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| = Intellectual Property Rights Enforcement Directive 2 = | = European Commission criminalises the industry = |
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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. 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 2006 the European Commission will propose a new directive (with most of the content of both 2005 proposals). | 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. It surely makes sense to combat clear cases of piracy. But does it make sense to combat other infringements too? No. Other infringements occur during normal commercial business conduct. 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? Will this 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 inhibits the desired freedom to act in the market. The Commission criminalises the industry. By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. 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. 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. But do we really want to see Bill Gates in prison? 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, these 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. |
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| == Main points == | -------------------------------------------------- |
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| == Scope == | == Conclusion and analysis == |
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| 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. |
For reasons of legitimacy and competence, the directive has to be rejected. If not rejected, scope and definitions have to be narrowed severely. |
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| No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime | For conclusion and analysis see our [http:analysis analysis page]. |
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| == Elements of a crime == | ------------------- |
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| Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] | == Full name == |
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| "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: | 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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| - 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. |
2005/0127 (COD) |
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| == links == | ------------------------------------------------------- |
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| [http://www.ipred.org/2005 the 2005 proposals] | |
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| 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) | 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.] |
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| [http://www.ipred.org/Hilty Hilty:] 4 basic elements | [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) |
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| [http://wiki.ffii.org/Ipred2GovLtrsEn IPRED2: Call on the 25 Governments to remove criminal sanctions in case of patent infringement] | The directive is an amended version, [http://www.ipred.org/history see the History] [http://tinyurl.com/9djqm EU docs] Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] [http://www.ipred.org/Hilty Hilty:] 4 basic elements [http://wiki.ffii.org/Ipred2060510En FFII analysis] [http://wiki.ffii.org/Ipred2GovLtrsEn FFII: Call on the 25 Governments to remove criminal sanctions in case of patent infringement] |
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[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] 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] |
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| [http://tinyurl.com/9djqm EU docs] | ------------------- |
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| [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal] | == 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] |
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| [http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper] ----------------------------------- [http://www.ipred.org/ipred1 IPRED 1] (2004) ---------------------------------- 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 |
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| == How to use this site == | |
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| 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://www.ipred.org/ipred1 IPRED 1] (2004) - civil measures, adopted |
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| 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. |
[http://www.ipred.org/2005 the 2005 proposals] - criminal measures, retracted for formal reasons. |
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| To learn more about what a WikiWikiWeb is, read about MoinMoin:WhyWikiWorks and the MoinMoin:WikiNature. Also, consult the MoinMoin:WikiWikiWebFaq. | |
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| This wiki is powered by MoinMoin. | ---------- [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] ---------- |
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. It surely makes sense to combat clear cases of piracy. But does it make sense to combat other infringements too? No. Other infringements occur during normal commercial business conduct. 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? Will this 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 inhibits the desired freedom to act in the market. The Commission criminalises the industry.
By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. 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. 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. But do we really want to see Bill Gates in prison?
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, these 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
For reasons of legitimacy and competence, the directive has to be rejected. 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)
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]
[http://tinyurl.com/9djqm EU docs]
Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.]
[http://www.ipred.org/Hilty Hilty:] 4 basic elements
[http://wiki.ffii.org/Ipred2060510En FFII analysis]
[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]
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]