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= European Commission exceeds competence with criminal measures on violations of "intellectual property" rights =

'''IPRED2: Makes violations of "intellectual property rights", such as patents, a crime. Makes adolescents that share files organised criminals.'''

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? Certainly not if the Commission exceeds its competence. As minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En pointed out], 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. 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.

Should we want a Union with a democratic deficit to write our criminal laws? - a political reason for rejection.

Do we want your 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		 ------ [[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]] ------
Line 51: Line 13:
== Elements of a crime == = Legal Affairs Committee washes hands in innocence =
Line 53: Line 15:
Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] The 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?
Line 55: Line 17:
"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: 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.
Line 57: Line 19:
 - 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.) Everybody wants to limit the directive to clear cases of piracy. The Max Planck Institute, toghether with the Chartered Institute of Patent Agents gave detailed recommandations to solve this issue. Non of these recommandations made it to the Legal Affairs Committee report.
Line 59: Line 21:
 - Commercial activity with an intention to earn a profit 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."
Line 61: Line 23:
 - Potential to cause considerable damage 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.
Line 63: Line 30:
 - Intent or contingent intent (dolus eventualis)" 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."
Line 65: Line 34:
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". 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.
Line 67: Line 36:
== == == 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, but we cannot expect the Legal Affairs Committee to listen to wise words.

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 origine, a civil law consideration (IPRED). It is weak and not suited for criminal law.
Line 70: Line 56:
[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)
Line 72: Line 57:
[http://tinyurl.com/9djqm EU docs] = 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".
Line 75: Line 68:
[http://www.ipred.org/2005 the 2005 proposals] 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.
Line 77: Line 70:
2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) 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.
Line 80: Line 85:
[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]		 --------------------
[[BR]]
Line 99: Line 89:
[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal]
= We do not want our kids to be criminals - just for enjoying a videoclip on YouTube =
Line 102: Line 93:
[http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper] == 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].
Line 105: Line 99:
[[BR]]
Line 106: Line 101:
[http://www.ipred.org/ipred1 IPRED 1] (2004) = The Criminal Measures IP Directive: European Commission criminalises the industry =
Line 108: Line 103:
---------------------------------- ''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.
Line 111: Line 126:
[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		 --------------------------------------------------
Line 123: Line 129:
== How to use this site == == Conclusion and analysis ==
Line 125: Line 131:
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
Line 127: Line 135:
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.
Line 133: Line 137:
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.
Line 135: Line 139:
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 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.

Everybody wants to limit the directive to clear cases of piracy. The Max Planck Institute, toghether with the Chartered Institute of Patent Agents gave detailed recommandations to solve this issue. Non of these recommandations 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 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, but we cannot expect the Legal Affairs Committee to listen to wise words.

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 origine, 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.

BR

We do not want our kids to be criminals - just for enjoying a videoclip on YouTube

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].

BR

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.

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]

MainPage (last edited 2009-05-30 23:30:39 by localhost)