the author material and provable harm or damage,175 which could be compensated by applying the rules of tort law. Regarding moral rights infringement, the legislator should have recognized that the concepts of artistic dignity and individualitycannot be defined to the level of accuracy
174 Tammenlehto 2020, p. 32. This is somewhat in conflict with the idea of
technological neutrality behind IPR legislation. This means that one of the aims of Nordic copyright laws is to be capable of answering the challenges and
requirements of digitalization and formation of new types of work without the need for constant modification. Mylly 2017, p. 605; Rognstad 2009, p. 532.
However, I would argue that regarding criminalization this ‘breach of ideology’
should be accepted, for ensuring foreseeability and protection of the legitimate rights of the defendant is more important from a societal perspective than maintaining ideologies.
175 Copyright is divided into economic rights and moral rights, but most material damage is caused by infringing the author’s economic rights. Due to this, moral rights infringements cause damage mostly to the author’s reputation and only indirectly to his or her financial situation, e.g. in the form of lost sales due to diminished reputation. Pihlajarinne 2012a, p. 384 and Tammenlehto 2020, p. 25.
required to satisfy the threshold of criminalization.176 What is left to ponder is whether the grief and suffering caused by the act is of such nature that there is a societal interest in protecting the author from it – i.e.
whether the object of protection is important enough to be protected by criminal law. This question is discussed further later in the dissertation.
Furthermore, similar questions arise in the context of trademark crimes as to the suitability of broad criminal law protection, especially concerning trademarks established through use.177 As described above, the law does not define ‘the when’ and ‘the how’ criteria for the establishment of trademarks through use. The content of certain legal concepts the interpretation of which is key to fulfilment of the grounds for trademark protection are also left undefined. These omissions create accuracy issues in the field of trademark law corresponding to those of moral rights protection handled above, and those of the workthreshold analysed more thoroughly in the second article. On this point, I would argue that criminal liability should be reserved for acts that clearly indicate that the defendant intended to infringe the trademark and exploit the right-holder’s exclusive right and reputation, instead of continuing to maintain the excessively widely drawn current crime provisions at the expense of legal certainty.
176 Jareborg 1988, p. 40; Husak 2016, p. 95.
177 As noted above, the situation is not as problematic regarding registered trademarks as it is concerning trademarks established through use. This, in fact, raises the question of whether the criminal law protection of registered and unregistered marks could or even should differ from each other. The TRIPS Agreement does not require its members to provide for protection of trademark by any other means than through registrations per se. However, it recognizes the protection of well-known trademarks. Meier-Ewert 2020, pp. 60 and 75-76. This may, however, cause equality problems, when essentially similar situations are treated differently, albeit based only on lack of clarity as to the existence of a protected right in the first place. This is especially the case if the court at some point finds that a trademark has been established through use – i.e. a protected exclusive right. Therefore, the suggested solution to narrow the scope of
criminalization in its entirety seems to be a better solution to the problem.
5 The Possibility to Act Differently Enables Criminal Liability
A crime,178 in general, is considered as a violation of some legal norm for which a punishment is authorized. A punishment, as a consequence of crime, means imposing a negative experience or suffering on the defendant together with limitation of civil rights as a consequence of breaking the law, and it always includes societal reproach and
178 Traditionally, the general description of crime in the Nordic countries has been that it is an act that fulfils the essential elements of a crime, is unlawful and indicates the guilt of the offender. Jareborg 2009, p. 33; Andenæs 2016, p. 101;
Frände 2012, pp. 8–10
The basic components of crime vary somewhat between the countries. For
instance, in Finland the basic components are fulfilment of the essential elements, unlawfulness and guilt. See e.g. Koskinen 2009, p. 161 and Frände 2012, pp. 8–10.
Suggestions have lately been made, for instance, in Finland to divide the structure of crime into two categories: grounds for liability and grounds for exemption from liability. See e.g. Tapani – Tolvanen 2013, pp. 3–7; Melander 2013, pp. 76–77, Tapani – Tolvanen – Hyttinen 2019, pp. 3–9. The proposed division of the elements of crime into two or three categories does not, however, change the elements themselves but is more of a matter of their technical organization. See also Tapani 2016, pp. 432–439 and 442. In Sweden there are two basic components of crime:
unlawful act and culpability. Jareborg 1988, pp. 12–13. Norway, on the other hand, divides the components of crime into four categories: First, essential elements of some crime must be fulfilled. Second, there should not be any grounds for exemption from liability. Third, subjective guilt must be proven. Fourth, the
perpetrator must be criminally responsible. Andenæs 2016, p. 101. The contents of the concept of crime in the countries are, however, functionally equivalent and thus comparable.
condemnation of the defendant.179 Punishment and imputation of blame are justified only if the defendant had the possibility to act differently.180
Hence, the starting point is that a person cannot be held criminally liable for behaviour he or she could not have avoided, even if the behaviour in question fulfils the essential elements of a crime. In other words, a person cannot be held criminally liable if he or she was unable to act in
accordance with the law.181 In the Nordic countries this starting point has, among other things, been seen to guarantee legal certainty, and thereby to
179 Lahti 2021, pp. 220, 250; Husak 2016, p. 26; Tapani – Tolvanen 2016, pp. 8–9;
Jensen 2008, p. 300; Minkkinen 2006, p. 522; Lappi-Seppälä 2000, pp. 1–2; Murphy 2007, pp. 115–116; Steiker 2013, p. 195; Jareborg 2000, pp. 436–437; von Hirsch 1983, p. 60; Tammenlehto 2022, pp. 892–893. As punishments worsen their target’s wellbeing through negative experience or suffering, the justification of the use of them is rather problematic. There are two general approaches to justifying the use of punishments: the utilitarian view and the retributivist view. In the utilitarian view, the use of punishments is justified through the promotion of the overall wellbeing of society in the future. When a perpetrator commits an act that is criminalized due to its overall happiness-lowering nature, the use of
punishments is justified because it increases the happiness of others – that is, future overall happiness – to see the criminal pay for his or her actions. The retributivist view justifies the punishment by looking backwards to the wrongful act itself. A perpetrator’s violation of a legal norm is considered as a morally blameworthy act to which the appropriate legal response is punishment. In this view, every moral wrong the prohibition of which falls within the aims of law is an object fit for punishment. Murphy 2007, pp. 118–123; Lahti 2021, p. 250. For further discussion of specific punishment theories in the context of IP law, see Tammenlehto 2022.
180 Hyttinen 2022, pp. 239–240 and 256; Lappi-Seppälä 2009, in the section
’Syyllisyysperiaate; Jareborg 1987, p. 171; Koskinen 2009, in the section Syyllisyys yleisen tunnusmerkistön ainesosana.
181 Jareborg 1988, p. 40; Tapani – Tolvanen – Hyttinen 2019, pp. 340–341; Jareborg 2009, pp. 303–304; Langsted – Garde – Greve 2014, p. 66; Lahti 2021, pp. 114–115.
Nordic criminal justice systems do not recognize vicarious criminal liability.
Tolvanen 2005, p. 187; Tapani – Tolvanen – Hyttinen 2019, p. 340.
satisfy the requirements of the rule of law.182 The possibility to act
differently is twofold: first, it requires that an average diligent person could have acted differently to the way in which the defendant acted in the situation at hand. Second, it means that the defendant has not sought to prevent the consequences of his or her acts with all his or her actual capacity. These elements are not unconditionally separable from each other, but somewhat overlap.183
Assessment of the possibility to act differently requires that the
defendant’s act arises in circumstances where he or she has the possibility and capacity to prevent the commission of a crime by stopping his or her active doing. Paraphrasing Jareborg’s principle of conformity the defendant is free from criminal liability if he or she
1. did not have the ability to follow the law, 2. did not have the opportunity to follow the law.
3. would not have had ability to follow the law, even if he or she had done X that he or she should have done and had had both the ability and the opportunity to do.
4. would not have had opportunity to follow the law, even if he or she had done X that he or she should have done and had had both the ability and opportunity to do.184
Ability in this context indicates the ability to control one’s behaviour.
The defendant in this situation has been incapable of restraining him or herself from deviating from the required level of diligence.185 Opportunity, on the other hand, refers to defect in knowledge. First, the defendant lacks
182 Nuutila 1996, p. 528.
183 Nuutila 1996, pp. 527–528; Tapani 2004, p. 65; Andenæs 2016, pp. 218–219.
184 Jareborg 1988, pp. 40–41; Dubin 1966, pp. 365–366; Jareborg 2009. p. 303;
Nuutila 1996, p. 530; Tapani 2004, pp. 65–66
185 Nuutila 1996, pp. 530–531. This incapability can result from involuntariness, neglect, or psychological disturbance. Jareborg 1988, p. 41; Hyttinen 2022, p. 239.
knowledge of both what he or she is doing and the possible consequences of his or her actions. Second, the lack of knowledge may, though
exceptionally, concern the nature of the act as a prohibited one.186 Regarding IPRs, especially copyright, in the digital environment a third situation of lack of knowledge may also occur. That is when the perpetrator knows what he or she is doing and knows what type of behaviour is in general prohibited but lacks knowledge of what is happening in his or her device, for instance, due to technical error or through some automatic feature.187
Regarding IPR crimes, it may often be unclear whether an exclusive right, and, therefore, an infringement exists in the first place, in which circumstance it is not easy to recognize the need to modify one’s behaviour. Therefore, one might ask if there is a possibility to act differently at all. The following figure illustrates this situation:
186 Jareborg 1988, pp. 41–42; Nuutila 1996, pp. 531–532; Husak 2016, p. 29;
Tolvanen 2022, pp. 292–294.
187 Tammenlehto 2022, pp. 901–902.
97
e 12: Possibility to act differently in relation to IPR crimes.
Act In fr ing em en t Co ns eq uenc e
Theexistenceof anexclusiveright verified. Possibilityto actdifferently Knowledge of actingwrongly (oughttoknow). Maybeknowledgeof awayto actcorrectly.Refrainfrom actingentirely
PresentFuture
It seems especially difficult to define the type of behaviour ‘X’, which would remove the unlawfulness of certain acts. To elaborate the situation, lets return to the example of moral rights infringement. In the example, the identity of the author may or may not remain unknown. Either way, the defendant cannot assess what the author would consider to infringe his or her moral rights – i.e. artistic dignity and individuality – if he or she does not know the author personally and understand his or her personal preferences and likely reactions. This assessment is especially difficult if the act the defendant commits is in general lawful, such as painting a painting (or hanging it on a wall). Second, the defendant cannot
successfully assess the fulfilment of the ‘objective criteria’ either, for their assessment depends somewhat on the views of the court that hears the case188 on the question of what art and artistry189 and, accordingly, artistic dignity and individuality is or can be. In view of this, the defendant cannot be regarded as having had the opportunity to modify his or her behaviour so that it would not be offensive to the author due to absence of
knowledge as to whether certain behaviour would be viewed as offensive and of the ‘X’ that should and could be done to modify such behaviour. The issue of lack of knowledge does not necessarily concern knowledge of what the defendant does or whether it is unlawful but of assessment of the unlawfulness of the situation. The would-be perpetrator is not able to assess the unlawfulness of his or her behaviour without knowing the personality of the author, even if he or she knows exactly what he or she is doing and what acts would in general be considered unlawful. The only way for the perpetrator to refrain from breaking the law seems to be to do
188 Schovsbo – Rosenmeier – Salung Petersen 2018, p. 153.
189 As discussed above in Chapter 2.1 ‘Defining Intellectual Property and Art’, there are, and have been over the years, multiple conceptions of what art or artistry is or can be. No consensus on their content has been achieved even within a given society let alone different cultures. Therefore, it seems implausible that one court could define the content of the concepts exhaustively in any case and perform a just assessment of their violation.
nothing in the first place. In other words, they should refrain from doing anything, even if the action itself is lawful, in order to avoid infringing on another’s exclusive right.190 In other words, they should refrain from expressing themselves or their artistry. This does not reflect the goal of copyright legislation, which aims to promote creativity191 and it seems here that the apparently strong protection offered by the law in fact undermines itself and its objectives.192
As noted above, the achievement of adequate general preventive effect requires clarity on the dividing line between acceptable and unacceptable behaviour. This includes that a perpetrator should be able to ascertain in advance of carrying out a particular action what is allowed and what is prohibited. Based on the presentation above, the possibility to act
differently in respect of the infringement of moral rights seems rather slim because no precise general objective criteria to define what type of
behaviour is offensive exist, nor is there any requirement regarding
knowledge of the identity of the author. This makes it impossible for one to choose to act differently, if one cannot know that the act being undertaken is offensive. Therefore, the criminalization of moral rights infringement cannot achieve the preventive effect sought by it. Due to this, a person should not be held criminally liable for infringing (an unknown) author’s moral rights.
190 The problem is that the essential elements of the offence do not actually indicate what type of behaviour is in question even if they depict the prohibited behaviour by stating that violating the author’s moral rights is criminalized. For a somewhat similar point regarding food offences, see Nuutila 1996, pp. 281–281 and 286.
191 SOU 1956:25, p. 487; HE 32/1984, p. 3; Wager – Watal 2020, pp. 1–4; Pihlajarinne 2013, pp. 1219–1220; Haarmann 2014, p. 40; Oker-Blom 2013, pp. 1357–1358
192 See also e.g. Abbott – Cottier – Gurry 2007, p. 661; Grosse Ruse-Khan 2010, p. 4 and Manta 2011, pp. 498–499 regarding the threats of extensive criminal
enforcement of IPRs.