|
Size: 7681
Comment:
|
Size: 7881
Comment:
|
| Deletions are marked like this. | Additions are marked like this. |
| Line 9: | Line 9: |
| = European Commission exceeds competence with criminal measures on violations of "intellectual property" rights = | ------ [[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 11: | Line 11: |
| === 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 === |
|
| Line 15: | Line 12: |
| The European Commission has proposed a directive to criminalise infringements of "intellectual property rights" ("IP-rights), such as patents, copyright and trade marks. The stated aim is to combat "piracy". While massive infringements on for instance copyright are indeed a problem, the directive itself is a bigger problem. Due to very weak definitions the directive does not only criminalises pirates, but also normal companies. And even people who share on a not for profit basis files on the internet, can be treated as organised criminals. | = The second IPR Enforcement Directive: European Commission criminalises the industry = |
| Line 17: | Line 14: |
| Should severe infringements of "IP-rights" go unpunished? Will Europe become a pirate continent without the directive? No, in all European countries copyright piracy and trade mark counterfeiting are already forbidden. And companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail. | ''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.'' |
| Line 19: | Line 16: |
| Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. | == 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. -------------------------------------------------- == Legal Affairs committee votes on criminalising downloading == Monday January 29 and Tuesday January 30, 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]. ------------------ == 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) * [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] |
| Line 23: | Line 81: |
| 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. | |
| Line 25: | Line 82: |
| 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. | ------------------------------------------------------- |
| Line 27: | Line 84: |
| 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. | == Links == |
| Line 29: | Line 86: |
| 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://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] |
| Line 31: | Line 91: |
| Without the competence, subsidiarity and proportionality requirements met, the directive is illegal, has to be rejected. | * [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] |
| Line 33: | Line 99: |
| As far as many companies are concerned, patents have to go out - a political reason for rejection. | |
| Line 35: | Line 100: |
| Should we want a Union with a democratic deficit to write our criminal laws? - a political reason for rejection. | * EU News [http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html Criminal law] | [http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html Constitution] |
| Line 37: | Line 102: |
| Do we want our adolescents that share files on the internet to be treated as organised criminals? - yet an other reason for rejection. | ------------------- |
| Line 39: | Line 104: |
| 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. | == ipred.org == |
| Line 41: | Line 106: |
| 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.] | 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. |
| Line 43: | Line 108: |
| Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] | 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. |
| Line 45: | Line 110: |
| [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 == Elements of a crime == Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] "As a matter of fact, a harmonisation of IP criminal statutes can be justified from the point of view of the principles of subsidiarity and proportionality only in connection with actions by which the following elements of a crime are fulfilled cumulatively: . - Identity of the exploited object of protection (the good takes on characteristic elements of a protected product or label in a targeted and unmodified fashion – construction, assembly, etc.) - Commercial activity with an intention to earn a profit - Potential to cause considerable damage - Intent or contingent intent (dolus eventualis)" Note these are the minimal elements. They are better defined more sharp to prevent accidents. The Commission proposal does not even meet the minimal elements. Since the stated aim of the directive is to combat "piracy", the fourth requirement should be "criminal intention", not "Intent or contingent intent". == == == [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) [http://tinyurl.com/9djqm EU docs] [http://www.ipred.org/2005 the 2005 proposals] 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) [http://www.ipred.org/Hilty Hilty:] 4 basic elements [http://wiki.ffii.org/Ipred2GovLtrsEn FFII: Call on the 25 Governments to remove criminal sanctions in case of patent infringement] [http://wiki.ffii.org/JuriHearing060131En Hearing 31st Jan. 2006] [http://www.ffii.org/~ante/FFII-ipred051127.pdf FFII letter Nov 27th] [http://wiki.ffii.org/IpredEp051122En European Parliament hearing 22 November 2005] [http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk] [http://wiki.ffii.org/Ipred2En FFII] [http://plone.ffii.org/Members/coordinator/FFII%20UK%20IPRED2%20consultation.pdf/download FFIII-UK] [http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSFE] [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal] 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] ---------- [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] |
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
The second IPR Enforcement 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.
Legal Affairs committee votes on criminalising downloading
Monday January 29 and Tuesday January 30, 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].
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]