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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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| ------ [[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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| = 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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| 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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| = The Prosecution Paradise Directive = | 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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| All over Europe piracy and counterfeiting are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, even normal business acts by regular companies. Even untested rights, which may soon evaporate in a civil court cases, become grounds for prosecution. And the rights holders may assist the police. | ---------- |
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| Some MEPs even proposed in amendments to remove the "commercial scale" condition or to weaken it, to remove "intentional", to involve consumers, to criminalise the young generation. | === 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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| Why do some push for a Prosecution Paradise? | [http://www.heise.de/newsticker/meldung/100175 Heise has the story.] |
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| In a knowledge economy, owning information is a certain win. But you still have to fight it out in civil courts sometimes. It is easier and cheaper if the state (the prosecutor) takes care of eliminating competitors, however weak your rights may be, however justified your competitors acts may be. Criminal courts are inexperienced with IP, they will readily provide court orders, criminal law gives wide competences. Suing the young generation for high damages is bad PR, recording companies rather leave it to state prosecutors. | [http://action.ffii.org/ipred2/Mistake_in_EP_provisional_consolidated_text_Criminal_Measures_IP_directive The FFII has the analysis] |
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| In short, criminalisation is used for profit maximalisation. Put maximum pressure on competitors, make them crack. | 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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| The eighties of the last century were characterised with "get rich fast", it was a poker game. This is worse. Winner takes all, and the others can go to jail. It's utterly cynical. It's jeopardizing Europe's future. The Community will never win the hearts and minds of the Europeans if it supports such an agenda. | [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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| The criminal measures to combat piracy and counterfeiting are already available. Reject the directive. | === 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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| [http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses,_Consumers,_Innovators FFII press release] | |
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| [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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| Take action: [http://www.copycrime.org www.copycrime.org] | |
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| = We do not want our kids to be criminals - just for enjoying a videoclip on YouTube = | 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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| 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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| == Legal Affairs committee votes on criminalising downloading == | [http://www.ipred.org/april2007 read more] |
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| Update: meeting and vote are postponed | === 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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| [http://www.ipred.org/legalaffairs07 read more] | |
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| Monday January 29 and Tuesday January 30, 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]. | === The Prosecution Paradise Directive === A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls. |
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| [http://www.ipred.org/prosecutionparadise read more] | |
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| ----------------------------------- | === 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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| [http://action.ffii.org/ipred2/JURI_Tabled_Amendments The proposal was rejected.] ---------- [[BR]] |
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| == Commercial infringements == |
=== Commercial infringements === |
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| == Bizarre consequences == | === 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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| 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 == |
=== Superfluous === |
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| == Carte blanche == |
=== Carte blanche === |
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| == No competence == | === 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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| 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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| The directive has to be rejected: | |
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| The directive has to be rejected: | |
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| 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. | 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. |
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| ------------------- | ---------- |
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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 | |
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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 | COM(2006)0168 |
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| COM(2006)0168 C6‑0233/2005 |
C6‑0233/2005 |
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| * [http://tinyurl.com/9djqm All EU documents on the subject] ------------------------------------------------------- |
* [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.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://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)] |
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------------------- |
* [http://ue.eu.int/uedocs/cms_data/docs/2004/6/21/Councils%20rules%20of%20procedure.pdf Council rules of procedure] * [http://trade.ec.europa.eu/doclib/cfm/doclib_search.cfm?action=search Search Commission documents] ---------- |
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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. |
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. |
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]
[http://trade.ec.europa.eu/doclib/cfm/doclib_search.cfm?action=search Search Commission documents]
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]