Buailteachd eucorach IP: cuin a thig connspaid theicneòlais gu bhith na chùis eucorach?

A civil intellectual property (IP) dispute becomes a criminal case in the Netherlands only when the infringement is intentional and serious enough for the Public Prosecution Service (Openbaar Ministerie, OM) to prosecute. The main exception to the “civil first” approach is large-scale counterfeiting or piracy committed as a business: there, the Supreme Court accepts prosecution even if the rights holder could also sue.

For founders and directors of technology companies, the real question is not whether conduct could in theory be prosecuted. It is what turns an ordinary licensing or patent conflict into a criminal file, and when the person behind the BV can be charged alongside the company. This article explains both under Dutch law as it stands in October 2026.

Which criminal provisions apply to IP infringement?

Three provisions do most of the work, and all three require intent. Negligence or a genuine disagreement about the scope of a right is not enough.

• Article 31 of the Copyright Act (Auteurswet) makes intentional infringement of someone else’s copyright an offence; the penalty increases when the infringement is committed as a profession or business.
• Article 337 of the Criminal Code (Wetboek van Strafrecht, Sr) covers false and unlawfully used trade marks and the import, sale, delivery and stocking of goods bearing them. This is the provision used against counterfeit hardware and packaging.
• Article 79 of the Patents Act 1995 (Rijksoctrooiwet 1995) makes intentional patent infringement an offence.

Two further sets of rules matter for tech businesses. The Copyright Act also penalises the circumvention of effective technical protection measures and the trade in tools made for that purpose, such as licence-key generators. And the Criminal Code offences on computer intrusion (computervredebreuk) and on handling data obtained that way often appear next to IP charges when source code or a database has been taken from a former employer or competitor.

How do the civil route and the criminal route relate?

Almost every IP conflict is fought in the civil courts, and criminal law is a last resort (ultimum remedium). The rights holder claims an injunction and damages; the Copyright Act provides compensation (Article 27), surrender of profits made through the infringement (Article 27a) and the handing over or destruction of infringing goods (Article 28).

In IP enforcement cases the Code of Civil Procedure lets the winning party recover its full reasonable legal costs, not just the usual fixed scale. That makes the civil route expensive for an infringer who loses, and it is one reason why rights holders rarely need the criminal route.

The OM works under its instruction on IP fraud (Aanwijzing intellectuele-eigendomsfraude). Its starting point is that civil enforcement by the rights holder comes first. Prosecution is reserved for cases in which the public interest is at stake, such as large-scale counterfeiting and piracy committed in a trade or business that disrupts the market.

What turns a civil dispute into a criminal one?

In practice three factors decide: intent, scale and public interest. Intent is the legal element that must be proven; scale and public interest determine whether the OM actually prosecutes.

Scale is usually the visible trigger. A developer with a licensing problem around one third-party library is not a candidate for prosecution. A business that sells unlicensed software keys to hundreds of customers, or a distributor importing devices with another manufacturer’s brand, is. Repeated conduct after a warning or after a civil judgment weighs heavily, as does an organised structure with several participants or a cross-border element.

Public interest turns on whether civil enforcement can deal with the harm. In its judgment of 18 April 2017 (ECLI:NL:HR:2017:700), about the trade in counterfeit branded perfume under Article 337 Sr, the Supreme Court (Hoge Raad) rejected the argument that the OM should have been barred because civil enforcement had priority. The Court of Appeal had found that the conduct was large-scale counterfeiting in a business that disrupted the market, which falls within the exception in the OM instruction.

What does conditional intent mean, and what does a warning letter change?

Intent in Dutch criminal law includes conditional intent (voorwaardelijk opzet): knowingly accepting a substantial chance that the prohibited result will occur. Nobody needs to have set out to infringe; it is enough that the risk was real, known and accepted.

That is why a cease-and-desist letter changes your legal position, even when the claim in it is weak. Before the letter, a founder can credibly say the risk was not apparent. After it, the question is what you did with the information. A documented assessment of the claim, legal advice on the scope of the right, a design change or a licence taken while the dispute runs all point away from conditional intent. Silence, a dismissive internal email and continued growth of the disputed feature point towards it.

The reverse also holds. A reasoned opinion that a patent is invalid, or that your software falls outside its claims, shows that the risk was assessed rather than accepted. Where the legal or technical position is genuinely arguable, intent is hard to prove, which is why real validity disputes stay in the civil courts.

When can a founder be prosecuted personally?

A founder or director can be prosecuted as the person who actually directed the offence (feitelijk leidinggever) under Article 51 Sr. Most tech businesses operate through a BV, and Article 51 Sr allows both the company and the individuals who ordered or directed the conduct to be prosecuted.

The Supreme Court set out the framework in its overview judgment of 26 April 2016 (ECLI:NL:HR:2016:733). First, the offence must be attributable to the company. Directing it can then consist of active conduct, of a general policy whose result was unavoidable, or of failing to stop conduct you were competent and reasonably obliged to prevent. You must at least have knowingly accepted a real chance that the prohibited conduct would occur. Being a director is not enough on its own, and having no formal position is not a defence.

For a tech company this means: the founder who decided to ship the disputed feature, who received the warning letter and chose to ignore it, or who left a known licensing problem unresolved while the product scaled, is exposed in a way a passive shareholder is not. Under the same judgment, the OM may prosecute the director even if it does not prosecute the company.

Is a platform liable for content uploaded by users?

A platform that only stores user content is in a different position from one that supplies infringing material itself. Article 6:196c of the Dutch Civil Code (BW) exempts a hosting provider from liability if it does not know about the unlawful content and removes it promptly once it does; the EU Digital Services Act sets out how notices must be handled.

For services whose main purpose is sharing large amounts of user-uploaded content, Article 29c of the Copyright Act goes further. Such a provider is itself liable for making works available, unless it shows it made best efforts to obtain a licence, made best efforts to keep specific works offline once the rights holder supplied the information, and acted quickly on notices. The provider must also offer a complaints procedure with human review.

Criminal exposure arises when inaction becomes a choice: a service that earns from infringing material, knows which material it is and does nothing is no longer a passive host. Our overview of the Còd giùlain Duitseach airson fios a thoirt seachad agus a thoirt air falbh explains what an adequate procedure looks like.

Which defences are available?

The first defence is lack of intent. Legal advice obtained before the conduct, a licence you reasonably believed covered the use, or a documented and arguable reading of the right all show that the substantial chance was not accepted. You can be wrong about the scope of a patent without having been criminally reckless about it.

The second is a licence or consent. A valid licence or written permission removes the infringement, provided it covers the actual use, territory and period. Open source licences need particular care, because their obligations are conditions of the licence: see our article on the cead bathar-bog stòr fosgailte anns na Tìrean Ìsle.

The third is a statutory exception in the Copyright Act, such as the press exception (Article 15), quotation (Article 15a), education (Article 16), incidental use in a report (Article 16a) and parody, caricature and pastiche (Article 18b). Each has its own conditions, and they rarely cover a commercial product feature.

What should you check as a founder or director facing a claim?

• Which specific right (copyright, trade mark, patent) is relied on, who owns it and whether it is still valid.
• Whether your product actually falls within that right, and whether you hold a licence that covers the use, territory and period.
• Who in the company received the warning letter and what was decided, with dates.
• Whether the disputed feature can be changed or paused while the dispute runs, and at what cost compared with a licence.
• Whether any source code, data or customer lists came from a former employer, which can add a computer-intrusion or trade-secret angle.

Dè bu chòir dhut a sgrùdadh mar neach-gleidhidh chòraichean?

• Whether you can prove ownership and registration of the right on the date of the infringement.
• Whether the infringement is intentional and large-scale enough to fall within the OM’s priorities, or whether civil enforcement is the realistic route.
• Which civil claims fit: injunction, damages (Article 27 Copyright Act), surrender of profits (Article 27a) or handing over of goods (Article 28).
• Whether you have evidence of earlier warnings, so that later intent can be shown.
• Whether the platform involved has a notice-and-takedown procedure you can use first.

What should you do when a claim arrives?

Treat a cease-and-desist letter as the moment the record starts. Acknowledge it within the period stated, ask for the specific right and the specific conduct relied on, and say when you will respond in substance.

Then assess the claim and record that assessment, together with the advice it is based on. If the claim has force, take a licence, change the implementation or withdraw the feature. If it does not, say so with reasons and keep operating on that basis. What is hard to defend is continuing unchanged while saying nothing. An IP audit of third-party libraries, brand elements and patent freedom to operate is worth most before launch; for the wider picture, see our overview of Lagh IT anns na Tìrean Ìsle.

What can we do for you with criminal IP risk?

Ar luchd-lagha ann an lagh eucorach and IT law work together on IP conflicts that carry criminal risk.

• We review the cease-and-desist letter and the right relied on, and give a written assessment of civil and criminal exposure.
• We draft your response to the rights holder and build the record that shows how the risk was handled.
• We assess whether you as founder or director could be seen as the person who directed the conduct under Article 51 Sr.
• We assist the company and the individual during police interviews and in criminal proceedings.
• We set up notice-and-takedown and licensing procedures for your platform.

Geàrr-chunntas

• IP infringement is a criminal offence only if it is intentional (Article 31 Copyright Act, Article 337 Sr, Article 79 Patents Act 1995).
• The OM gives priority to civil enforcement but prosecutes large-scale counterfeiting and piracy in a business (ECLI:NL:HR:2017:700).
• Conditional intent is enough; how you respond to a warning letter largely decides whether it can be proven.
• Founders and directors can be prosecuted personally as the person who directed the offence (ECLI:NL:HR:2016:733).
• Platforms keep their protection only if they act on notices; Article 29c Copyright Act sets extra duties for large sharing services.

Ceistean Àbhaisteach