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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). '''Makes violations of "intellectual property rights", such as patents, a crime. Makes adolescents that share files organised criminals.'''
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Incidentally, 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?

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]
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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.		 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.
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== Rejection ==

There are good grounds for rejection. The 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. Both minister Donner (NL) and professor Hilty [http://wiki.ffii.org/IpredDonner060428En pointed this out already]. See also [http://www.ipred.org/Hilty Hilty]

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.
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Note these are the minimal elements. 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".

== == ==
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== Rejection == [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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There are good grounds for rejection. See [http://www.ipred.org/Hilty Hilty] and [http://www.ffii.org/~ante/FFII-ipred051122.pdf FFII] If the directive does not meet the requirements menioned above (scope and elements of a crime), the directive should surely be rejected.


== links ==		 [http://tinyurl.com/9djqm EU docs]
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[http://wiki.ffii.org/Ipred2GovLtrsEn IPRED2: Call on the 25 Governments to remove criminal sanctions in case of patent infringement] [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://tinyurl.com/9djqm EU docs]

[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal]		 [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal]
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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]

------------------------

Intellectual Property Rights Enforcement Directive 2

Makes violations of "intellectual property rights", such as patents, a crime. Makes adolescents that share files organised criminals.

Incidentally, 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?

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

Rejection

There are good grounds for rejection. The 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. Both minister Donner (NL) and professor Hilty [http://wiki.ffii.org/IpredDonner060428En pointed this out already]. See also [http://www.ipred.org/Hilty Hilty]

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.

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]

[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:

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