Differences between revisions 116 and 138 (spanning 22 versions)
⇤ ← Revision 116 as of 2006-07-22 12:53:02 →
Size: 5656
Editor: AnteWessels
Comment:
← Revision 138 as of 2006-07-30 18:21:25 → ⇥
Size: 6487
Editor: AnteWessels
Comment:
Deletions are marked like this. Additions are marked like this.
Line 11: Line 11:
''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.''
Line 12: Line 13:
== Commercial infringements ==
Line 13: Line 15:
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. 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.
Line 15: Line 17:
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. == Bizarre consequences ==
Line 17: Line 19:
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. 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.
Line 19: Line 21:
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. == 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 ==
Line 28: Line 38:
For reasons of legitimacy and competence, the directive has to be rejected. If not rejected, scope and definitions have to be narrowed severely. The directive has to be rejected:
 * it is misguided, superfluous and outrageous
 * the Community lacks legitimacy and competence

If not rejected, scope and definitions have to be narrowed severely.
Line 31: Line 45:

-------------------

== 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)


 * [English http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf]
 * [French http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf]
 * [German http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf]
Line 37: Line 64:
 * [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en Commission announcement]
 * [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]
 * [http://tinyurl.com/9djqm EU docs]
Line 38: Line 69:

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


[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://wiki.ffii.org/Ipred2En FFII information overview page]
[http://wiki.ffii.org/Ipred2060510En FFII analysis]
Line 69: Line 72:

[http://wiki.ffii.org/Ipred2En FFII]
Line 76: Line 77:
[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal]
Line 93: Line 93:
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.  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.

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.

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 it 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, scope and definitions have to be narrowed severely.

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

2005/0127 (COD)

[http://wiki.ffii.org/Ipred2En FFII information overview page] [http://wiki.ffii.org/Ipred2060510En FFII analysis] [http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk]

[http://plone.ffii.org/Members/coordinator/FFII%20UK%20IPRED2%20consultation.pdf/download FFIII-UK]

[http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSFE]

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]

MainPage (last edited 2009-05-30 23:30:39 by localhost)