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| = Intellectual Property Rights Enforcement Directive 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 European Commission proposals. = IPRED 2 = |
= European Commission criminalises the industry = |
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| == No solution for piracy == | 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. 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. 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 our doing with your computer. 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. 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. 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 decided the [http://wiki.ffii.org/IpredNlParl060629En Commission exceeds it competence] with this directive. |
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| == 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? |
== Conclusion and analysis == |
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| Prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. | For reasons of legitimacy and competence, the directive has to be rejected. If not rejected, scope and definitions have to be narrowed severely. |
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| 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? | For conclusion and analysis see our [http:analysis analysis page]. |
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[http://www.ipred.org/en More] ------------------------------------ |
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| COM(2005)276 final | |
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| 2005/0127(COD) | 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.] |
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| 2005/0128(CNS) | |
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| [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] [http://www.ipred.org/2005 the 2005 proposals] 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) 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] |
|
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| [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal] | |
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| Reinier Bakels made a presentation for SANE. You can download it in: | |
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| [http://tinyurl.com/9djqm EU docs] | * ISO Open Document Format attachment:RBB060517.odp * PDF attachment:RBB060517.pdf * PowerPoint (please [http://www.openoffice.org download OpenOffice] and use ISO Open Document Format) attachment:RBB060517.ppt * OpenOffice.org 1 attachment:RBB060517.sxi [http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper] |
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| [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal] | ---------- [http://www.ipred.org/ipred1 IPRED 1] (2004) |
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| ----------------------------------- | ---------- [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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| [http://www.ipred.org/ipred1 IPRED 1] ---------------------------------- Interesting starting points: * RecentChanges: see where people are currently working * WikiSandBox: feel free to change this page and experiment with editing * FindPage: search or browse the database in various ways * SyntaxReference: quick access to wiki syntax * SiteNavigation: get an overview over this site and what it contains == How to use this site == Note: To prevent spammers from spamming the wiki, you need be logged in to edit pages. If you don't have an account yet, just go to "Login" and create an account. A Wiki is a collaborative site, anyone can contribute and share: * Edit any page by pressing '''[[GetText(Edit)]]''' at the top or the bottom of the page * Create a link to another page with joined capitalized words (like WikiSandBox) or with {{{["quoted words in brackets"]}}} * Search for page titles or text within pages using the search box at the top of any page * See HelpForBeginners to get you going, HelpContents for all help pages. To learn more about what a WikiWikiWeb is, read about MoinMoin:WhyWikiWorks and the MoinMoin:WikiNature. Also, consult the MoinMoin:WikiWikiWebFaq. This wiki is powered by MoinMoin. |
---------- |
European Commission criminalises the industry
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. 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.
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 our doing with your computer.
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.
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.
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 decided the [http://wiki.ffii.org/IpredNlParl060629En Commission exceeds it competence] with this directive.
Conclusion and analysis
For reasons of legitimacy and competence, the directive has to be rejected. If not rejected, scope and definitions have to be narrowed severely.
For conclusion and analysis see our [http:analysis analysis page].
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]
[http://www.ipred.org/2005 the 2005 proposals]
2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS)
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://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]
Reinier Bakels made a presentation for SANE. You can download it in:
- ISO Open Document Format attachment:RBB060517.odp
- PDF attachment:RBB060517.pdf
PowerPoint (please [http://www.openoffice.org download OpenOffice] and use ISO Open Document Format) attachment:RBB060517.ppt
OpenOffice.org 1 attachment:RBB060517.sxi
[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]