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| ------ [[[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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| ------ | |
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| = European Commission exceeds competence with criminal measures on violations of "intellectual property" rights = | = The Criminal Measures IP Directive: Criminalizing 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.'' |
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| '''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.''' | A badly drafted Commission proposal was matched by badly drafted European Parliament amendments, and an amendment changed after the vote. The proposal is now in the hands of the Council. |
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| 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. | Behind closed doors the EU, US and Japan negociate an Anti-Counterfeiting Trade Agreement (ACTA), with much the same content, or even worse. See our [[acta|ACTA]] page. |
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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. | === Commission withholds key study on criminal measures from European Parliament === * [[http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament|Commission withholds key study on criminal measures from European Parliament]] === Official Journal of the European Union publishes corrupted text === ==== Update: In a letter to MEP Eva Lichtenberger, the President of the European Parliament admitted a mistake was made. The text will be corrected. ==== Adopted amendment 15, excluding parallel importation, is not incorporated in the consolidated text. MEP Eva Lichtenberger wrote the President of the European Parliament a letter. |
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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. | [[http://www.heise.de/newsticker/meldung/100175|Heise has the story.]] |
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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. | [[http://action.ffii.org/ipred2/Mistake_in_EP_provisional_consolidated_text_Criminal_Measures_IP_directive|The FFII has the analysis]] |
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| Without the competence, subsidiarity and proportionality requirements met, the directive is illegal, has to be rejected. | Despite formal objections raised on 4 December 2007 by MEP and shadow rapporteur Eva Lichtenberger the Official Journal of the European Union published the [[http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament|controversial and contested version]]. See the second part of the PR. |
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| As far as many companies are concerned, patents have to go out - a political reason for rejection. | [[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:074E:0527:0533:EN:PDF|The Official Journal of the European Union]] |
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| Should we want a Union with a democratic deficit to write our criminal laws? - a political reason for rejection. | === Coalition report on the European Parliament vote === Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP 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. | [[http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses,_Consumers,_Innovators|FFII press release]] |
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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. | [[http://action.ffii.org/ipred2/Report_on_EP_vote|FFII/BEUC/EBLIDA/EFF Coalition report on the vote]] |
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| === Carte Blanche Criminal Law === Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive. |
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| 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.] | Take action: [[http://www.copycrime.org|www.copycrime.org]] |
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| Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] | Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states). |
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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) | Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison. |
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| [[http://www.ipred.org/april2007|read more]] | |
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| [http://www.ipred.org/history History] | === 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? |
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| == Main points == | [[http://www.ipred.org/legalaffairs07|read more]] |
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| === The Prosecution Paradise Directive === A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls. |
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| == Scope == | [[http://www.ipred.org/prosecutionparadise|read more]] |
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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. | === 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]]. |
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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 | [[http://action.ffii.org/ipred2/JURI_Tabled_Amendments|The proposal was rejected.]] |
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| ---------- <<BR>> |
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| = 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.'' |
|
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| == Elements of a crime == | === 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. |
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| Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] | === 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. |
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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: | === 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. |
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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.) | === 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? |
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| - Commercial activity with an intention to earn a profit | === 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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| - Potential to cause considerable damage | ---------- |
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| - Intent or contingent intent (dolus eventualis)" | == Conclusion and analysis == The directive has to be rejected: |
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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. Since the stated aim of the directive is to combat "piracy", the fourth requirement should be "criminal intention", not "Intent or contingent intent". | * 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. |
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| == == == | 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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| For conclusion and analysis see our [[http:analysis|analysis page]]. | |
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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) | ---------- |
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| [http://tinyurl.com/9djqm EU docs] | == 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 |
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| COM(2006)0168 | |
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| [http://www.ipred.org/2005 the 2005 proposals] | C6‑0233/2005 |
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| 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) | 2005/0127(COD) |
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| * [[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. |
|
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| [http://www.ipred.org/Hilty Hilty:] 4 basic elements | * [[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|Council documents on the subject]] * [[http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=193131#381074|Commission]] * [[http://preview.tinyurl.com/ytfdrd|Council Substantive Criminal Law Working Groups' agenda]] * [[http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=COPEN&dd_DATE_REUNION=|COPEN]] * [[http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=JAI&dd_DATE_REUNION=|JAI]] * [[http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=DROIPEN&dd_DATE_REUNION=|DROIPEN]] ---------- |
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| [http://wiki.ffii.org/Ipred2GovLtrsEn FFII: Call on the 25 Governments to remove criminal sanctions in case of patent infringement] | == 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]] * [[http://ue.eu.int/uedocs/cms_data/docs/2004/6/21/Councils%20rules%20of%20procedure.pdf|Council rules of procedure]] |
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| [http://wiki.ffii.org/JuriHearing060131En Hearing 31st Jan. 2006] | ---------- |
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| [http://www.ffii.org/~ante/FFII-ipred051127.pdf FFII letter Nov 27th] | == 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. |
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| [http://wiki.ffii.org/IpredEp051122En European Parliament hearing 22 November 2005] | 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. |
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| [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] ------------------------------- |
ipred.org is set up by [[http://www.vrijschrift.org|Vrijschrift.org]] |
The Criminal Measures IP Directive: Criminalizing the industry
The European Commission has proposed a 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.
A badly drafted Commission proposal was matched by badly drafted European Parliament amendments, and an amendment changed after the vote. The proposal is now in the hands of the Council.
Behind closed doors the EU, US and Japan negociate an Anti-Counterfeiting Trade Agreement (ACTA), with much the same content, or even worse. See our ACTA page.
Commission withholds key study on criminal measures from European Parliament
Official Journal of the European Union publishes corrupted text
Update: In a letter to MEP Eva Lichtenberger, the President of the European Parliament admitted a mistake was made. The text will be corrected.
Adopted amendment 15, excluding parallel importation, is not incorporated in the consolidated text. MEP Eva Lichtenberger wrote the President of the European Parliament a letter.
Despite formal objections raised on 4 December 2007 by MEP and shadow rapporteur Eva Lichtenberger the Official Journal of the European Union published the controversial and contested version. See the second part of the PR.
The Official Journal of the European Union
Coalition report on the European Parliament vote
Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive.
FFII/BEUC/EBLIDA/EFF Coalition report on the vote
Carte Blanche Criminal Law
Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive.
Take action: www.copycrime.org
Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states).
Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison.
Legal Affairs Committee washes hands in innocence
The European Parliament Legal Affairs Committee 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?
The Prosecution Paradise Directive
A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.
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 criminalise downloading.
The Criminal Measures IP Directive: European Commission criminalises the industry
The European Commission has proposed a 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 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 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.
Links
The directive is an amended version, see the History
Max Planck Institute: Statement on Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights (as tinyurl)
Reinier Bakels presentation for SANE: ISO Open Document Format RBB060517.odp PDF RBB060517.pdf PowerPoint RBB060517.ppt OpenOffice.org RBB060517.sxi
EU News Criminal law | 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 Vrijschrift.org