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Legal certainty, the young generation and innovation at stake in the European Union

Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive.

Inciting

The EP text makes inciting an infringement a crime. This is a huge threat to everybody in the software and the internet industry. From FFII to BSA ran amok against this. Parliament didn't listen.

Piracy

Everybody wants to limit the directive to clear cases of piracy. The [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], together with the [http://www.cipa.org.uk/download_files/preliminary_Proposed_Enforcement.pdf Chartered Institute of Patent Agents] gave detailed recommendations to solve this issue. Non of these recommendations were adopted. Instead the text uses the words "piracy" and "counterfeiting", but these concepts are not defined and the formulation is ambiguous.

To make a distinction between piracy and legitimate competition the infringing item has to be defined. The Max Planck Institute proposed a formulation. Parliament voted it down. The importance of this limitation, meant to exclude conflicts over the extent of protection by legitimate commercial enterprises, was not seen.

Commercial scale

A weak definition of commercial scale was adopted. It does not clearly protect consumers and the young generation. A coalition of libraries, consumers and innovators proposed better [http://action.ffii.org/ipred2/IPRED_2-Amendments_supported_by_coalition_of_libraries_consumers_and_innovators a better definition.] Parliament didn't use it.

Unexamined rights

Design rights and database rights are unexamined. The Chartered Institute of Patent Agents and others warned against allowing them in the scope of the directive. Companies may very legitimately decide intentionally to infringe design rights on the basis that they unlikely be held valid. But sometimes this might prove wrong. A criminalisation of these cases hampers legitimate competition beyond proportion and criminalises legitimate enterprises.

Not Community law

Trade names are not even Community law, the Community clearly does not have competence here to make criminal law. Parliament disregarded a lack of competence and the subsidiarity principle explicitely.

Information gathered can be used in civil cases

Criminal law gives broader possibilities to gather information. The rights holders get the right to use this information in civil cases. One of the parties in a civil case gets a better position.

Cross border criminalisation

An act in your own country, where it is not a crime, can be prosecuted in an other country if you are there for a conference, a holiday, etc.

[http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses%2C_Consumers%2C_Innovators FFII press release]

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.

Now for the plenary vote the liberals (ALDE) tabled an amendment leaving "commercial scale" undefined. Some of them may indeed care about subsidiarity. Others, like Manders, would like to see downloaders punished.

Criminal law needs strong definitions (legal certainty, proportionality). But here we see an unholy marriage of subsidiarity and disproportionality - no definitions. There is lots of drama in lawmaking!

If conditions are undefined, can the Member States make their own definitions? Yes they can. But they face a serious risk. Commercial scale comes from the TRIPS treaty (WTO). By referencing the TRIPS treaty, the Community risks their definitions being written by other organisations (WTO, WIPO). And since it's Community law, the European Court of Justice (ECJ) may ultimately decide. It's a King Lear situation: if you don't take control youself, others will do it. The music industry will try to influence the definitions at other fora, outside reach of the European Parliament. And we do not know in which direction the uncertainty will be interpreted by national courts (at first instance, before a possible ruling of the ECJ).

It is the first time the Community can make criminal law. And already they plan to outsource aspects. They are creating Carte Blanche Criminal Law.

We already have the TRIPS treaty that obliges the Member States to take action against copyright piracy and trademark counterfeiting. The Member States have their owns laws as an extra to that. The IPRED directive (the first) contains strong civil measures. Community criminal law is not needed at all, and only creates loopholes - which is the opposite of subsidiarity.

Whoever cares about subsidiarity, cares about proportionality, should not leave concepts undefined, but reject the directive altogether. If that fails, strong definitions are needed. The stronger, the better Europeans are protected, the higher the chance the member states do not have to change their national laws.

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?

It seems to be the new trick in town since the Constitution was voted down: leave it to the Court. Even if the Treaty does not provide enough space, nobody can stop the Court. It has been called a legal coup d'etat here and there.

The approach taken by the Committee will lead to many years of legal uncertainty, a huge threat potential that hampers the freedom to act in the market. Criminal law has to be precise, this age old principle is disregarded by the Committee.

Inciting

The Commission proposal makes inciting an infringement a crime too. This is a huge threat to everybody in the software and the internet industry. From FFII to BSA run amok against this. It is still in.

Piracy

Everybody wants to limit the directive to clear cases of piracy. The [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], together with the [http://www.cipa.org.uk/download_files/preliminary_Proposed_Enforcement.pdf Chartered Institute of Patent Agents] gave detailed recommendations to solve this issue. Non of these recommendations made it to the Legal Affairs Committee report.

For instance amendment 30: "This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights in the context of counterfeiting and piracy."

Piracy is not defined. And the formulation can be turned around: These are measures in the context of counterfeiting and piracy, they are very broad, so apparently piracy and counterfeiting have to be seen in a broad way. Like this it only leads to word inflation. How strong is the limitation? The ECJ can even turn a treaty around, as they showed with C-176/03.

A clear limitation, based on the work of the Max Planck Institute, was overwhelmingly voted down: "For the purposes of this Directive, 'infringement' means an infringement where the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion."

The importance of this limitation, meant to exclude conflicts over the extent of protection by legitimate commercial enterprises, was not seen by the Committee.

Unexamined rights

Design rights, which are unexamined, are still in. The Chartered Institute of Patent Agents about them: "The position in relation to registered designs is particularly difficult. It is widely recognised that the effect of having no substantive examination is that there are many designs which are registered which are not valid. If criminal sanctions applied to infringement of such rights then it would seriously impact on the freedom of others to use those designs. Even if it were a defence to show that the registered design was invalid (or that it was believed to be), it is likely that there would be a substantial adverse effect on legitimate competitors, who would not be willing to take the risk of criminal liability. Commercial organisations are willing to take a commercial risk in relation to civil liability – that they will be found liable for damages if their commercial judgement is wrong; but such issues should be left to civil remedies, not to criminal ones."

Wise words which were not picked up by the Legal Affairs Committee.

Commercial scale

A solid definition of commercial scale by the Max Planck institute was not used: "commercial activity with an intention to earn a profit". The rapporteur invented: "(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain a commercial advantage; this would exclude acts carried out by private users for personal and not for profits purposes;"

"This would" shows the origin, a civil law consideration (IPRED). It is weak and not suited for criminal law.

The Prosecution Paradise Directive

All over Europe piracy and counterfeiting of copyright and trademark rights are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The European Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, the proposal criminalises IPR disputes that are essentially of a civil nature and occur between legitimate commercial enterprises. Even untested rights, which may soon evaporate in a civil court cases, become grounds for prosecution. And the rights holders may assist the police.

Some Members of the European Parliament 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.

A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.

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. Litigation companies (trolls) will be able to put maximum pressure on companies that create products and extort disproportional license fees. The current proposals create huge privacy risks when "IP owners" can direct investigation into anyone they accuse of "piracy".

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, kids included. It's jeopardizing Europe's future.

We assume nobody deliberately wants to create a Prosecution Paradise.

Measures to take

1 Amendments making the directive broader in scope have to be rejected.

2 The crime has to be defined as proposed by the [http://www.ipred.org/art3 Max Planck Institute].

3 Weak rights have to be taken out of the scope. In fact, only the rights known to be pirated can stay in: copyright and trademark right.

4 Art 7, which allows the rights holders to assist the police, has to be deleted.

5 The criminal measures to combat piracy and counterfeiting are already available. At best, a directive will only have symbolic meaning. A far more realistic approach was suggested by the Dutch Parliament. Its [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw letter] should be reconsidered. There should be no hesitation to reject the directive.

BR

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.]

BR

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)

• [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf English]

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]

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.edri.org/edrigram/number4.9/ipcriminal EDRI]

• [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]

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]