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| ------ [[http://www.ipred.org/MainPage Introduction]] [[http://www.ipred.org/analysis Analysis]] [[http://www.ipred.org/howto How To]] [[http://www.ipred.org/factsheet Fact sheet]] [[http://www.ipred.org/download Downloading]] |
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| = European Commission exceeds competence with criminal measures on infringements of "intellectual property" rights = | ------ |
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| = The Criminal Measures IP Directive: Criminalizing the industry = ''The European Commission has proposed a [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en directive] to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.'' |
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| The European Commission has proposed [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en a directive to criminalise infringements of "intellectual property rights"] ("IP-rights"), such as patents, copyright and trade marks. The stated aim is to combat "piracy". While massive infringements on for instance copyright are indeed a problem, the directive itself is a bigger problem. Due to very weak definitions, the directive does not only criminalises pirates, but also companies that are not pirates. And even people who share files on the internet, on a not for profit basis, can be treated as organised criminals. You better watch what your kids our doing with your computer. | A badly drafted Commission proposal was matched by badly drafted European Parliament amendments, and an amendment changed after the vote. The proposal is now in the hands of the Council. |
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| Should severe infringements of "IP-rights" go unpunished? Will Europe become a pirate continent without the directive? No, in all European countries copyright piracy and trade mark counterfeiting are already forbidden. Unlike the directive, these national laws are carefully balanced. Also, companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail. | Behind closed doors the EU, US and Japan negociate an Anti-Counterfeiting Trade Agreement (ACTA), with much the same content, or even worse. See our [:acta:ACTA] page. |
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| With its weak definitions, the directive distorts carefully balanced national procedural law systems. | ---------- |
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| === Commission withholds key study on criminal measures from European Parliament === * [http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament Commission withholds key study on criminal measures from European Parliament] === Official Journal of the European Union publishes corrupted text === ==== Update: In a letter to MEP Eva Lichtenberger, the President of the European Parliament admitted a mistake was made. The text will be corrected. ==== Adopted amendment 15, excluding parallel importation, is not incorporated in the consolidated text. MEP Eva Lichtenberger wrote the President of the European Parliament a letter. |
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| [http://www.heise.de/newsticker/meldung/100175 Heise has the story.] | |
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| Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. The first question to be asked is whether we want this. Should we want a Union with a democratic deficit to write our criminal laws? Our answer is no, we believe only countries have enough legitimacy to make criminal laws. | [http://action.ffii.org/ipred2/Mistake_in_EP_provisional_consolidated_text_Criminal_Measures_IP_directive The FFII has the analysis] |
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| Does the Community have the competence to make this directive? The Dutch Parliament [http://www.ipred.org/NlParl060629 unanimously decided the Commission exceeds it competence] with this directive. And Donner, minister of Justice for the Netherlands, was not pleased too. He [http://wiki.ffii.org/IpredDonner060428En pointed out] that harmonisation of penalties should only be done if there is a real EU interest. The [http://www.ipred.org/Hilty only legal ground] for a directive like this, a harmonisation of criminal measures, is a distortion of trade, i.e, if the non-harmonised state leads to a competitive advantage of member states having lower penalties. The Commission does not even try to make that case. | Despite formal objections raised on 4 December 2007 by MEP and shadow rapporteur Eva Lichtenberger the Official Journal of the European Union published the [http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament controversial and contested version]. See the second part of the PR. |
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| [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:074E:0527:0533:EN:PDF The Official Journal of the European Union] | |
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| === Coalition report on the European Parliament vote === Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive. |
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| The Commission made a severe faute passe in a sensitive field. The proposal should meet a flat rejection in first reading in the European Parliament - in any parliament. | [http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses,_Consumers,_Innovators FFII press release] |
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| In April 2006 the European Commission [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en announced the directive.] | [http://action.ffii.org/ipred2/Report_on_EP_vote FFII/BEUC/EBLIDA/EFF Coalition report on the vote] |
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| === Carte Blanche Criminal Law === Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive. |
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| [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) | Take action: [http://www.copycrime.org www.copycrime.org] |
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| The directive is an amended version, [http://www.ipred.org/history see the History] | Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states). |
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| == Main points == | Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison. |
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| Do we want European criminal law? Does the Community have competence? Are the subsidiarity and proportionality tests made? | [http://www.ipred.org/april2007 read more] |
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| == Scope == | === Legal Affairs Committee washes hands in innocence === The European Parliament Legal Affairs Committee [http://action.ffii.org/ipred2/JURI_Tabled_Amendments voted] on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place? |
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| The directive includes all "IP-rights", "at least" 11. As we saw above, copyright piracy and trade mark counterfeiting are already forbidden in all European countries. And for some other rights, like patents, criminal measures will have an adverse effect on competion and innovation. | [http://www.ipred.org/legalaffairs07 read more] |
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| Patents have to be taken out. [http://wiki.ffii.org/Ipred2GovLtrsEn FFII:] "It is in practice impossible to write and sell software products without certainty that your product does not violate one of the 65,000 software or business method patents granted by the European Patent Office." [http://wiki.ffii.org/IpredEp051122En Others] protested criminalisation of patent infringement too. | === The Prosecution Paradise Directive === A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls. |
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| No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime | [http://www.ipred.org/prosecutionparadise read more] |
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| == Elements of a crime == | === We do not want our kids to be criminals - just for enjoying a videoclip on YouTube === ==== Legal Affairs committee votes on criminalising downloading ==== Monday Februari 26 and Tuesday Februari 27, 2007, the European Parliament's Legal Affairs committee will discuss and vote on a proposal by Mr Manders, MEP, to [http://www.ipred.org/download criminalise downloading]. |
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| The directive would make all intentional commercial scale infringments of "intellectual property rights" a criminal offence. But not all intentional commercial violations of these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. |
[http://action.ffii.org/ipred2/JURI_Tabled_Amendments The proposal was rejected.] |
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| Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] | ---------- [[BR]] |
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| "As a matter of fact, a harmonisation of IP criminal statutes can be justified from the point of view of the principles of subsidiarity and proportionality only in connection with actions by which the following elements of a crime are fulfilled cumulatively: | = The Criminal Measures IP Directive: European Commission criminalises the industry = ''The European Commission has proposed a [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en directive] to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.'' |
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| 1 Identity of the exploited object of protection (the good takes on characteristic elements of a protected product or label in a targeted and unmodified fashion – construction, assembly, etc.) | === Commercial infringements === Beyond clear cases of piracy, it is impossible to tell in advance whether an act is an infringement or fair competition. On a daily basis companies try out the boundaries of "IP-rights". Is this product a look alike? Is this copycat or will the patent be invalidated? Is this work an independent recreation? Companies reach agreements or fight it out in civil courts. If a right was indeed infringed, damages are paid. This is a fair process. Adding criminal sanctions to this fair process creates a big threat potential that inhibits the desired freedom to act in the market. |
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| 2 Commercial activity with an intention to earn a profit | === Bizarre consequences === By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. It is impossible to write software without violating patents. A whole industry will be criminalised. Microsoft has been violating many patents, and had to pay huge damages. With this directive, we could see Bill Gates in prison. Even companies which merely use properly licensed software are criminalised, since such use is intentional, commercial scale and can infringe on software patents. And people who share files on the internet, on a not-for-profit basis, can be treated as organised criminals. You better watch what your kids are doing with your computer. |
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| 3 Potential to cause considerable damage | === Superfluous === To combat piracy the legal means are already installed. What is actually needed is better coordination between countries. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. Unlike the directive, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems. |
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| 4 Intent or contingent intent (dolus eventualis)" | === Carte blanche === An other bizarre aspect of the proposal is that is has an open end: all existing and future "IP-rights" are covered. It is a carte blanche. Seen this misguided, superfluous and outrageous directive, is there anyone who wants to give the Commission carte blanche? |
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| === No competence === Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. In our opinion, only countries have enough legitimacy to make criminal laws. The Dutch Parliament unanimously concluded the [http://wiki.ffii.org/IpredNlParl060629En Commission exceeds its competence] with this directive. |
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| Note these are the minimal elements. It would be better to define them more sharply. The Commission proposal does not even meet the minimal elements. Since the stated aim of the directive is to combat "piracy", the fourth requirement should be "criminal intention", not "Intent or contingent intent". | ---------- |
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| == == == | == Conclusion and analysis == The directive has to be rejected: |
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| Full name: | * it is misguided, superfluous and outrageous * the Community lacks legitimacy and competence If not rejected, member states should take the directive to the European Court of Justice. A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question. For conclusion and analysis see our [http:analysis analysis page]. ---------- == Full name == |
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| [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) | COM(2006)0168 |
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| [http://tinyurl.com/9djqm EU docs] | C6‑0233/2005 |
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| [http://www.ipred.org/2005 the 2005 proposals] | 2005/0127(COD) |
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| 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) | * [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf English] More translations will be available later on. Change "en" twice in the link for translations. |
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| Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] | * [http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf French] * [http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf German] * [http://tinyurl.com/9djqm Council documents on the subject] * [http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=193131#381074 Commission] * [http://preview.tinyurl.com/ytfdrd Council Substantive Criminal Law Working Groups' agenda] * [http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=COPEN&dd_DATE_REUNION= COPEN] * [http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=JAI&dd_DATE_REUNION= JAI] * [http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=DROIPEN&dd_DATE_REUNION= DROIPEN] ---------- |
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[http://www.ipred.org/Hilty Hilty:] 4 basic elements [http://wiki.ffii.org/Ipred2GovLtrsEn FFII: Call on the 25 Governments to remove criminal sanctions in case of patent infringement] [http://wiki.ffii.org/JuriHearing060131En Hearing 31st Jan. 2006] [http://www.ffii.org/~ante/FFII-ipred051127.pdf FFII letter Nov 27th] [http://wiki.ffii.org/IpredEp051122En European Parliament hearing 22 November 2005] [http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk] [http://wiki.ffii.org/Ipred2En FFII] [http://plone.ffii.org/Members/coordinator/FFII%20UK%20IPRED2%20consultation.pdf/download FFIII-UK] [http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSFE] [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal] Reinier Bakels made a presentation for SANE. You can download it in: * ISO Open Document Format attachment:RBB060517.odp * PDF attachment:RBB060517.pdf * PowerPoint (please [http://www.openoffice.org download OpenOffice] and use ISO Open Document Format) attachment:RBB060517.ppt * OpenOffice.org 1 attachment:RBB060517.sxi [http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper] |
== Links == * [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en Commission announcement] * The directive is an amended version, [http://www.ipred.org/history see the History] * [http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf Max Planck Institute: Statement on Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights] ([http://tinyurl.com/y7yfvh as tinyurl]) * [http://action.ffii.org/ipred2 FFII action page] * [http://www.lawsociety.org.uk/secure/file/157008/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/ipcriminalsanctions310806.pdf Comments by the Law Society of Engeland and Wales] [http://tinyurl.com/y79cfk (tinyurl)] * [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw Dutch Parliament] * [http://www.edri.org/edrigram/number4.9/ipcriminal EDRI] * [http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSF Europe] * [http://c-176-03.blogspot.com/2006/11/european-court-of-justice-crosses.html European Court of Justice crosses the Rubicon] * Reinier Bakels presentation for SANE: ISO Open Document Format attachment:RBB060517.odp PDF attachment:RBB060517.pdf !PowerPoint attachment:RBB060517.ppt !OpenOffice.org attachment:RBB060517.sxi * [http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk] * EU News [http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html Criminal law] | [http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html Constitution] * [http://ue.eu.int/uedocs/cms_data/docs/2004/6/21/Councils%20rules%20of%20procedure.pdf Council rules of procedure] |
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| [http://www.ipred.org/ipred1 IPRED 1] (2004) | |
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| ---------- [http://europa.eu.int/servlet/portail/RenderServlet?search=DocNumber&lg=en&nb_docs=25&domain=Legislation&coll=&in_force=NO&an_doc=2003&nu_doc=1383&type_doc=Regulation Customs regulation] |
== ipred.org == In 2004 the Council and European Parliament adopted an Intellectual Property Rights Enforcement Directive (IPRED). To make fast adoption possible (before 10 new members joined the EU), criminal penalties were taken out. |
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| ---------- | The criminal measures are back in the ''Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights'' (DCMEIPR ?). This new directive is often called IPRED 2. ipred.org is set up by [http://www.vrijschrift.org Vrijschrift.org] |
http://www.ipred.org/MainPage Introduction http://www.ipred.org/analysis Analysis http://www.ipred.org/howto How To http://www.ipred.org/factsheet Fact sheet http://www.ipred.org/download Downloading
The Criminal Measures IP Directive: Criminalizing the industry
The European Commission has proposed a [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en directive] to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.
A badly drafted Commission proposal was matched by badly drafted European Parliament amendments, and an amendment changed after the vote. The proposal is now in the hands of the Council.
Behind closed doors the EU, US and Japan negociate an Anti-Counterfeiting Trade Agreement (ACTA), with much the same content, or even worse. See our [:acta:ACTA] page.
Commission withholds key study on criminal measures from European Parliament
[http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament Commission withholds key study on criminal measures from European Parliament]
Official Journal of the European Union publishes corrupted text
Update: In a letter to MEP Eva Lichtenberger, the President of the European Parliament admitted a mistake was made. The text will be corrected.
Adopted amendment 15, excluding parallel importation, is not incorporated in the consolidated text. MEP Eva Lichtenberger wrote the President of the European Parliament a letter.
[http://www.heise.de/newsticker/meldung/100175 Heise has the story.]
[http://action.ffii.org/ipred2/Mistake_in_EP_provisional_consolidated_text_Criminal_Measures_IP_directive The FFII has the analysis]
Despite formal objections raised on 4 December 2007 by MEP and shadow rapporteur Eva Lichtenberger the Official Journal of the European Union published the [http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament controversial and contested version]. See the second part of the PR.
[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:074E:0527:0533:EN:PDF The Official Journal of the European Union]
Coalition report on the European Parliament vote
Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive.
[http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses,_Consumers,_Innovators FFII press release]
[http://action.ffii.org/ipred2/Report_on_EP_vote FFII/BEUC/EBLIDA/EFF Coalition report on the vote]
Carte Blanche Criminal Law
Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive.
Take action: [http://www.copycrime.org www.copycrime.org]
Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states).
Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison.
[http://www.ipred.org/april2007 read more]
Legal Affairs Committee washes hands in innocence
The European Parliament Legal Affairs Committee [http://action.ffii.org/ipred2/JURI_Tabled_Amendments voted] on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place?
[http://www.ipred.org/legalaffairs07 read more]
The Prosecution Paradise Directive
A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.
[http://www.ipred.org/prosecutionparadise read more]
We do not want our kids to be criminals - just for enjoying a videoclip on YouTube
Legal Affairs committee votes on criminalising downloading
Monday Februari 26 and Tuesday Februari 27, 2007, the European Parliament's Legal Affairs committee will discuss and vote on a proposal by Mr Manders, MEP, to [http://www.ipred.org/download criminalise downloading].
[http://action.ffii.org/ipred2/JURI_Tabled_Amendments The proposal was rejected.]
The Criminal Measures IP Directive: European Commission criminalises the industry
The European Commission has proposed a [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en directive] to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.
Commercial infringements
Beyond clear cases of piracy, it is impossible to tell in advance whether an act is an infringement or fair competition. On a daily basis companies try out the boundaries of "IP-rights". Is this product a look alike? Is this copycat or will the patent be invalidated? Is this work an independent recreation? Companies reach agreements or fight it out in civil courts. If a right was indeed infringed, damages are paid. This is a fair process. Adding criminal sanctions to this fair process creates a big threat potential that inhibits the desired freedom to act in the market.
Bizarre consequences
By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. It is impossible to write software without violating patents. A whole industry will be criminalised. Microsoft has been violating many patents, and had to pay huge damages. With this directive, we could see Bill Gates in prison. Even companies which merely use properly licensed software are criminalised, since such use is intentional, commercial scale and can infringe on software patents. And people who share files on the internet, on a not-for-profit basis, can be treated as organised criminals. You better watch what your kids are doing with your computer.
Superfluous
To combat piracy the legal means are already installed. What is actually needed is better coordination between countries. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. Unlike the directive, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.
Carte blanche
An other bizarre aspect of the proposal is that is has an open end: all existing and future "IP-rights" are covered. It is a carte blanche. Seen this misguided, superfluous and outrageous directive, is there anyone who wants to give the Commission carte blanche?
No competence
Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. In our opinion, only countries have enough legitimacy to make criminal laws. The Dutch Parliament unanimously concluded the [http://wiki.ffii.org/IpredNlParl060629En Commission exceeds its competence] with this directive.
Conclusion and analysis
The directive has to be rejected:
- it is misguided, superfluous and outrageous
- the Community lacks legitimacy and competence
If not rejected, member states should take the directive to the European Court of Justice.
A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question.
For conclusion and analysis see our [http:analysis analysis page].
Full name
Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights
COM(2006)0168
C6‑0233/2005
2005/0127(COD)
More translations will be available later on. Change "en" twice in the link for translations.
[http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf French]
[http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf German]
[http://tinyurl.com/9djqm Council documents on the subject]
[http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=193131#381074 Commission]
[http://preview.tinyurl.com/ytfdrd Council Substantive Criminal Law Working Groups' agenda]
Links
[http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en Commission announcement]
The directive is an amended version, [http://www.ipred.org/history see the History]
[http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf Max Planck Institute: Statement on Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights] ([http://tinyurl.com/y7yfvh as tinyurl])
[http://action.ffii.org/ipred2 FFII action page]
[http://www.lawsociety.org.uk/secure/file/157008/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/ipcriminalsanctions310806.pdf Comments by the Law Society of Engeland and Wales] [http://tinyurl.com/y79cfk (tinyurl)]
[http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw Dutch Parliament]
[http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSF Europe]
[http://c-176-03.blogspot.com/2006/11/european-court-of-justice-crosses.html European Court of Justice crosses the Rubicon]
Reinier Bakels presentation for SANE: ISO Open Document Format attachment:RBB060517.odp PDF attachment:RBB060517.pdf PowerPoint attachment:RBB060517.ppt OpenOffice.org attachment:RBB060517.sxi
[http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk]
EU News [http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html Criminal law] | [http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html Constitution]
[http://ue.eu.int/uedocs/cms_data/docs/2004/6/21/Councils%20rules%20of%20procedure.pdf Council rules of procedure]
ipred.org
In 2004 the Council and European Parliament adopted an Intellectual Property Rights Enforcement Directive (IPRED). To make fast adoption possible (before 10 new members joined the EU), criminal penalties were taken out.
The criminal measures are back in the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (DCMEIPR ?). This new directive is often called IPRED 2.
ipred.org is set up by [http://www.vrijschrift.org Vrijschrift.org]