Differences between revisions 20 and 64 (spanning 44 versions)

Intellectual Property Rights Enforcement Directive 2

Makes violations of "intellectual property rights", such as patents, a crime. Makes adolescents that share files organised criminals.

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. These criminal penalties came back in 2005 in 2 new European Commission proposals. Following a European Court decision in an other case, they were retracted, [http://wiki.ffii.org/Com051123En for formal reasons.] 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 a new directive.]

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

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

Main points

Scope

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. In general, the directive should be limited to rights of which it is proven that civil protection is not enough.

No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime

Elements of a crime

Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:]

"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:

- 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 activity with an intention to earn a profit - Potential to cause considerable damage - Intent or contingent intent (dolus eventualis)"

Note these are the minimal elements. They are better defined more sharp to prevent accidents. The Commission proposal does not even meet the minimal elements.

Rejection

There are good grounds for rejection. The only valid ground for the directive is that non-harmonisation gives member states [http://wiki.ffii.org/IpredDonner060428En a competitive advantage.] The Commission does not even try to make that case. See also [http://www.ipred.org/Hilty Hilty] and [http://www.ffii.org/~ante/FFII-ipred051122.pdf FFII] If the directive does not meet the requirements mentioned above (scope and elements of a crime), the directive should surely be rejected.

==

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

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

[http://www.ipred.org/2005 the 2005 proposals]

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

[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]

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

[http://www.ipred.org/ipred1 IPRED 1] (2004)

[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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-= Intellectual Property Rights Enforcement Directive =
+= Intellectual Property Rights Enforcement Directive 2 =

'''Makes violations of "intellectual property rights", such as patents, a crime. Makes adolescents that share files organised criminals.'''

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. These criminal penalties came back in 2005 in 2 new European Commission proposals. Following a European Court decision in an other case, they were retracted, [http://wiki.ffii.org/Com051123En for formal reasons.] 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 a new directive.]

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

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

== Main points ==


== Scope ==

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. In general, the directive should be limited to rights of which it is proven
that civil protection is not enough.

No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime

== Elements of a crime ==

Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:]

"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: 

 - 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 activity with an intention to earn a profit 

 - Potential to cause considerable damage 

 - Intent or contingent intent (dolus eventualis)"

Note these are the minimal elements. They are better defined more sharp to prevent accidents. The Commission proposal does not even meet the minimal elements. 


== Rejection ==

There are good grounds for rejection. The only valid ground for the directive is that non-harmonisation gives member states [http://wiki.ffii.org/IpredDonner060428En a competitive advantage.] The Commission does not even try to make that case. See also [http://www.ipred.org/Hilty Hilty] and [http://www.ffii.org/~ante/FFII-ipred051122.pdf FFII] If the directive does not meet the requirements mentioned above (scope and elements of a crime), the directive should surely be rejected.
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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 European Commission proposals. Often these are referred to as IPRED 2. The official names are:
+== == ==
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-Proposal for a
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
on criminal measures aimed at ensuring the enforcement of intellectual property rights
+[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)
-Line 19:
+Line 57:
-Proposal for a
COUNCIL FRAMEWORK DECISION
to strengthen the criminal law framework to combat intellectual property offences

== No Justification ==

The proposals lack proper justification, the justification given is just one A4 page long. 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? The subsidiarity principle is violated. 

TRIPS already lays down severe provisions on means of enforcing trade-related intellectual property
rights. These include the implementation of criminal procedures and criminal penalties. In no way the Commission makes clear these are not enough. 

In 2004 the Council and European Parliament adopted the Intellectual Property Rights Enforcement Directive (IPRED).  It is being implemented at the moment. Effects are not clear yet, it is unknown whether further measures are needed. 

== Neutrality of police investigation ==

Right-holders can help the police to draw conclusions. There goes neutrality of police investigation. 

== Legality ==

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 civil court case. So, in the end no right was violated. As far as the Commission is concerned 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. The outcome of civil patent cases is unpredictable. A lotery. This is unacceptable with criminal cases. 

Software and business methods are excluded from patentability, but only "as such". "As such" has been regarded as unclear for 30 years. The meaning has been shifting. It is impossible to base criminal sancties on such unclear laws. 

With trade names, if companies act locally and there is enough distance, it is no problem and no violation to have the same name. So, having the same name is no problem or can get you a four years sentence - as far as the Commission is concerned. A lotery.

Charter of Fundamental Rights.
+[http://tinyurl.com/9djqm EU docs]
-Line 47:
+Line 60:
+[http://www.ipred.org/2005 the 2005 proposals]

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


[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]
-Line 57:
+Line 84:
+[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal]


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

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

[http://www.ipred.org/ipred1 IPRED 1] (2004)
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