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= European Commission exceeds competence with criminal measures on infringements of "intellectual property" rights =


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.

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.

With its weak definitions, the directive distorts carefully balanced national procedural law systems.		 = European Commission criminalises the industry =
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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. The European Commission has proposed a directive to [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en criminalise all intentional commercial scale infringements] of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. The Commission goes much further, disregarding the fact that beyond copyright "piracy" and trade mark counterfeiting, infringements of "IP-rights" are very complicated. Such infringements often occur during normal business conduct. The European Commission criminalises the industry.
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Does the Community have the competence to make this directive? The Dutch Parliament [http://wiki.ffii.org/IpredNlParl060629En unanimously decided the Commission exceeds it competence] with this directive. 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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The Commission made a severe faute passe in a sensitive field. The proposal should meet a flat rejection. Criminal courts are not the right place for complicated infringements. Civil procedures are the right choice for them, and more rewarding for the right holders since they can ask for damages. Apart from blatent cases of piracy, only after a civil trial it is known whether an alleged infringement is indeed an infringement.

In all European countries copyright piracy and trade mark counterfeiting are already forbidden. Unlike the directive, these national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.

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 it competence] with this directive.
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For reasons of legitimacy and competence, the directive has to be rejected. If not rejected, scope and definitions have to be narrowed severely.
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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 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   2005/0127 (COD)
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[http://www.ipred.org/2005 the 2005 proposals]

2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS)
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-------------------

== 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]
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[http://www.ipred.org/ipred1 IPRED 1] (2004) [http://www.ipred.org/ipred1 IPRED 1] (2004) - civil measures, adopted

[http://www.ipred.org/2005 the 2005 proposals] - criminal measures, retracted for formal reasons.

European Commission criminalises the industry

The European Commission has proposed a directive to [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en criminalise all intentional commercial scale infringements] of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. The Commission goes much further, disregarding the fact that beyond copyright "piracy" and trade mark counterfeiting, infringements of "IP-rights" are very complicated. Such infringements often occur during normal business conduct. The European Commission criminalises the industry.

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.

Criminal courts are not the right place for complicated infringements. Civil procedures are the right choice for them, and more rewarding for the right holders since they can ask for damages. Apart from blatent cases of piracy, only after a civil trial it is known whether an alleged infringement is indeed an infringement.

In all European countries copyright piracy and trade mark counterfeiting are already forbidden. Unlike the directive, these national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.

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 it competence] with this directive.

Conclusion and analysis

For reasons of legitimacy and competence, the directive has to be rejected. If not rejected, scope and definitions have to be narrowed severely.

For conclusion and analysis see our [http:analysis analysis page].

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://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)

The directive is an amended version, [http://www.ipred.org/history see the History]

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

2005/0127 (COD)

[http://tinyurl.com/9djqm EU docs]

Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.]

[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:

[http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper]

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]

[http://www.ipred.org/ipred1 IPRED 1] (2004) - civil measures, adopted

[http://www.ipred.org/2005 the 2005 proposals] - criminal measures, retracted for formal reasons.

[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]

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