Section 30 of the Cybercrime Code Act 2016 completes the Act’s trio of intellectual property offences, after section 28 and section 29.
Section 30
commits an act or omission which contravenes the Patents and Industrial Designs Act 2000 or any other law relating to patents and industrial designs, is guilty of a crime.
Penalty: natural person — imprisonment up to 15 years; or a fine up to K100,000; or an ICT prohibition for the term of imprisonment plus two years; or all or any of them. Body corporate — a fine up to K1,000,000.
The widest of the three IP offences
| s 28 copyright | s 29 trade marks | s 30 patents and designs | |
|---|---|---|---|
| Conduct | Infringes, authorises, facilitates or enables | Sells or exposes for sale | Any act or omission contravening the Act |
| Mental threshold | Knowingly and repeatedly | Knowingly or repeatedly | Knowingly or repeatedly |
| Rights covered | Copyright and neighbouring rights | Registered trade marks | Patents, utility models, industrial designs |
| Penalties | Identical — 15 years, K100,000, K1,000,000 corporate, ICT prohibition | ||
Sections 28 and 29 identify particular conduct — infringing, authorising, facilitating; selling, exposing for sale. Section 30 identifies none. It criminalises any act or omission contravening the Patents and Industrial Designs Act 2000.
That is a very wide provision. The 2000 Act contains not only the exclusive rights of a patentee and a design owner, but administrative and procedural requirements as well — and on the words of section 30, contravening any of them, using an electronic device, knowingly or repeatedly, is a crime carrying 15 years.
The word “omission” extends it further still, to failures to do what the 2000 Act requires.
How far a court would read the section to reach purely administrative contraventions has not been decided. The heavy maximum, and the general principle that penal provisions are read strictly, both point towards confining it to substantive infringement.
Patents, utility models and designs
The Patents and Industrial Designs Act 2000 provides for:
- Patents — for inventions that are new, involve an inventive step, and are industrially applicable. The patentee has the exclusive right to exploit the invention.
- Utility model certificates — a shorter, lower-threshold form of protection for incremental innovation.
- Industrial designs — protecting the appearance of an article: shape, configuration, pattern, ornament.
All three are registered rights. As with section 29, there is no offence without a registration to contravene.
What makes it an online offence
Patent and design infringement is characteristically a physical activity — making, importing, selling an article. So what does section 30 add?
Three things:
- Digital designs. A registered industrial design can now be reproduced as a CAD file and distributed electronically. Circulating the file, or manufacturing from it, involves an electronic device.
- Online offering. Advertising or selling an infringing article through a website or marketplace is an act contravening the 2000 Act, done using an electronic device.
- Software-implemented inventions. Where a patent covers a process implemented in software, working the invention is itself use of an electronic system.
Where none of that is present — a purely physical infringement, with no electronic element — section 30 has no application, and the remedies are those in the 2000 Act itself.
In practice
- Register the right. Patents, utility models and designs must be registered with the Intellectual Property Office of Papua New Guinea before section 30 can be engaged.
- Civil remedies remain primary. Injunctions, damages and delivery up under the 2000 Act are what most rights owners actually want. Section 30 provides leverage and a route to police investigation.
- Investigation powers follow. Because section 30 creates an offence under the Act, the Part IV powers become available — production orders, preservation notices, restraining orders.
- Businesses should audit. Given the breadth of “an act or omission which contravenes”, a business manufacturing or distributing goods in Papua New Guinea should satisfy itself about freedom to operate.
- Not triable summarily. Sections 28, 29 and 30 are all absent from Schedule 2. See summary trial.
See also how cybercrime and copyright law overlap and unlawful advertising under section 31.
Sources
- Cybercrime Code Act 2016 — ss 2, 28, 29, 30, 31, 35, 36, 38, 48; Schedule 2
- Patents and Industrial Designs Act 2000
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.