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| = European Commission exceeds competence with criminal measures on infringements of "intellectual property" rights = | = 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. It surely makes sense to combat clear cases of piracy. But does it make sense to combat other infringements too? No. Other infringements occur during normal commercial business conduct. 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? Will this 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 inhibits the desired freedom to act in the market. The Commission criminalises the industry. By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. 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. 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. But do we really want to see Bill Gates in prison? 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, these national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems. 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? 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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| The European Commission has proposed [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en 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. | -------------------------------------------------- |
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| 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. These national laws are carefully balanced, the directive will distort this. Also, companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail. | == Conclusion and analysis == |
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| 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. | For reasons of legitimacy and competence, the directive has to be rejected. If not rejected, scope and definitions have to be narrowed severely. |
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| Does the Community have the competence to make this directive? The Dutch Parliament [http://www.ipred.org/NlParl060629 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. | For conclusion and analysis see our [http:analysis analysis page]. |
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| With its weak definitions, the directive distorts carefully balanced national procedural law systems. | ------------------- |
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| The directive would make all intentional commercial scale infringments of "intellectual property rights" a criminal offence. But not all intentional commercial violations of these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. |
== Full name == |
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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. | 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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| == Main points == | |
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| Do we want European criminal law? Does the Community have competence? Are the subsidiarity and proportionality tests made? == Scope == The directive includes all "IP-rights", "at least" 11. 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 will have an adverse effect on competion and innovation. For instance, 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". == == == 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 [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) |
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[http://wiki.ffii.org/Ipred2060510En FFII analysis] |
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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) | [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. |
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. It surely makes sense to combat clear cases of piracy. But does it make sense to combat other infringements too? No. Other infringements occur during normal commercial business conduct. 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? Will this 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 inhibits the desired freedom to act in the market. The Commission criminalises the industry.
By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. 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. 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. But do we really want to see Bill Gates in prison?
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, these national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.
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?
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]