Differences between revisions 35 and 136 (spanning 101 versions)

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.

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.

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.

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.

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?

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://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]

[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:

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]

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]

-  ⇤ ← Revision 35 as of 2005-11-23 09:05:49 → 
  Size: 4619
  Editor: amorvita
  Comment:
+   ← Revision 136 as of 2006-07-30 11:02:17 → ⇥
  Size: 6107
  Editor: AnteWessels
  Comment:
-Deletions are marked like this.
+Additions are marked like this.
 Line 8:
-= Intellectual Property Rights Enforcement Directive 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.''

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.

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. 

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.

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?
-Line 11:
+Line 22:
-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.
+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.
-Line 13:
+Line 24:
-= IPRED 2 =
+--------------------------------------------------

== 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)
-Line 17:
+Line 47:
-== No solution for piracy ==
+-------------------------------------------------------
-Line 19:
+Line 49:
+ * [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 20:
+Line 54:
-== 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?

Prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems.

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? 





[http://www.ipred.org/en More]

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


COM(2005)276 final

2005/0127(COD)

2005/0128(CNS)


[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 54:
+Line 57:
-[http://wiki.ffii.org/Ipred2En FFII]
-Line 62:
+Line 63:
+Reinier Bakels made a presentation for SANE. You can download it in:
-Line 63:
+Line 65:
-[http://tinyurl.com/9djqm EU docs]

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

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

[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
+ * 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]
-Line 81:
+Line 72:
-== How to use this site ==
+-------------------
-Line 83:
+Line 74:
-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.
+== ipred.org ==
-Line 85:
+Line 76:
-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.
+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.
-Line 91:
+Line 78:
-To learn more about what a WikiWikiWeb is, read about MoinMoin:WhyWikiWorks and the MoinMoin:WikiNature. Also, consult the MoinMoin:WikiWikiWebFaq.
+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.
-Line 93:
+Line 80:
-This wiki is powered by MoinMoin.
+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]

----------