|
Size: 4854
Comment:
|
Size: 6136
Comment:
|
| Deletions are marked like this. | Additions are marked like this. |
| Line 8: | Line 8: |
| Line 10: | Line 11: |
| '''Makes violations of "intellectual property rights", such as patents, a crime. May make adolescents that share files organised criminals.''' | |
| Line 11: | Line 13: |
| 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. | 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. These criminal penalties came back in 2005 in 2 new European Commission proposals. Following a European Court decision in an other case, they were retracted, [http://wiki.ffii.org/Com051123En for formal reasons.] 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 a new directive.] |
| Line 13: | Line 15: |
| Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] | |
| Line 14: | Line 17: |
| == IPRED 2 adds criminal sanctions to a legal minefield == | [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) |
| Line 16: | Line 19: |
| == Main points == | |
| Line 17: | Line 21: |
| In order to fight piracy, IPRED 2 makes all commercial violations of “intellectual property rights" a crime. All commercial violations. But not all intentional 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. | == Rejection == |
| Line 19: | Line 23: |
| • 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. Severe sanctions on copyright violations may endanger freedom of speech. • 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. Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. In our opinion we are witnessing an overreaction that will cause more damage than good. |
There are good grounds for rejection. The only valid ground for the directive is that non-harmonisation gives member states [http://wiki.ffii.org/IpredDonner060428En a competitive advantage.] See also [http://www.ipred.org/Hilty Hilty] and [http://www.ffii.org/~ante/FFII-ipred051122.pdf FFII] If the directive does not meet the requirements mentioned below (scope and elements of a crime), the directive should surely be rejected. |
| Line 29: | Line 27: |
| == Scope == | |
| Line 30: | Line 29: |
| [http://www.ipred.org/en More] | Patents have to be taken out. [http://wiki.ffii.org/Ipred2GovLtrsEn FFII:] "It is in practice impossible to write and sell software products without certainty that your product does not violate one of the 65,000 software or business method patents granted by the European Patent Office." [http://wiki.ffii.org/IpredEp051122En Others] protested criminalisation of patent infringement too. In general, the directive should be limited to rights of which it is proven that civil protection is not enough. |
| Line 32: | Line 32: |
| ------------------------------------ | No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime == Elements of a crime == Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] "As a matter of fact, a harmonisation of IP criminal statutes can be justified from the point of view of the principles of subsidiarity and proportionality only in connection with actions by which the following elements of a crime are fulfilled cumulatively: - Identity of the exploited object of protection (the good takes on characteristic elements of a protected product or label in a targeted and unmodified fashion – construction, assembly, etc.) - Commercial activity with an intention to earn a profit - Potential to cause considerable damage - Intent or contingent intent (dolus eventualis)" Note these are the minimal elements. They are better defined more sharp to prevent accidents. The Commission proposal does not even meet the minimal elements. |
| Line 35: | Line 51: |
| COM(2005)276 final | |
| Line 37: | Line 52: |
| 2005/0127(COD) | == == == |
| Line 39: | Line 54: |
| 2005/0128(CNS) | |
| Line 41: | Line 55: |
| [http://www.ipred.org/2005 the 2005 proposals] 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) [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] |
|
| Line 63: | Line 89: |
| [http://www.ipred.org/ipred1 IPRED 1] | [http://www.ipred.org/ipred1 IPRED 1] (2004) |
| Line 66: | Line 92: |
[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] ------------------------ |
Intellectual Property Rights Enforcement Directive 2
Makes violations of "intellectual property rights", such as patents, a crime. May make adolescents that share files organised criminals.
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. These criminal penalties came back in 2005 in 2 new European Commission proposals. Following a European Court decision in an other case, they were retracted, [http://wiki.ffii.org/Com051123En for formal reasons.] 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 a new directive.]
Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.]
[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)
Main points
Rejection
There are good grounds for rejection. The only valid ground for the directive is that non-harmonisation gives member states [http://wiki.ffii.org/IpredDonner060428En a competitive advantage.] See also [http://www.ipred.org/Hilty Hilty] and [http://www.ffii.org/~ante/FFII-ipred051122.pdf FFII] If the directive does not meet the requirements mentioned below (scope and elements of a crime), the directive should surely be rejected.
Scope
Patents have to be taken out. [http://wiki.ffii.org/Ipred2GovLtrsEn FFII:] "It is in practice impossible to write and sell software products without certainty that your product does not violate one of the 65,000 software or business method patents granted by the European Patent Office." [http://wiki.ffii.org/IpredEp051122En Others] protested criminalisation of patent infringement too. In general, the directive should be limited to rights of which it is proven that civil protection is not enough.
No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime
Elements of a crime
Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:]
"As a matter of fact, a harmonisation of IP criminal statutes can be justified from the point of view of the principles of subsidiarity and proportionality only in connection with actions by which the following elements of a crime are fulfilled cumulatively:
- - Identity of the exploited object of protection (the good takes on characteristic elements of a protected product or label in a targeted and unmodified fashion – construction, assembly, etc.) - Commercial activity with an intention to earn a profit - Potential to cause considerable damage - Intent or contingent intent (dolus eventualis)"
Note these are the minimal elements. They are better defined more sharp to prevent accidents. The Commission proposal does not even meet the minimal elements.
==
[http://www.ipred.org/2005 the 2005 proposals]
2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS)
[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://tinyurl.com/9djqm EU docs]
[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal]
[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]
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 WhyWikiWorks and the WikiNature. Also, consult the WikiWikiWebFaq.
This wiki is powered by MoinMoin.