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| = Intellectual Property Rights Enforcement Directive 2 = | |
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| = European Commission exceeds competence with criminal measures on violations 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. | === 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 === |
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| The European Commission has proposed 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 normal companies. And even people who share on a not for profit basis files on the internet, can be treated as organised criminals. | |
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| == IPRED 2 adds criminal sanctions to a legal minefield == | 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. And companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail. |
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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 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. • 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. |
Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. |
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| It is the first time Brussels interferes with criminal measures, without the member states having a veto. Should we want a Union with a democratic deficit to write our criminal laws? Ipred.org says no. A Union that lacks legitimacy, writing criminal laws - it is the start of oppression. | |
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| [http://www.ipred.org/en More] | And the answer is certainly no, if the Commission exceeds its competence. As minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En pointed out], harmonisation of penalties should only be done if there is a real EU interest. The [http://www.ipred.org/Hilty only legal ground] for a directive like this, a harmonisation of criminal measures, is a distortion of trade, i.e, if the non-harmonised state leads to a competitive advantage of member states having lower penalties. |
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| ------------------------------------ | In 10 of the EU's 25 countries patent infringement is a crime. Does the fact that it is not a crime in all 25 countries lead to distortion in trade, does it give the countries in which it is not a crime a competitive advantage? Nobody has ever claimed such a thing. There is no legal ground for including patent infringement in this directive. There are 10 more IP rights for which this question has to be answered. |
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| If the competence issue is solved for some of the IP rights, then the 4 requirements of a crime (see below) have to be met in order to meet the subsidiarity and proportionality requirements. The Commission proposal does not meet them. | |
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| COM(2005)276 final | Without the competence, subsidiarity and proportionality requirements met, the directive is illegal, has to be rejected. |
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| 2005/0127(COD) | As far as many companies are concerned, patents have to go out - a political reason for rejection. |
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| 2005/0128(CNS) | Should we want a Union with a democratic deficit to write our criminal laws? - a political reason for rejection. |
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| Do we want our adolescents that share files on the internet to be treated as organised criminals? - yet an other reason for rejection. The Commission made a severe faute passe in a sensitive field. The proposal should meet a flat rejection in first reading in the European Parliament. 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.] 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) [http://www.ipred.org/history History] == Main points == == 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. 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. Since the stated aim of the directive is to combat "piracy", the fourth requirement should be "criminal intention", not "Intent or contingent intent". == == == [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) [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) [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] [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal] |
* 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 |
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| ----------------------------------- | ---------- [http://www.ipred.org/ipred1 IPRED 1] (2004) |
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| [http://www.ipred.org/ipred1 IPRED 1] | ---------- [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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---------- |
European Commission exceeds competence with criminal measures on violations of "intellectual property" rights
=== 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 ===
The European Commission has proposed 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 normal companies. And even people who share on a not for profit basis files on the internet, can be treated as organised criminals.
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. And companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail.
Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto.
It is the first time Brussels interferes with criminal measures, without the member states having a veto. Should we want a Union with a democratic deficit to write our criminal laws? Ipred.org says no. A Union that lacks legitimacy, writing criminal laws - it is the start of oppression.
And the answer is certainly no, if the Commission exceeds its competence. As minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En pointed out], harmonisation of penalties should only be done if there is a real EU interest. The [http://www.ipred.org/Hilty only legal ground] for a directive like this, a harmonisation of criminal measures, is a distortion of trade, i.e, if the non-harmonised state leads to a competitive advantage of member states having lower penalties.
In 10 of the EU's 25 countries patent infringement is a crime. Does the fact that it is not a crime in all 25 countries lead to distortion in trade, does it give the countries in which it is not a crime a competitive advantage? Nobody has ever claimed such a thing. There is no legal ground for including patent infringement in this directive. There are 10 more IP rights for which this question has to be answered.
If the competence issue is solved for some of the IP rights, then the 4 requirements of a crime (see below) have to be met in order to meet the subsidiarity and proportionality requirements. The Commission proposal does not meet them.
Without the competence, subsidiarity and proportionality requirements met, the directive is illegal, has to be rejected.
As far as many companies are concerned, patents have to go out - a political reason for rejection.
Should we want a Union with a democratic deficit to write our criminal laws? - a political reason for rejection.
Do we want our adolescents that share files on the internet to be treated as organised criminals? - yet an other reason for rejection.
The Commission made a severe faute passe in a sensitive field. The proposal should meet a flat rejection in first reading in the European Parliament.
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.]
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)
[http://www.ipred.org/history History]
Main points
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.
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. Since the stated aim of the directive is to combat "piracy", the fourth requirement should be "criminal intention", not "Intent or contingent intent".
==
[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)
[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)
[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]