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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. Adolescents that share files on the internet can be treated as 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? Ipred.org says no. A Union that lacks legitimacy, writing criminal laws - it is the start of oppression. |
= European Commission criminalises the industry = |
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| And the answer is certainly no, if the Commission exceeds its competence. As minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En pointed out], harmonisation of penalties should only be done if there is a real EU interest. The [http://www.ipred.org/Hilty only legal ground] for a directive like this, a harmonisation of criminal measures, is a distortion of trade, i.e, if the non-harmonised state leads to a competitive advantage of member states having lower penalties. | |
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| In 10 of the EU's 25 countries patent infringement is a crime. Does the fact that it is not a crime in all 25 countries lead to distortion in trade, does it give the countries in which it is not a crime a competitive advantage? Nobody has ever claimed such a thing. There is no legal ground for including patent infringement in this directive. There are 10 more IP rights for which this question has to be answered. | The European Commission has proposed a directive to [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en criminalise all intentional commercial scale infringements] of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. The Commission goes much further, disregarding the fact that beyond copyright "piracy" and trade mark counterfeiting, infringements of "IP-rights" are very complicated. Such infringements often occur during normal business conduct. The European Commission criminalises the industry. |
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| If the competence issue is solved for some of the IP rights, then the 4 requirements of a crime (see below) have to be met in order to meet the subsidiarity and proportionality requirements. The Commission proposal does not meet them. | 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. |
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| Without the competence, subsidiarity and proportionality requirements met, the directive is illegal, has to be rejected. | Criminal courts are not the right place for complicated infringements. Civil procedures are the right choice for them, and more rewarding for the right holders since they can ask for damages. Apart from blatent cases of piracy, only after a civil trial it is known whether an alleged infringement is indeed an infringement. |
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| As far as many companies are concerned, patents have to go out - a political reason for rejection. | In all European countries copyright piracy and trade mark counterfeiting are already forbidden. Unlike the directive, these national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems. |
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| Should we want a Union with a democratic deficit to write our criminal laws? - a political reason for rejection. | 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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| Do we want our adolescents that share files on the internet to be treated as organised criminals? - yet an other reason for rejection. | |
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| 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. | -------------------------------------------------- == 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) ------------------------------------------------------- |
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| Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] | |
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[http://www.ipred.org/history History] == Main points == |
The directive is an amended version, [http://www.ipred.org/history see the History] |
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| == Scope == Patents have to be taken out. [http://wiki.ffii.org/Ipred2GovLtrsEn FFII:] "It is in practice impossible to write and sell software products without certainty that your product does not violate one of the 65,000 software or business method patents granted by the European Patent Office." [http://wiki.ffii.org/IpredEp051122En Others] protested criminalisation of patent infringement too. No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime == Elements of a crime == Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] "As a matter of fact, a harmonisation of IP criminal statutes can be justified from the point of view of the principles of subsidiarity and proportionality only in connection with actions by which the following elements of a crime are fulfilled cumulatively: - Identity of the exploited object of protection (the good takes on characteristic elements of a protected product or label in a targeted and unmodified fashion – construction, assembly, etc.) - Commercial activity with an intention to earn a profit - Potential to cause considerable damage - Intent or contingent intent (dolus eventualis)" Note these are the minimal elements. They are better defined more sharp to prevent accidents. The Commission proposal does not even meet the minimal elements. Since the stated aim of the directive is to combat "piracy", the fourth requirement should be "criminal intention", not "Intent or contingent intent". == == == [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) |
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| [http://www.ipred.org/2005 the 2005 proposals] 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) |
Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] |
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| [http://www.ipred.org/Hilty Hilty:] 4 basic elements | [http://www.ipred.org/Hilty Hilty:] 4 basic elements [http://wiki.ffii.org/Ipred2060510En FFII analysis] |
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| Reinier Bakels made a presentation for SANE. You can download it in: | |
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| * ISO Open Document Format attachment:RBB060517.odp * PDF attachment:RBB060517.pdf * PowerPoint (please [http://www.openoffice.org download OpenOffice] and use ISO Open Document Format) attachment:RBB060517.ppt * OpenOffice.org 1 attachment:RBB060517.sxi |
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| [http://www.ipred.org/ipred1 IPRED 1] (2004) | ------------------- |
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| ---------------------------------- | == 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.ipred.org/ipred1 IPRED 1] (2004) - civil measures, adopted [http://www.ipred.org/2005 the 2005 proposals] - criminal measures, retracted for formal reasons. ---------- |
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| ------------------------------- | ---------- |
European Commission criminalises the industry
The European Commission has proposed a directive to [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en criminalise all intentional commercial scale infringements] of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. The Commission goes much further, disregarding the fact that beyond copyright "piracy" and trade mark counterfeiting, infringements of "IP-rights" are very complicated. Such infringements often occur during normal business conduct. The European Commission criminalises the industry.
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.
Criminal courts are not the right place for complicated infringements. Civil procedures are the right choice for them, and more rewarding for the right holders since they can ask for damages. Apart from blatent cases of piracy, only after a civil trial it is known whether an alleged infringement is indeed an infringement.
In all European countries copyright piracy and trade mark counterfeiting are already forbidden. Unlike the directive, these national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.
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]