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= Intellectual Property Rights Enforcement Directive 2 = '''Makes violations of "intellectual property rights", such as patents, a crime. Makes 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 == |
------ [[http://www.ipred.org/MainPage Introduction]] [[http://www.ipred.org/analysis Analysis]] [[http://www.ipred.org/howto How To]] [[http://www.ipred.org/factsheet Fact sheet]] [[http://www.ipred.org/download Downloading]] ------ |
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== Scope == | |
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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. |
= Legal Affairs Committee washes hands in innocence = |
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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 | The European Parliament Legal Affairs Committee [http://action.ffii.org/ipred2/JURI_Tabled_Amendments voted] on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place? |
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== Elements of a crime == | It seems to be the new trick in town since the Constitution was voted down: leave it to the Court. Even if the Treaty does not provide enough space, nobody can stop the Court. It has been called a legal coup d'etat here and there. |
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Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] | The approach taken by the Committee will lead to many years of legal uncertainty, a huge threat potential that hampers the freedom to act in the market. Criminal law has to be precise, this age old principle is disregarded by the Committee. |
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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: | Everybody wants to limit the directive to clear cases of piracy. The [http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf Max Planck Institute], together with the [http://www.cipa.org.uk/download_files/preliminary_Proposed_Enforcement.pdf Chartered Institute of Patent Agents] gave detailed recommendations to solve this issue. Non of these recommendations made it to the Legal Affairs Committee report. |
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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.) | For instance amendment 30: "This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights in the context of counterfeiting and piracy." |
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- Commercial activity with an intention to earn a profit | Piracy is not defined. And the formulation can be turned around: These are measures in the context of counterfeiting and piracy, they are very broad, so apparently piracy and counterfeiting have to be seen in a broad way. Like this it only leads to word inflation. How strong is the limitation? The ECJ can even turn a treaty around, as they showed with C-176/03. |
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- Potential to cause considerable damage | A clear limitation, based on the work of the Max Planck Institute, was overwhelmingly voted down: "For the purposes of this Directive, 'infringement' means an infringement where the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion." |
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- Intent or contingent intent (dolus eventualis)" | The importance of this limitation, meant to exclude conflicts over the extent of protection by legitimate commercial enterprises, was not seen by the Committee. |
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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. | The Commission proposal makes inciting an infringement a crime too. This is a huge threat to everybody in the software and the internet industry. From FFII to BSA run amok against this. It is still in. Design rights, which are unexamined, are still in. The Chartered Institute of Patent Agents about them: "The position in relation to registered designs is particularly difficult. It is widely recognised that the effect of having no substantive examination is that there are many designs which are registered which are not valid. If criminal sanctions applied to infringement of such rights then it would seriously impact on the freedom of others to use those designs. Even if it were a defence to show that the registered design was invalid (or that it was believed to be), it is likely that there would be a substantial adverse effect on legitimate competitors, who would not be willing to take the risk of criminal liability. Commercial organisations are willing to take a commercial risk in relation to civil liability – that they will be found liable for damages if their commercial judgement is wrong; but such issues should be left to civil remedies, not to criminal ones." Wise words which were not picked up by the Legal Affairs Committee. A solid definition of commercial scale by the Max Planck institute was not used: "commercial activity with an intention to earn a profit". The rapporteur invented: "(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain a commercial advantage; this would exclude acts carried out by private users for personal and not for profits purposes;" "This would" shows the origin, a civil law consideration (IPRED). It is weak and not suited for criminal law. |
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== Rejection == | |
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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 [http://wiki.ffii.org/IpredDonner060428En a competitive advantage] of member states having lower penalties. The Commission does not even try to make that case. See also [http://www.ipred.org/Hilty Hilty] | = The Prosecution Paradise Directive = |
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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 ground for including patent infringement in this directive. There are 10 more IP rights for which this question has to be answered. | All over Europe piracy and counterfeiting of copyright and trademark rights are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The European Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, the proposal criminalises IPR disputes that are essentially of a civil nature and occur between legitimate commercial enterprises. Even untested rights, which may soon evaporate in a civil court cases, become grounds for prosecution. And the rights holders may assist the police. |
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If the competence issue is solved for some of the IP rights, then the 4 requirements of a crime (see above) have to be met in order to meet the subsidiarity and proportionality requirements. The Commission proposal does not meet them. | Some Members of the European Parliament even proposed in amendments to remove the "commercial scale" condition or to weaken it, to remove "intentional", to involve consumers, to criminalise the young generation. |
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Without the competence, subsidiarity and proportionality requirements met, the directive will be illegal, has to be rejected. | A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls. |
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As far as many companies are concerned, patents have to go out - a political reason for rejection. == == == |
In a knowledge economy, owning information is a certain win. But you still have to fight it out in civil courts sometimes. It is easier and cheaper if the state (the prosecutor) takes care of eliminating competitors, however weak your rights may be, however justified your competitors acts may be. Criminal courts are inexperienced with IP, they will readily provide court orders, criminal law gives wide competences. Litigation companies (trolls) will be able to put maximum pressure on companies that create products and extort disproportional license fees. The current proposals create huge privacy risks when "IP owners" can direct investigation into anyone they accuse of "piracy". |
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[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) | The eighties of the last century were characterised with "get rich fast", it was a poker game. This is worse. Winner takes all, and the others can go to jail, kids included. It's jeopardizing Europe's future. |
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[http://tinyurl.com/9djqm EU docs] | We assume nobody deliberately wants to create a Prosecution Paradise. === Measures to take === 1 Amendments making the directive broader in scope have to be rejected. 2 The crime has to be defined as proposed by the [http://www.ipred.org/art3 Max Planck Institute]. 3 Weak rights have to be taken out of the scope. In fact, only the rights known to be pirated can stay in: copyright and trademark right. 4 Art 7, which allows the rights holders to assist the police, has to be deleted. 5 The criminal measures to combat piracy and counterfeiting are already available. At best, a directive will only have symbolic meaning. A far more realistic approach was suggested by the Dutch Parliament. Its [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw letter] should be reconsidered. There should be no hesitation to reject the directive. |
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[http://www.ipred.org/2005 the 2005 proposals] 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) |
-------------------- [[BR]] |
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[http://www.ipred.org/Hilty Hilty:] 4 basic elements | |
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[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] |
= We do not want our kids to be criminals - just for enjoying a videoclip on YouTube = |
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[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal] | == Legal Affairs committee votes on criminalising downloading == Monday Februari 26 and Tuesday Februari 27, 2007, the European Parliament's Legal Affairs committee will discuss and vote on a proposal by Mr Manders, MEP, to [http://www.ipred.org/download criminalise downloading]. |
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[http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper] | ----------------------------------- [[BR]] |
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----------------------------------- | = The Criminal Measures IP Directive: European Commission criminalises the industry = |
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[http://www.ipred.org/ipred1 IPRED 1] (2004) | ''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. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.'' |
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---------------------------------- | == Commercial infringements == 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? Is this copycat or will the 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 creates a big threat potential that inhibits the desired freedom to act in the market. == Bizarre consequences == By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. 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. With this directive, we could see Bill Gates in prison. 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. == Superfluous == 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, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems. == Carte blanche == 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? == No competence == 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 its competence] with this directive. |
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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] ------------------------ 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 == | == Conclusion and analysis == |
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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. | The directive has to be rejected: * it is misguided, superfluous and outrageous * the Community lacks legitimacy and competence |
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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. |
If not rejected, member states should take the directive to the European Court of Justice. |
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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. | A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question. |
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This wiki is powered by MoinMoin. | 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 COM(2006)0168 C6‑0233/2005 2005/0127(COD) * [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf English] More translations will be available later on. Change "en" twice in the link for translations. * [http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf French] * [http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf German] * [http://tinyurl.com/9djqm All EU documents on the subject] ------------------------------------------------------- == Links == * [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en Commission announcement] * The directive is an amended version, [http://www.ipred.org/history see the History] * [http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf Max Planck Institute: Statement on Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights] ([http://tinyurl.com/y7yfvh as tinyurl]) * [http://action.ffii.org/ipred2 FFII action page] * [http://www.lawsociety.org.uk/secure/file/157008/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/ipcriminalsanctions310806.pdf Comments by the Law Society of Engeland and Wales] [http://tinyurl.com/y79cfk (tinyurl)] * [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw Dutch Parliament] * [http://www.edri.org/edrigram/number4.9/ipcriminal EDRI] * [http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSF Europe] * [http://c-176-03.blogspot.com/2006/11/european-court-of-justice-crosses.html European Court of Justice crosses the Rubicon] * Reinier Bakels presentation for SANE: ISO Open Document Format attachment:RBB060517.odp PDF attachment:RBB060517.pdf !PowerPoint attachment:RBB060517.ppt !OpenOffice.org attachment:RBB060517.sxi * [http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk] * EU News [http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html Criminal law] | [http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html Constitution] ------------------- == 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/MainPage Introduction http://www.ipred.org/analysis Analysis http://www.ipred.org/howto How To http://www.ipred.org/factsheet Fact sheet http://www.ipred.org/download Downloading
Legal Affairs Committee washes hands in innocence
The European Parliament Legal Affairs Committee [http://action.ffii.org/ipred2/JURI_Tabled_Amendments voted] on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place?
It seems to be the new trick in town since the Constitution was voted down: leave it to the Court. Even if the Treaty does not provide enough space, nobody can stop the Court. It has been called a legal coup d'etat here and there.
The approach taken by the Committee will lead to many years of legal uncertainty, a huge threat potential that hampers the freedom to act in the market. Criminal law has to be precise, this age old principle is disregarded by the Committee.
Everybody wants to limit the directive to clear cases of piracy. The [http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf Max Planck Institute], together with the [http://www.cipa.org.uk/download_files/preliminary_Proposed_Enforcement.pdf Chartered Institute of Patent Agents] gave detailed recommendations to solve this issue. Non of these recommendations made it to the Legal Affairs Committee report.
For instance amendment 30: "This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights in the context of counterfeiting and piracy."
Piracy is not defined. And the formulation can be turned around: These are measures in the context of counterfeiting and piracy, they are very broad, so apparently piracy and counterfeiting have to be seen in a broad way. Like this it only leads to word inflation. How strong is the limitation? The ECJ can even turn a treaty around, as they showed with C-176/03.
A clear limitation, based on the work of the Max Planck Institute, was overwhelmingly voted down: "For the purposes of this Directive, 'infringement' means an infringement where the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion."
The importance of this limitation, meant to exclude conflicts over the extent of protection by legitimate commercial enterprises, was not seen by the Committee.
The Commission proposal makes inciting an infringement a crime too. This is a huge threat to everybody in the software and the internet industry. From FFII to BSA run amok against this. It is still in.
Design rights, which are unexamined, are still in. The Chartered Institute of Patent Agents about them: "The position in relation to registered designs is particularly difficult. It is widely recognised that the effect of having no substantive examination is that there are many designs which are registered which are not valid. If criminal sanctions applied to infringement of such rights then it would seriously impact on the freedom of others to use those designs. Even if it were a defence to show that the registered design was invalid (or that it was believed to be), it is likely that there would be a substantial adverse effect on legitimate competitors, who would not be willing to take the risk of criminal liability. Commercial organisations are willing to take a commercial risk in relation to civil liability – that they will be found liable for damages if their commercial judgement is wrong; but such issues should be left to civil remedies, not to criminal ones."
Wise words which were not picked up by the Legal Affairs Committee.
A solid definition of commercial scale by the Max Planck institute was not used: "commercial activity with an intention to earn a profit". The rapporteur invented: "(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain a commercial advantage; this would exclude acts carried out by private users for personal and not for profits purposes;"
"This would" shows the origin, a civil law consideration (IPRED). It is weak and not suited for criminal law.
The Prosecution Paradise Directive
All over Europe piracy and counterfeiting of copyright and trademark rights are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The European Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, the proposal criminalises IPR disputes that are essentially of a civil nature and occur between legitimate commercial enterprises. Even untested rights, which may soon evaporate in a civil court cases, become grounds for prosecution. And the rights holders may assist the police.
Some Members of the European Parliament even proposed in amendments to remove the "commercial scale" condition or to weaken it, to remove "intentional", to involve consumers, to criminalise the young generation.
A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.
In a knowledge economy, owning information is a certain win. But you still have to fight it out in civil courts sometimes. It is easier and cheaper if the state (the prosecutor) takes care of eliminating competitors, however weak your rights may be, however justified your competitors acts may be. Criminal courts are inexperienced with IP, they will readily provide court orders, criminal law gives wide competences. Litigation companies (trolls) will be able to put maximum pressure on companies that create products and extort disproportional license fees. The current proposals create huge privacy risks when "IP owners" can direct investigation into anyone they accuse of "piracy".
The eighties of the last century were characterised with "get rich fast", it was a poker game. This is worse. Winner takes all, and the others can go to jail, kids included. It's jeopardizing Europe's future.
We assume nobody deliberately wants to create a Prosecution Paradise.
Measures to take
1 Amendments making the directive broader in scope have to be rejected.
2 The crime has to be defined as proposed by the [http://www.ipred.org/art3 Max Planck Institute].
3 Weak rights have to be taken out of the scope. In fact, only the rights known to be pirated can stay in: copyright and trademark right.
4 Art 7, which allows the rights holders to assist the police, has to be deleted.
5 The criminal measures to combat piracy and counterfeiting are already available. At best, a directive will only have symbolic meaning. A far more realistic approach was suggested by the Dutch Parliament. Its [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw letter] should be reconsidered. There should be no hesitation to reject the directive.
We do not want our kids to be criminals - just for enjoying a videoclip on YouTube
Legal Affairs committee votes on criminalising downloading
Monday Februari 26 and Tuesday Februari 27, 2007, the European Parliament's Legal Affairs committee will discuss and vote on a proposal by Mr Manders, MEP, to [http://www.ipred.org/download criminalise downloading].
The Criminal Measures IP Directive: 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. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.
Commercial infringements
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? Is this copycat or will the 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 creates a big threat potential that inhibits the desired freedom to act in the market.
Bizarre consequences
By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. 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. With this directive, we could see Bill Gates in prison. 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.
Superfluous
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, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.
Carte blanche
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?
No competence
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 its competence] with this directive.
Conclusion and analysis
The directive has to be rejected:
- it is misguided, superfluous and outrageous
- the Community lacks legitimacy and competence
If not rejected, member states should take the directive to the European Court of Justice.
A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question.
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
COM(2006)0168
C6‑0233/2005
2005/0127(COD)
More translations will be available later on. Change "en" twice in the link for translations.
[http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf French]
[http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf German]
[http://tinyurl.com/9djqm All EU documents on the subject]
Links
[http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en Commission announcement]
The directive is an amended version, [http://www.ipred.org/history see the History]
[http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf Max Planck Institute: Statement on Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights] ([http://tinyurl.com/y7yfvh as tinyurl])
[http://action.ffii.org/ipred2 FFII action page]
[http://www.lawsociety.org.uk/secure/file/157008/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/ipcriminalsanctions310806.pdf Comments by the Law Society of Engeland and Wales] [http://tinyurl.com/y79cfk (tinyurl)]
[http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw Dutch Parliament]
[http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSF Europe]
[http://c-176-03.blogspot.com/2006/11/european-court-of-justice-crosses.html European Court of Justice crosses the Rubicon]
Reinier Bakels presentation for SANE: ISO Open Document Format attachment:RBB060517.odp PDF attachment:RBB060517.pdf PowerPoint attachment:RBB060517.ppt OpenOffice.org attachment:RBB060517.sxi
[http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk]
EU News [http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html Criminal law] | [http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html Constitution]
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]