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| = Intellectual Property Rights Enforcement Directive = | = Intellectual Property Rights Enforcement Directive 2 = 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. Now these criminal penalties are back in 2 new European Commission proposals. = IPRED 2 = |
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| 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. Now these criminal penalties are back in 2 new proposals. Often these are referred to as IPRED 2. The official name is: | == No solution for piracy == |
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| Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on criminal measures aimed at ensuring the enforcement of intellectual property rights |
== Conclusion == |
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| Proposal for a COUNCIL FRAMEWORK DECISION to strengthen the criminal law framework to combat intellectual property offences |
For the sake of protection of carefully balanced national procedural law systems, subsidiarity and legal security, we ask you to say No to these superfluous and detrimental proposals. The European Parliament rejected the software patents directive. We heartily thank you for that. The IPRED 2 directive and framework should go the same way. |
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| == No Justification == | == Introduction == In order to fight piracy, IPRED 2 makes all commercial violations of “intellectual property" rights a crime. All commercial violations. But not all commercial violations of “intellectual property” rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations not being pirates is very serious. The principal issue with IPRED 2 is that it is confusing piracy and commercial infringement. If fighting piracy is the objective, piracy and counterfeiting are to be criminalised. And not every commercial violation of “intellectual property” rights. Take copyright. The question whether something is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium. IPRED 2 covers 11 “intellectual property” rights. We have trade mark counterfeiting and copyright piracy. The other 9 “intellectual property” rights shouldn't be in IPRED 2. Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. The Commission made no assessment of the current situation. Are there any real problems today due to unintended legal limitations? How would the directive work out in various criminal law systems? |
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| The proposals lack proper justification, the justification given is just one A4 long. The subsidiarity principle is violated. There is no need for the proposals, piracy is already prohibited in European countries. In some cases, penalties go up a 100 times. There is no indication at all that this is needed. For instance, in the Netherlands, no prosecution has taken place for violation of trade names for over 50 years. Why then a 100 times more severe penalty? | Prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. |
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| == Neutrality of police investigation == | Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? |
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| Right-holders can help the police to draw conclusions. There goes neutrality of police investigation. | |
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| == Legality == | |
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| People are entitled to know what is forbidden. But with "intellectual property" rights it is often unclear. For instance patents often do not survive a court case. So, in the end no right was violated. Prosecution can start, while it may turn out there was no right that could be violated. This is not about whether person A committed crime X, but whether crime X is a crime after all, or not. That has to be known before person A acts. With many IP-rights, it is not known. Legality is missing totally. | [http://www.ipred.org/en More] ------------------------------------ COM(2005)276 final 2005/0127(COD) 2005/0128(CNS) |
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[http://tinyurl.com/9djqm EU docs] [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal] ----------------------------------- [http://www.ipred.org/ipred1 IPRED 1] |
Intellectual Property Rights Enforcement Directive 2
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. Now these criminal penalties are back in 2 new European Commission proposals.
IPRED 2
No solution for piracy
Conclusion
For the sake of protection of carefully balanced national procedural law systems, subsidiarity and legal security, we ask you to say No to these superfluous and detrimental proposals.
The European Parliament rejected the software patents directive. We heartily thank you for that. The IPRED 2 directive and framework should go the same way.
Introduction
In order to fight piracy, IPRED 2 makes all commercial violations of “intellectual property" rights a crime. All commercial violations. But not all commercial violations of “intellectual property” rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations not being pirates is very serious. The principal issue with IPRED 2 is that it is confusing piracy and commercial infringement. If fighting piracy is the objective, piracy and counterfeiting are to be criminalised. And not every commercial violation of “intellectual property” rights.
Take copyright. The question whether something is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium.
IPRED 2 covers 11 “intellectual property” rights. We have trade mark counterfeiting and copyright piracy. The other 9 “intellectual property” rights shouldn't be in IPRED 2.
Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. The Commission made no assessment of the current situation. Are there any real problems today due to unintended legal limitations? How would the directive work out in various criminal law systems?
Prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems.
Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison?
[http://www.ipred.org/en More]
COM(2005)276 final
2005/0127(COD)
2005/0128(CNS)
[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://tinyurl.com/9djqm EU docs]
[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal]
[http://www.ipred.org/ipred1 IPRED 1]
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