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| = Intellectual Property Rights Enforcement Directive 2 = | = European Commission exceeds competence with criminal measures on infringements of "intellectual property" rights = |
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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. | The European Commission has proposed [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en a directive to criminalise infringements of "intellectual property rights"] ("IP-rights"), such as patents, copyright and trade marks. The stated aim is to combat "piracy". While massive infringements on for instance copyright are indeed a problem, the directive itself is a bigger problem. Due to very weak definitions, the directive does not only criminalises pirates, but also companies that are not pirates. And even 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. Should severe infringements of "IP-rights" go unpunished? Will Europe become a pirate continent without the directive? No, in all European countries copyright piracy and trade mark counterfeiting are already forbidden. Unlike the directive, these national laws are carefully balanced. Also, companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail. With its weak definitions, the directive distorts carefully balanced national procedural law systems. |
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| IPRED 2: | |
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| Adding criminal sanctions to a legal minefield | Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. The first question to be asked is whether we want this. Should we want a Union with a democratic deficit to write our criminal laws? Our answer is no, we believe only countries have enough legitimacy to make criminal laws. Does the Community have the competence to make this directive? The Dutch Parliament [http://wiki.ffii.org/IpredNlParl060629En unanimously decided the Commission exceeds it competence] with this directive. The Commission made a severe faute passe in a sensitive field. The proposal should meet a flat rejection. -------------------------------------------------- == Conclusion and analysis == For conclusion and analysis see our [http:analysis analysis page]. |
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| 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 these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations that are not pirates is very serious. The principal issue is that IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates. • Take copyright. The question whether a work 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. With IPRED 2, any journalist can be prosecuted that makes a citation that is a bit too long. • Take Patent law. 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? He can go to jail, together with Europe's software developers, since IPRED 2 criminalises companies that are not pirates. Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. Furthermore, IPRED 1 is being implemented right now. At the moment no assessment can be made whether an instrument is missing. Yet 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.ipred.org/en More] ------------------------------------ |
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| COM(2005)276 final | ------------------------------------------------------- |
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| 2005/0127(COD) | |
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| 2005/0128(CNS) | |
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| 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] |
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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. |
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European Commission exceeds competence with criminal measures on infringements of "intellectual property" rights
The European Commission has proposed [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en a directive to criminalise infringements of "intellectual property rights"] ("IP-rights"), such as patents, copyright and trade marks. The stated aim is to combat "piracy". While massive infringements on for instance copyright are indeed a problem, the directive itself is a bigger problem. Due to very weak definitions, the directive does not only criminalises pirates, but also companies that are not pirates. And even 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.
Should severe infringements of "IP-rights" go unpunished? Will Europe become a pirate continent without the directive? No, in all European countries copyright piracy and trade mark counterfeiting are already forbidden. Unlike the directive, these national laws are carefully balanced. Also, companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail.
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. The first question to be asked is whether we want this. Should we want a Union with a democratic deficit to write our criminal laws? Our answer is no, we believe only countries have enough legitimacy to make criminal laws.
Does the Community have the competence to make this directive? The Dutch Parliament [http://wiki.ffii.org/IpredNlParl060629En unanimously decided the Commission exceeds it competence] with this directive.
The Commission made a severe faute passe in a sensitive field. The proposal should meet a flat rejection.
Conclusion and analysis
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]