Differences between revisions 35 and 239 (spanning 204 versions)

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

Official Journal of the European Union publishes corrupted text

The Official Journal of the European Union published the [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:074E:0527:0533:EN:PDF corrupted text], the one with amendment 15 rewritten after the vote. See below.

Consolidated text manipulated

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]

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.

[http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses%2C_Consumers%2C_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)

[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.

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]
[http://ue.eu.int/uedocs/cms_data/docs/2004/6/21/Councils%20rules%20of%20procedure.pdf Council rules of procedure]

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]

-  ⇤ ← Revision 35 as of 2005-11-23 09:05:49 → 
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  Comment:
+   ← Revision 239 as of 2008-04-03 17:43:29 → ⇥
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-Deletions are marked like this.
+Additions are marked like this.
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-= Intellectual Property Rights Enforcement Directive 2 =
-Line 10:
+Line 9:
-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 =
+------ [[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]] ------
-Line 17:
+Line 13:
-== No solution for piracy ==
+= Official Journal of the European Union publishes corrupted text =

The Official Journal of the European Union published the [http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:074E:0527:0533:EN:PDF corrupted text], the one with amendment 15 rewritten after the vote. See below.
-Line 20:
+Line 18:
+= Consolidated text manipulated =
-Line 21:
+Line 20:
-== 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?
+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.
-Line 31:
+Line 22:
-Prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems.
+[http://www.heise.de/newsticker/meldung/100175 Heise has the story.]
-Line 33:
+Line 24:
-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://action.ffii.org/ipred2/Mistake_in_EP_provisional_consolidated_text_Criminal_Measures_IP_directive The FFII has the analysis]
-Line 39:
+Line 30:
-[http://www.ipred.org/en More]

------------------------------------
+= Legal certainty, the young generation and innovation at stake in the European Union =
-Line 44:
+Line 33:
-COM(2005)276 final
+Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive. 

[http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses%2C_Consumers%2C_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.]

-----------------------------------
[[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
-Line 48:
+Line 137:
-/0128(CNS)
-Line 50:
+Line 138:
-[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://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]
 * [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]
-Line 63:
+Line 151:
-[http://tinyurl.com/9djqm EU docs]
+-------------------------------------------------------
-Line 65:
+Line 153:
-[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal]
+== Links ==
-Line 67:
+Line 155:
------------------------------------
+ * [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]
-Line 69:
+Line 160:
-[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
+ * [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]
-Line 81:
+Line 169:
-== How to use this site ==
+ * EU News [http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html Criminal law] | [http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html Constitution]
-Line 83:
+Line 171:
-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.
+ * [http://ue.eu.int/uedocs/cms_data/docs/2004/6/21/Councils%20rules%20of%20procedure.pdf Council rules of procedure]
 
-------------------
-Line 85:
+Line 175:
-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.
+== ipred.org ==
-Line 91:
+Line 177:
-To learn more about what a WikiWikiWeb is, read about MoinMoin:WhyWikiWorks and the MoinMoin:WikiNature. Also, consult the MoinMoin:WikiWikiWebFaq.
+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 93:
+Line 179:
-This wiki is powered by MoinMoin.
+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]