EMERGING

EMERGING MARKETS:
A Review of Business and Legal Issues
offence in a commercial scale 1
and the offence not connected with commercial use.
Consequently, in accordance with item 2 of article 6 of EU Directive 2004/48/EG, during
realization of offences in a commercial scale the court can decree a decision about granting of
bank, financial, trading documents by an opposite party. In this case, unlike offences, not
connected with the commercial use, the documents which will be required from a credible
offender may not be clearly determined (for example, financial documents concerning
quantity and prices of the realized counterfeit goods, etc.).
Providing of proofs prior to the beginning of legal proceeding as an institute of judicial
law and judicial method of protection of the violated copyrights in accordance with Article 7
of EU Directive 2004/48/EG was entered in the European legislation with the purpose of
granting possibility to the rights holder whose rights are violated or contested to fix proofs of
offence directly at the moment of committing illegal actions or in the shortest time after their
commitment. Thus, the information preserved on counterfeit disks can be quickly destroyed
by their heating, exposing to electric magnetic field, etc. Efficiency of application of civil
legal methods of property copyrights protection directly depends on the maintainance of
proofs of offences, that is why in any case it is impossible to assume elimination of illigal
activity results. Article 7 of EU Directive 2004/48/EG as well as Agreement of TRIPS allows
to arrest counterfeit goods, equipment, and also allows access to land plots and apartments
with the purpose indicated higher. However in this article we do not specify the group of
people in relation to whom backer-up proofs should be used prior to legal proceedings. In our
opinion, legal proceedings should be directed against persons who actually own the proper
proofs.
As A. Trunk justly remarks, application of backer-ups with a purpose of offence
prevention goes beyond providing proofs or providing implementation of future court
decision [11, article 127]. Article 9 of EU Directive 2004/48/EG sets general principles of
1 In accordance with item 14 of preamble of EU Directive 2004/48/EG, on realization of intellectual ownership
rights of 29.04.2004, offence in a commercial scale occurs when a person accomplishes illegal actions for the
purpose of achievement of direct or mediated economic or commercial profit.
Page 101 Volume 1, April 2009