|
Size: 7132
Comment:
|
Size: 9851
Comment:
|
| Deletions are marked like this. | Additions are marked like this. |
| Line 9: | Line 9: |
| = European Commission exceeds competence with criminal measures on infringements 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 12: | 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 companies that are not pirates. And even 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 our doing with your computer. | |
| Line 14: | Line 13: |
| 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 Prosecution Paradise Directive = |
| Line 16: | Line 15: |
| Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. The first question to be asked is whether we want this. Should we want a Union with a democratic deficit to write our criminal laws? Our answer is no, we believe only countries have enough legitimacy to make criminal laws. | All over Europe piracy and counterfeiting are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, even normal business acts by regular companies. Even untested rights, which may soon evaporate in a civil court cases, become grounds for prosecution. And the rights holders may assist the police. |
| Line 18: | Line 17: |
| Does the Community have the competence to make this directive? The Dutch Parliament unanimously decided the Commission exceeds it competence with this directive. And Donner, minister of Justice for the Netherlands, was not pleased too. He [http://wiki.ffii.org/IpredDonner060428En pointed out] that 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. The Commission does not even try to make that case. | Some MEPs 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. |
| Line 20: | Line 19: |
| The directive includes all "IP-rights". As we saw above, copyright piracy and trade mark counterfeiting are already forbidden in all European countries. And for some other rights, like patents, criminal measures have an adverse effect on competion and innovation. | Why do some push for a Prosecution Paradise? |
| Line 22: | Line 21: |
| With its weak definitions, the directive distorts carefully balanced national procedural law systems. | 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. Suing the young generation for high damages is bad PR, recording companies rather leave it to state prosecutors. |
| Line 24: | Line 23: |
| 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 short, criminalisation is used for profit maximalisation. Put maximum pressure on competitors, make them crack. |
| Line 26: | Line 25: |
| 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.] | 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. It's utterly cynical. It's jeopardizing Europe's future. The Community will never win the hearts and minds of the Europeans if it supports such an agenda. |
| Line 28: | Line 27: |
| Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.] | The criminal measures to combat piracy and counterfeiting are already available. Reject the directive. |
| Line 30: | Line 29: |
| [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) | |
| Line 32: | Line 30: |
| [http://www.ipred.org/history History] | = We do not want our kids to be criminals - just for enjoying a videoclip on YouTube = |
| Line 34: | Line 32: |
| == 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. |
|
| Line 38: | Line 33: |
| No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime | == Legal Affairs committee votes on criminalising downloading == |
| Line 40: | Line 35: |
| == Elements of a crime == Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:] |
Update: meeting and vote are postponed |
| Line 43: | Line 37: |
| "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: | |
| Line 45: | Line 38: |
| . - 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". |
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]. |
| Line 48: | Line 40: |
| == == == | |
| Line 50: | Line 41: |
| 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 |
----------------------------------- |
| Line 53: | Line 43: |
| [http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations) | |
| Line 55: | Line 44: |
| [http://tinyurl.com/9djqm EU docs] | = The Criminal Measures IP Directive: European Commission criminalises the industry = |
| Line 57: | Line 46: |
| [http://www.ipred.org/2005 the 2005 proposals] | ''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 59: | Line 48: |
| 2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS) | == Commercial infringements == |
| Line 61: | Line 50: |
| [http://www.ipred.org/Hilty Hilty:] 4 basic elements | 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. |
| Line 63: | Line 52: |
| [http://wiki.ffii.org/Ipred2GovLtrsEn FFII: Call on the 25 Governments to remove criminal sanctions in case of patent infringement] | == Bizarre consequences == |
| Line 65: | Line 54: |
| [http://wiki.ffii.org/JuriHearing060131En Hearing 31st Jan. 2006] | 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. |
| Line 67: | Line 56: |
| [http://www.ffii.org/~ante/FFII-ipred051127.pdf FFII letter Nov 27th] | == Superfluous == |
| Line 69: | Line 58: |
| [http://wiki.ffii.org/IpredEp051122En European Parliament hearing 22 November 2005] | 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. |
| Line 71: | Line 60: |
| [http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk] | == Carte blanche == |
| Line 73: | Line 62: |
| [http://wiki.ffii.org/Ipred2En FFII] | 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? |
| Line 75: | Line 64: |
| [http://plone.ffii.org/Members/coordinator/FFII%20UK%20IPRED2%20consultation.pdf/download FFIII-UK] | == No competence == |
| Line 77: | Line 66: |
| [http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSFE] | 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 79: | Line 68: |
| [http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal] | |
| Line 81: | Line 69: |
| Reinier Bakels made a presentation for SANE. You can download it in: | -------------------------------------------------- |
| Line 83: | Line 71: |
| * 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] |
|
| Line 89: | Line 72: |
| ---------- [http://www.ipred.org/ipred1 IPRED 1] (2004) |
== Conclusion and analysis == |
| Line 92: | Line 74: |
| ---------- [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] |
The directive has to be rejected: * it is misguided, superfluous and outrageous * the Community lacks legitimacy and competence |
| Line 95: | Line 78: |
| ---------- | 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] ------------------------------------------------------- == 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
The Prosecution Paradise Directive
All over Europe piracy and counterfeiting are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, even normal business acts by regular companies. 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 MEPs 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.
Why do some push for a Prosecution Paradise?
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. Suing the young generation for high damages is bad PR, recording companies rather leave it to state prosecutors.
In short, criminalisation is used for profit maximalisation. Put maximum pressure on competitors, make them crack.
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. It's utterly cynical. It's jeopardizing Europe's future. The Community will never win the hearts and minds of the Europeans if it supports such an agenda.
The criminal measures to combat piracy and counterfeiting are already available. Reject the directive.
We do not want our kids to be criminals - just for enjoying a videoclip on YouTube
Legal Affairs committee votes on criminalising downloading
Update: meeting and vote are postponed
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].
The Criminal Measures IP Directive: European Commission criminalises the industry
The European Commission has proposed a [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en directive] to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.
Commercial infringements
Beyond clear cases of piracy, it is impossible to tell in advance whether an act is an infringement or fair competition. On a daily basis companies try out the boundaries of "IP-rights". Is this product a look alike? Is this copycat or will the patent be invalidated? Is this work an independent recreation? Companies reach agreements or fight it out in civil courts. If a right was indeed infringed, damages are paid. This is a fair process. Adding criminal sanctions to this fair process creates a big threat potential that inhibits the desired freedom to act in the market.
Bizarre consequences
By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. It is impossible to write software without violating patents. A whole industry will be criminalised. Microsoft has been violating many patents, and had to pay huge damages. With this directive, we could see Bill Gates in prison. Even companies which merely use properly licensed software are criminalised, since such use is intentional, commercial scale and can infringe on software patents. And people who share files on the internet, on a not-for-profit basis, can be treated as organised criminals. You better watch what your kids are doing with your computer.
Superfluous
To combat piracy the legal means are already installed. What is actually needed is better coordination between countries. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. Unlike the directive, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.
Carte blanche
An other bizarre aspect of the proposal is that is has an open end: all existing and future "IP-rights" are covered. It is a carte blanche. Seen this misguided, superfluous and outrageous directive, is there anyone who wants to give the Commission carte blanche?
No competence
Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. In our opinion, only countries have enough legitimacy to make criminal laws. The Dutch Parliament unanimously concluded the [http://wiki.ffii.org/IpredNlParl060629En Commission exceeds its competence] with this directive.
Conclusion and analysis
The directive has to be rejected:
- it is misguided, superfluous and outrageous
- the Community lacks legitimacy and competence
If not rejected, member states should take the directive to the European Court of Justice.
A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question.
For conclusion and analysis see our [http:analysis analysis page].
Full name
Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights
COM(2006)0168
C6‑0233/2005
2005/0127(COD)
More translations will be available later on. Change "en" twice in the link for translations.
[http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf French]
[http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf German]
[http://tinyurl.com/9djqm All EU documents on the subject]
Links
[http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en Commission announcement]
The directive is an amended version, [http://www.ipred.org/history see the History]
[http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf Max Planck Institute: Statement on Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights] ([http://tinyurl.com/y7yfvh as tinyurl])
[http://action.ffii.org/ipred2 FFII action page]
[http://www.lawsociety.org.uk/secure/file/157008/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/ipcriminalsanctions310806.pdf Comments by the Law Society of Engeland and Wales] [http://tinyurl.com/y79cfk (tinyurl)]
[http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw Dutch Parliament]
[http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSF Europe]
[http://c-176-03.blogspot.com/2006/11/european-court-of-justice-crosses.html European Court of Justice crosses the Rubicon]
Reinier Bakels presentation for SANE: ISO Open Document Format attachment:RBB060517.odp PDF attachment:RBB060517.pdf PowerPoint attachment:RBB060517.ppt OpenOffice.org attachment:RBB060517.sxi
[http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk]
EU News [http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html Criminal law] | [http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html Constitution]
ipred.org
In 2004 the Council and European Parliament adopted an Intellectual Property Rights Enforcement Directive (IPRED). To make fast adoption possible (before 10 new members joined the EU), criminal penalties were taken out.
The criminal measures are back in the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (DCMEIPR ?). This new directive is often called IPRED 2.
ipred.org is set up by [http://www.vrijschrift.org Vrijschrift.org]