This dissertation concentrates specifically on analysing criminal legislation concerning IPRs – i.e. specific copyright and trademark crime provisions – in the light of the theory of criminalization and justification of punishments, and does not aim to comprehensively analyse the civil enforcement system in the field. This system is referenced, however, in drawing the dividing line between the appropriate use of criminal measures and civil measures.
This dissertation analyses neither the grounds for civil liability nor the general doctrines of criminal law comprehensively. It also omits discussion of the administrative enforcement system in general and the possibilities to utilize it as an additional means by which to enforce IPRs or enhance the current system.
The dissertation recognizes possible difficulties in the field regarding fulfilment of the grounds for criminal liability, such as intent and negligence (or the mens rea element as discussed below), and some procedural guarantees for the protection of the legitimate rights of the defendant, such as the presumption of innocence and the ne bis in idem principle. The focus, however, is more on legislative choices than on the criminal
procedure itself targeting criminal liability per se, in view of which analysis of these difficulties is mainly omitted from the dissertation.
acceptability of the interpretation.26 Criminalization principles and penal theories are attached to the rule of law and depict the ideological values on which the legal system must be built. These criteria are used to assess the legitimacy of the chosen legal rules and their interpretation, but are not applicable per se to solve specific cases.27 Regarding the analysis of these criteria, the knowledge interest of the research is to a degree a reflection on how the criteria of non-arbitrariness are met in the relevant
provisions.28
The dissertation assesses IPR enforcement regulation in relation to the doctrines of the criminal justice system using a twofold analysis: first, through the creation of an assessment framework that consists of
criminalization principles and penal theories – i.e. the grounds that justify the use of criminal law. Second, the study analyses the conformity of IPR enforcement provisions (articles 1 and 2) and their application in case law (article 3) in relation to this framework.29 The research utilizes the created framework to conceptualize the dividing line between IP law and criminal law or, to put it more precisely, the interface between the legitimate and justified use of civil and criminal measures.30
It is tricky to define a specific comparative law method for the research for two reasons. First, the studied fields of law – criminal law and
intellectual property law – differ radically in nature. As the research operates within one legal family and the compared legal systems are very similar, the traditional functional method can be considered somewhat controversial.31 I agree that researching the functional equivalencies of the
26 Aarnio 1987, pp. 12–13, 23; Tuori 2000, p. 307; Smits 2017, pp. 219–222.
27 Aarnio 1989, pp. 186–191; Husak 2008, pp. 3 and 57; Lappi-Seppälä 1998, pp.
1298–1299; Melander 2008, pp. 329, 401–402 and 477; Nuotio 1998, p. 516; Van Hoecke 2002, p. 171.
28 Smits 2017, pp. 219–220.
29 Aarnio 1987, pp. 15–19; Smith 2008, pp. 62–74.
30 Aarnio 1987, p. 20; Van Hoecke 2002, pp. 169–170 and 179–180.
31 Van Hoecke 2015, p. 3–5.
Nordic IPR laws per se would probably not produce any new information as the systems are in practice the same. However, in the field of criminal law the strongly national nature of the field as well as certain fairly strict doctrines concerning the targeting of liability and principles of
interpretation mean that it is necessary to demonstrate that the systems are in fact similar enough to allow for the utilization of similar solutions. In order to show this similarity the application of some elements of the functional method is useful. Even though comparative law has traditionally been considered as a method mostly used in private law research,32 the comparative method can also be utilized in the field of criminal law as between the chosen countries. This possibility derives from their cultural closeness as part of the Nordic legal family, as well as the similarities in legal mentality and values,33 and is concretely shown, for instance, in the similarity of the criminal policies in place in each of the countries. In relation to the focus area of the research this closeness between the chosen legal systems, in terms of principles of criminalization, penal theories and grounds for criminal liability,34 enables the adoption of a functional approach in respect of criminal law.35 For these reasons, it is also important to point out the similarities and differences in the nuances of the national IPR systems.
Second, the knowledge interest of the research operates on a normative level and the research is interested in doctrinal analysis of the chosen
32 Dubber 2019, p. 1277.
33 Zwiegert – Kötz 1998, pp. 45, 277–281; Husa 2013, pp. 270–271. This study does not, however, contain a comprehensive historical review traditional to comparative criminal law, due to the abovementioned reasons, but focuses on critical analysis of the current law. Dubber 2019, pp. 1281 and 1304. It can, though, be seen to include some elements of the historical method, even though it is not the main approach that is used. This is inevitable because of the historical and cultural closeness of the studied countries. Van Hoecke 2015, p. 18–19.
34 Lahti 2021, pp. 108–109; 213–214 and 231; Baumbach 2008, p. 45; Nuutila 1996, pp. 528–529; Tammenlehto 2020, pp. 18–21.
35 Dannemann 2019, pp. 413 and 415.
research theme. The dissertation accordingly utilizes multiple comparative law methods to answer the research questions.36 The dissertation utilizes elements of functionalist comparative law approaches37 in order to
evaluate the criminalization of IPR infringements in the Nordic countries. It focuses on analysing how these societies succeeded in criminalizing such infringements and guaranteeing the effectiveness and just utilization of the entire IPR enforcement system.38 Functionalist comparative law requires the existence of relations between different legal systems. It compares problems in different systems by understanding them as similar, and the legal solutions to them as functionally equivalent. In other words, different legal and non-legal institutions are considered comparable if they are functionally equivalent, which is to say that they fulfil similar functions in different legal systems. The function itself serves to relate different legal systems to each other.Functional equivalence is similarity in difference, for it detects similarities in the legal functions pursued in the targeted legal systems, while the specific means used to achieve those functions in them may differ.39
Functional equivalency (or the functionalist method) is supplemented by the analytical method. The research aims to form a coherent entity of legal concepts and constructions in the interface between the chosen fields of law. It focuses on the rules, doctrinal structures and arguments regarding (criminal) enforcement of IPRs as well as examines their interpretative
36 Van Hoecke 2015, p. 1.
37 Michaels 2019, pp. 347–348. The functional method (or the functionalist comparative law method) consists of many different concepts of functionalism.
These concepts have been divided, inter alia, into finalism, adaptionism, constructivist functionalism, classical functionalism, instrumentalism, refined functionalism, epistemological functionalism, and equivalence functionalism. For further details on the specific content of each concept, see Michaels 2019, pp. 348–
365.
38 Dannemann 2019, p. 403.
39 Zweigert – Kötz 1998, p. 34; Michaels 2019, pp. 3 and 377–379; Husa 2013, pp.
145–147, 150–153; Pihlajarinne 2017, p. 1124 with footnotes.
effects and consequences. In other words, the dissertation analyses the criminalization of IPR infringement in the light of the functional relation of IPRs to society at large.40 The research seeks both to identify the best methods of execution, that is, the best legislative choices made in drafting the studied provisions and to critically examine the legislative solutions adopted in the countries being assessed in the light of the requirements set for fulfilment of the legal functions in question. The aim of the research is not to attempt to unify the laws, to find ‘the better law’ from various options – the one that fulfils its function better than the others it’s
compared against – or to create a new doctrine regarding the carrying out of the functions involved, but to identify the problems affecting the existing law and legal system and suggest solutions.41
The dissertation also operates on the presumption of similarity, which means the presumption that different societies face similar problems and employ functionally equivalent methods to solve these problems. The presumption of similarity does not mean that different societies should have similar legal institutions or seek to resolve or respond to the problems in a similar way, but that the functional relation between
problems and solutions in different societies is similar.42 Regarding Nordic IP laws, the intensive legislative cooperation in the past decades, as well as the relevance of earlier legislative drafts, supports the presumption of similarity.
The auditorium for the research43 is threefold. First and foremost, it is targeted at the legislator. It provides insight into how criminalizations of IPR infringements, and more precisely copyright and trademark
infringements, should be drafted in order to adequately ensure the
legitimate interests of all parties. Second, the research provides important insight to IPR specialists, who may call for stricter enforcement measures
40 Van Hoecke 2015, pp. 13–14; Zweigert – Kötz 1998, pp. 44–45; Michaels 2019, p. 3.
41 Dannemann 2019, p. 410; Michaels 2019, pp. 3 and 382-383.
42 Michaels 2019, pp. 375–376; Pihlajarinne 2017, p. 1126.
43 Aarnio 1989, pp. 279-287.
but might not have adequate insight into certain restrictions and the use of criminal law in general. Third, it provides insight for criminal law specialists, for instance judges, who master the rules of targeting criminal liability but may not be as familiar with certain features of IP legislation that require special attention both in terms of staying within the acceptable limits of criminal law and in securing the parties’ legitimate interests.