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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]] ------


= The second IPR Enforcement Directive =
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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) === 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) ===

----------------------

== Content ==

 * Introduction
 * Conclusion
 * Legitimacy
 * Competence
 * Subsidiarity
 * [http://www.ipred.org/art3 Elements of a crime]
 * Criminal intention
 * [http:art1 Carte blanche: open ended Scope]
 * A complete rewrite
 * Counterfeiting and piracy are already forbidden
 * Intentional commercial scale violations
  * All commercial activities are intentional
  * Not all commercial scale violations scale are piracy
  * Commercial scale not clear enough
  * Do we want not-for-profit file sharing to be organised crime?
 * Legal threats and abuse
 * Privatise the police
 * Distortion of carefully balanced procedural law systems
 * Criminal law should be the ultimum remedium
 * No harmonisation
 * A closer look at some of the rights
  * Patents unfit for criminal sanctions
  * Utility models
  * Design rights
  * Copyright not straightforward
  * Trade marks cases complicated and subtle
  * Trade names

------------------------------------
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==== European Commission criminalises the industry. Decent people can be treated as organised criminals. ====
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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. To meet the subsidiarity requirements, the scope has to be limited to copyright piracy and trade mark counterfeiting. Only sanctions against obvious cases of pirating can be harmonised. The definitions have to be as narrow as possible (See Elements of a crime and Criminal intention). The directive needs measures against abuse and legal threats. The directive should not threaten the neutrality of police investigation. Such a directive would not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, the directive is not essential, the Community lacks competence.




------------------------------------------------------
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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.  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? In our opinion, only countries have enough legitimacy to make criminal laws.
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Jan 31st 2006 the European Parliament's JURI committee held a public hearing on "The Effective Protection of Intellectual Property: a Challenge for Europe"

http://wiki.ffii.org/JuriHearing060131En

Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law said:
A recent European Court of Justice judgment [http://www.law.kuleuven.be/strafrecht/EnvironmentCrimeCase.PDF (C-176/03)] opens the possibility for the European Commission and Parliament to make directives containing criminal measures together, without the member states having a veto.

The Commission can only make directives with criminal measures together with the European Parliament if both the objective of the Community and the measures are essential. (See also [http://www.ipred.org/backdoor Backdoor])

The [http://wiki.ffii.org/IpredNlParl060629En Dutch Parliament concluded unanimously] that no competence has been granted to the Community for criminal measures against "IP-rights" infringements. The Dutch Parliament sent a letter to commission Frattini about this. [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw English] version, [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fy66g2qw French] version [http://tinyurl.com/gno6m tiny url EN]

Donner, minister of Justice for the Netherlands, [http://wiki.ffii.org/IpredDonner060428En pointed out] that harmonisation of penalties should only be done if there is a real EU interest.

The issue was also raised during a [http://register.consilium.europa.eu/pdf/en/06/st08/st08319.en06.pdf Council Working Party meeting]: "An opinion by the Council Legal Service on the impact of the Ruling of the
European Court of Justice in the case 176/03, on the proposed instrument and
in particular its scope, were welcome."




Jan 31st 2006 the European Parliament's JURI committee held a [http://wiki.ffii.org/JuriHearing060131En public hearing] on "The Effective Protection of Intellectual Property: a Challenge for Europe"

Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law said:
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- Whether pirated goods are available within individual Member States is irrelevant from the point of view of European law. Relevant are only barriers to entry to national markets, for example, in the form of border controls, and direct or indirect discrimination. (...)

- Whether EU Member States have implemented Art. 61 TRIPS according to their ob-ligations (Art. 300(7) EC) and in an appropriate manner has – to our knowledge – never been examined. Only when this implementation has proven insufficient is a further harmonisation justifiable.

- The effects of Directive 2004/48 of 29 April 20046 are not yet known; it has to be implemented by 29 April 2006, and all manner of experience remains outstanding as to whether the harmonisation of civil law will prove insufficient."

Donner, minister of Justice for the Netherlands, [http://wiki.ffii.org/IpredDonner060428En pointed out] that harmonisation of penalties should only be done if there is a real EU interest.

The Commission does not even try to motivate that there is a distortion of trade.

The [http://www.ipred.org/NlParl060629 Dutch Parliament concluded unanimously] that no competence has been granted to the Community for criminal measures against "IP-rights" infringements.








== Scope ==

The explanation on art 1 mentions the "[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2005/l_094/l_09420050413en00370037.pdf STATEMENT BY THE COMMISSION] concerning Article 2 of Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights"

This statement says: "The Commission considers that at least the following intellectual property rights are covered by the scope of the Directive:"

"At least" it says, and then follows a list with 11 "IP-rights".

This is not correct. All the concerned "IP-rights" should be mentioned in the directive itself.

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.

Below we will say more about the concerned "IP-rights".

The directive should not criminalise inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime.

 * Whether pirated goods are available within individual Member States is irrelevant from the point of view of European law. Relevant are only barriers to entry to national markets, for example, in the form of border controls, and direct or indirect discrimination.


 Mere obstacles to trade are insufficient for the adoption of a Community measure according to Art. 95 EC after the ECJ abandoned its jurisprudence to the opposite effect with the Keck decision of 1993.

 * Article 61 TRIPS already contains relatively wide-reaching provisions against trademark and copyright pirating which are binding on the Member States and the EU. It is doubtful whether additional wider-reaching harmonisation would be permissible.

 * In many countries (e.g. Germany), the IP criminal law – although well-developed – only plays a subordinate role in actual practice; criminal judgments in patent law are seldom; they have only marginal significance in copyright and trademark law.

 * The indispensability to harmonisation of, for example, environmental criminal law does not permit automatic conclusions with regard to other areas of law; what needs to be examined in each individual case is whether a lack of harmonisation results in a distortion of competition." (end of quote)

The Commission does not even try to motivate that there is a distortion of trade.

See also: Hilty, Kur, Peukert: [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 Stellungnahme des Max-Planck-Instituts] für Geistiges Eigentum, Wettbewerbs- und Steuerrecht zum Vorschlag für eine Richtlinie des Europäischen Parlaments und des Rates über strafrechtliche Maßnahmen zur Durchsetzung der Rechte des geistigen Eigentums, KOM(2006) 168 endgültig; GRUR Int, 55. Jahrgang, 01.09.2006

Upcoming ECJ judgment: [http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&Submit=Submit&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&typeord=ALLTYP&allcommjo=allcommjo&affint=affint&affclose=affclose&numaff=C-+440%2F05&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=&domaine=&mots=&resmax=100 C-440/05]


== Subsidiarity ==

Since the Community does not have competence to make this directive, it is unnecessary to look at the subsidiarity principle. For the record we note that

 * Trade mark counterfeiting and copyright piracy are already forbidden in the EU, the TRIPS -treaty sees to that.

 * In 2004 the Council and European Parliament adopted the Intellectual Property Rights Enforcement Directive (IPRED), with civil measures. It is being implemented at the moment. Effects are not clear yet, it is unknown whether further measures are needed.

 * The directive can go only as far as needed for reaching the goal of the EC treaty.

 * There is no indication that criminals would choose the jurisdiction with the lowest penalties to operate from. Indeed, it is known that the chance to be caught plays a much bigger role, but the Union has no say over the prosecution priorities.

See also the section Elements of a crime, here below.
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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.


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:

1 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.)

2 Commercial activity with an intention to earn a profit

3 Potential to cause considerable damage

4 Intent or contingent intent (dolus eventualis)"


Note these are the minimal elements. It would be better to define them more sharply. 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".





== Not all commercial violations are piracy ==

Not all intentional commercial violations of “intellectual property rights" are piracy. Trademark and patent infringements are always commercial infringements (if not deemed commercial they are not infringements), but by no means always piracy. The principal issue with the directive is that it is confusing piracy and commercial infringement. the directive criminalises companies that are not pirates.

== All commercial activities are intentional ==

“Member States shall ensure that all intentional infringements...” All commercial activities are intentional in the normal sense of criminal law in many countries. The question may arise whether indeed in the case of patent law “intent” must be interpreted more restrictively, requiring what is called in Dutch “boos opzet”. But the IPRED text only says “intentional”, not “criminal intention”.

But even if prior knowledge is needed that, for instance, a patent is violated, it will not help. In the software field, it is impossible not to violate patents. And patents are often invalid, but you will only find out in court. A letter with: “You are violating our patent, stop with it otherwise we will call the police.” is a big threat, even if it is clear the patent is trivial and will never survive in court.
See [http://www.ipred.org/art3 http://www.ipred.org/art3]


== Carte blanche: open ended Scope ==

[http://www.ipred.org/art1 See page on art 1]


== A complete rewrite ==

A complete rewrite could be contemplated. This approach would not solve the competence questions. In our opinion, Council and member states have to take this directive to the European Court of Justice if not rejected, in order to clarify competence - even a rewritten directive.

The Community can only make codecision directives with criminal measures if both the objective of the Community and the measures are essential. If the subsidiarity requirements are not met, the measures are not essential. The subsidiarity requirements are a conditio sine qua non.

To meet the subsidiarity requirements, the scope has to be limited to copyright piracy and trade mark counterfeiting. Only sanctions against obvious cases of pirating can be harmonised. The definitions have to be as narrow as possible (See Elements of a crime and Criminal intention). The directive needs measures against abuse and legal threats. The directive should not threaten the neutrality of police investigation.

Such a directive would not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, the directive is not essential, the Community lacks competence.
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Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. TRIPS compliance can be forced by WTO. Trade mark counterfeiting and copyright piracy are the two main problems. 

“Art. 61: Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and 
Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. TRIPS compliance can be forced by WTO. Trade mark counterfeiting and copyright piracy are the two main problems.

“Art. 61: Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and
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== Commercial scale ==

The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not. 

We even see a call to remove "commercial scale" from the directive. This would for instance make file sharing by adolescents a crime, or organised crime, with very severe sanctions.

The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. More importantly, removing or undermining "commercial scale" will have enormous consequenses.

== Do we want not for profit file sharing to be organised crime? ==

As seen above, not for profit file sharing may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive. 

Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material. 





== Intentional commercial scale violations ==

||Article 3 Offences Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.||


=== All commercial activities are intentional ===

All commercial activities are intentional in the normal sense of criminal law in many countries. The question may arise whether indeed in the case of patent law “intent” must be interpreted more restrictively, requiring what is called in Dutch “boos opzet”. But the IPRED text only says “intentional”, not “criminal intention”.

But even if prior knowledge is needed that, for instance, a patent is violated, it will not help. In the software field, it is impossible not to violate patents. And patents are often invalid, but you will only find out in court. A letter with: "You are violating our patent, stop with it otherwise we will call the police." is a big threat, even if it is clear the patent is trivial and will never survive in court.



=== Not all commercial scale violations scale are piracy ===

Not all intentional commercial scale violations of “intellectual property rights" are piracy. Trademark and patent infringements are always commercial infringements (if not deemed commercial they are not infringements), but by no means always piracy. The principal issue with the directive is that it is confusing piracy and commercial infringement. The directive criminalises companies that are not pirates.

===
Commercial scale not clear enough ===

The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not.

We even see a call to remove "commercial scale" from the directive. The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. More importantly, removing or undermining "commercial scale" will have enormous consequenses. As we saw in the subsidiarity section, definitions have to be more narrow.

=== Do we want not-for-profit file sharing to be organised crime? ===

As seen above, not for profit activitiies may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive.

Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material.
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Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying.  Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying.
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In our opinion we are witnessing an overreaction that will cause more damage than good. In our opinion we are witnessing an overreaction that will cause more damage than good.


== Legal threats and abuse ==

Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them demanded removal when the target had a clear legal defense.

Take down notices often result in online materials being pulled from the Internet, generally without notice to the target.

http://lawweb.usc.edu/news/releases/2005/legalFlaws.html



A criminal procedure may help to obtain information from the alleged infringer which is not as easily available in a civil procedure. An acknowledged problem in "intellectual property" is the conduct of mala fide (would-be) rights owners to obtain information from competitors under the pretext of false infringement claims. Civil procedural law contains some safeguards against such behaviour - that may not be matched by a corresponding level of "subtlety" in criminal law. Prosecuting authorities (police etc.) have a reputation of regularly breaking the law in their eagerness to prove crimes (we had some dreadful examples of such behaviour recently in NL). The courts eventually are supposed to correct such mistakes (e.g. by reducing sanctions or even by deciding not to be admissable at all) - but a broken secret can hardly be compensated for.



== Privatise the police ==

Right-holders may assist the police with the investigation, help to draw conclusions (see also the explanatory memorandum, art 7). This threatens the neutrality of police investigation.


== Distortion of carefully balanced procedural law systems ==

In the Netherlands in trade name cases, on first offence the civil servant can propose measures to take to stop the offence. Then there will be no punishment. Violating a trade name is a minor offence in the Netherlands, the fine is 2250 euro. On second offence the fine is the same or two weeks of prison.

With the directive violating trade names is a criminal offence, the sanctions for a first offence are 100.000 or 300.000 euro, depending on the circumstances, or 4 years of prison.

The prison sentence is more than 100 times as severe for a first offense as it is now in the Netherlands for a second offence. In the Netherlands, there have not been cases for the last 50 years. Clearly, there is a total lack of necessity. And the sanctions are disproportionate to the offense, which is a violation of article 49(3) of the Charter of Fundamental Rights.

National laws make distinctions between minor and criminal offences, between lower and higher sanctions. They may offer other solutions than sanctions. All these subtleties are destroyed with the directive's all-is-a-crime approach. The question may be asked whether this approach is legal nihilism. Carefully balanced national procedural law systems are distorted.

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 - constructive: geared to compensation

 - not all infringements are piracy

 - parties are in control

 - mainly paid by parties
 * constructive: geared to compensation

 * not all infringements are piracy

 * parties are in control

 * mainly paid by parties
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 - destructive: geared to punishment

 - human rights require very precise definitions

 - public prosecutor lacks specialist knowledge 

 - mainly paid by taxpayer

* destructive: geared to punishment

 * human rights require very precise definitions

 * public prosecutor lacks specialist knowledge

 * mainly paid by taxpayer
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In many cases, minor offences become criminal offences. Fines go up. Maximum custodial sentences go up, in the case of Dutch trade name violations more than a 100 times. Violations that do not have criminal sanctions now are criminalised. For instance patents have criminal sanctions in only 10 EU countries, while in the Netherlands the government proposed to remove the criminal sanctions. the directive also covers attempting, aiding or abetting and inciting such offences, it is not clear in which countries this is already the case. 

Extra measures are the seizure of goods belonging to the offender, including the infringing goods and the materials, implements or media used predominantly for the manufacture or distribution of the goods in question. Other penalties are provided for specific cases: destruction of infringing the seizure of goods belonging to the offender, including the infringing goods and the materials, implements or media used predominantly for the manufacture or distribution of the goods in question. These extra measures and penalties may or may not exist in member states. 
The directive is not just a harmonisation.

In many cases, minor offences become criminal offences. Fines go up. Maximum custodial sentences go up, in the case of Dutch trade name violations more than a 100 times. Violations that do not have criminal sanctions now are criminalised. For instance patents have criminal sanctions in only 10 EU countries, while in the Netherlands the government proposed to remove the criminal sanctions. the directive also covers attempting, aiding or abetting and inciting such offences, it is not clear in which countries this is already the case.

Extra measures are the seizure of goods belonging to the offender, including the infringing goods and the materials, implements or media used predominantly for the manufacture or distribution of the goods in question. Other penalties are provided for specific cases: destruction of infringing the seizure of goods belonging to the offender, including the infringing goods and the materials, implements or media used predominantly for the manufacture or distribution of the goods in question. These extra measures and penalties may or may not exist in member states.
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== Violation of subsidiarity principle ==

The Commission made no assessment of the current situation. Are there any real problems today due to unintended legal limitations? How would the directive work out in various criminal law systems?

In 2004 the Council and European Parliament adopted the Intellectual Property Rights Enforcement Directive (IPRED). It is being implemented at the moment. Effects are not clear yet, it is unknown whether further measures are needed. Why would we rush this directive?

The European Constitution disaster shows that European citizens get more critical. This directive is a fine example of symbolic and useless EU legislation. Don't accept this directive and show that “Brussels” respects subsidiarity and knows when to say NO to nonsense!



== Patents unfit for criminal sanctions ==

Criminal provisions are hardly ever used, even by SMEs. Commercial parties prefer settlement, not punishment.

The “As such” exclusions (software as such, business methods as such, etc) are unclear and drifting. We have a major quality problem at hand. It is impossible to know all patents, you cannot even get a guaranteed search. Patents are often hard to read, and the scope is broad.

Especially in the software field, problems are huge. There are countless software developers around the world, who often keep their source code secret. There is no prior art database, it is not known what has already been done. It is not known what is new, and if you do not know what is new, it is impossible to know what is inventive.

More than 30.000 software patents have been granted, it is impossible to know them all. It is impossible to write software without violating patents. “Independent (re)discovery” occurs daily. A whole industry will be criminalised. With the directive, just doing your job may get you 4 years in prison. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? He can go to jail, together with Europe's software developers, since the directive criminalises companies that are not pirates. A lot of software patents are dubious and could be used for frightening weaker competitors with the thread of IPRED2.

Patents can be invalidated in court. In civil court cases, there is almost always a counterclaim for invalidity. It may take weeks to establish whether the patent should have been granted or not. Counterclaims are often granted. Patents are fundamentally unstable. Fact X can be a crime or not a crime. There is no legitimacy at all. No protection against arbitrary power. Legal minefield, with criminal sanctions added!

There are more sectors with much incremental development which may face the same problems.

Criminal sanctions and community patent do not go together. People are entitled to read the rules they can violate in their own language.

Patents are totally unfit for criminal sanctions!



== Copyright not straightforward ==

Copyright may look straightforward. Yet in copyright, parodies, independent recreations and citations are free. Parody, independent recreation and citation are defined well enough for civil law, not for criminal law. The definition of "work" is not straighforward either.

Authors may actually benefit from “unauthorised” copying.

Freedom of speech may suffer. With the directive, a journalist could be prosecuted that uses a citation that is too long, not considered a citation any more. People revealing documents could be prosecuted for violation of copyright. Artists may be prosecuted if their work is not considered a parody. Software developers and others could be prosecuted if their work is not considered an independent recreation.

Criminal laws should be limited to what is clearly wrong.


== Trade marks cases complicated and subtle ==

In trade marks, currently typically only counterfeiting is a crime, e.g. art. 337 Dutch Criminal Code. Trademark infringement in general is very complicated and subtle (“confusion” criterion after Puma/Sabel). the directive creates a risk of reverse hijacking, prosecuting legitimate owners under false pretexts, for instance with domain names in particular.

Trade marks have to be defended rigorously, otherwise they are lost. Trade marks are unstable. Except for counterfeiting, trade marks are not suited for criminal sanctions.

== Distortion of carefully balanced procedural law systems ==

In the Netherlands in trade name cases, on first offence the civil servant can propose measures to take to stop the offence. Then there will be no punishment. Violating a trade name is a minor offence in the Netherlands, the fine is 2250 euro. On second offence the fine is the same or two weeks of prison.

With the directive violating trade names is a criminal offence, the sanctions for a first offence are 100.000 or 300.000 euro, depending on the circumstances, or 4 years of prison.

The prison sentence is more than 100 times as severe for a first offense as it is now in the Netherlands for a second offence. In the Netherlands, there have not been cases for the last 50 years. Clearly, there is a total lack of necessity. And the sanctions are disproportionate to the offense, which is a violation of article 49(3) of the Charter of Fundamental Rights.

National laws make distinctions between minor and criminal offences, between lower and higher sanctions. They may offer other solutions than sanctions. All these subtleties are destroyed with the directive's all-is-a-crime approach. The question may be asked whether this approach is legal nihilism. Carefully balanced national procedural law systems are distorted.



== 11 “Intellectual property” rights ==

We took a look at four “intellectual property” rights. the directive covers 11 “intellectual property” rights. We have trade mark counterfeiting and copyright piracy. The other 9 “intellectual property” rights shouldn't be in the directive.
 
This is the list of the IP-rights concerned: copyright, rights related to copyright, sui generis right of a database maker, rights of the creator of the topographies of a semiconductor product, trademark rights, design rights patent rights, including rights derived from supplementary protection certificates, geographical indications, utility model rights, plant variety rights, trade names, in so far as these are protected as exclusive property rights in the national law concerned.

These IP-rights are very different from each other. Possible issues with them have not been investigated by the Commission. The justification is just one A4 page long, 463 words.

== Legal threats ==

Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them demanded removal when the target had a clear legal defense.

Take down notices often result in online materials being pulled from the Internet, generally without notice to the target.

http://lawweb.usc.edu/news/releases/2005/legalFlaws.html



== Privatise the police ==

Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). This threatens the neutrality of police investigation.


== Abuse ==

A criminal procedure may help to obtain information from the alleged infringer which is not as easily available in a civil procedure. An acknowledged problem in "intellectual property" is the conduct of mala fide (would-be) rights owners to obtain information from competitors under the pretext of false infringement claims. Civil procedural law contains some safeguards against such behaviour - that may not be matched by a corresponding level of "subtlety" in criminal law. Prosecuting authorities (police etc.) have a reputation of regularly breaking the law in their eagerness to prove crimes (we had some dreadful examples of such behaviour recently in NL). The courts eventually are supposed to correct such mistakes (e.g. by reducing sanctions or even by deciding not to be admissable at all) - but a broken secret can hardly be compensated for.



















======







[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)

Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.]


[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]

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[http://www.ipred.org/ipred1 IPRED 1] (2004)

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[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]

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== Introduction: the directive adds criminal sanctions to a legal minefield ==


In order to fight piracy, the directive makes all commercial violations of “intellectual property rights" a crime. All commercial violations. 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. This criminalisation of acts by commercial organisations that are not pirates is very serious. The principal issue is that the directive confuses piracy and commercial infringement. the directive criminalises companies that are not pirates.

• Take copyright. The question whether a work is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium. Severe sanctions on copyright violations may endanger freedom of speech.

• Take Patent law. Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? He can go to jail, together with Europe's software developers, since the directive criminalises companies that are not pirates.

Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. Furthermore, IPRED 1 is being implemented right now. At the moment no assessment can be made whether an instrument is missing. Yet prison sentences go up more than a 100 times in some cases. the directive is excessive and distorts carefully balanced national procedural law systems.

Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. In our opinion we are witnessing an overreaction that will cause more damage than good.





= the directive =
= Intellectual Property Rights Enforcement Directive 2 =

'''Makes violations of "intellectual property rights", such as patents, a crime. Makes adolescents that share files organised criminals.'''

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. These criminal penalties came back in 2005 in 2 new European Commission proposals. Following a European Court decision in an other case, they were retracted, [http://wiki.ffii.org/Com051123En for formal reasons.] 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 a new directive.]

Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.]

[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/ More]


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

Analysis

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)


Content

  • Introduction
  • Conclusion
  • Legitimacy
  • Competence
  • Subsidiarity
  • [http://www.ipred.org/art3 Elements of a crime]

  • Criminal intention
  • [http:art1 Carte blanche: open ended Scope]

  • A complete rewrite
  • Counterfeiting and piracy are already forbidden
  • Intentional commercial scale violations
    • All commercial activities are intentional
    • Not all commercial scale violations scale are piracy
    • Commercial scale not clear enough
    • Do we want not-for-profit file sharing to be organised crime?
  • Legal threats and abuse
  • Privatise the police
  • Distortion of carefully balanced procedural law systems
  • Criminal law should be the ultimum remedium
  • No harmonisation
  • A closer look at some of the rights
    • Patents unfit for criminal sanctions
    • Utility models
    • Design rights
    • Copyright not straightforward
    • Trade marks cases complicated and subtle
    • Trade names


Introduction

European Commission criminalises the industry. Decent people can be treated as organised criminals.

See [http://www.ipred.org frontpage]

Conclusion

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. To meet the subsidiarity requirements, the scope has to be limited to copyright piracy and trade mark counterfeiting. Only sanctions against obvious cases of pirating can be harmonised. The definitions have to be as narrow as possible (See Elements of a crime and Criminal intention). The directive needs measures against abuse and legal threats. The directive should not threaten the neutrality of police investigation. Such a directive would not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, the directive is not essential, the Community lacks competence.


Legitimacy

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? In our opinion, only countries have enough legitimacy to make criminal laws.

Competence

A recent European Court of Justice judgment [http://www.law.kuleuven.be/strafrecht/EnvironmentCrimeCase.PDF (C-176/03)] opens the possibility for the European Commission and Parliament to make directives containing criminal measures together, without the member states having a veto.

The Commission can only make directives with criminal measures together with the European Parliament if both the objective of the Community and the measures are essential. (See also [http://www.ipred.org/backdoor Backdoor])

The [http://wiki.ffii.org/IpredNlParl060629En Dutch Parliament concluded unanimously] that no competence has been granted to the Community for criminal measures against "IP-rights" infringements. The Dutch Parliament sent a letter to commission Frattini about this. [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw English] version, [http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fy66g2qw French] version [http://tinyurl.com/gno6m tiny url EN]

Donner, minister of Justice for the Netherlands, [http://wiki.ffii.org/IpredDonner060428En pointed out] that harmonisation of penalties should only be done if there is a real EU interest.

The issue was also raised during a [http://register.consilium.europa.eu/pdf/en/06/st08/st08319.en06.pdf Council Working Party meeting]: "An opinion by the Council Legal Service on the impact of the Ruling of the European Court of Justice in the case 176/03, on the proposed instrument and in particular its scope, were welcome."

Jan 31st 2006 the European Parliament's JURI committee held a [http://wiki.ffii.org/JuriHearing060131En public hearing] on "The Effective Protection of Intellectual Property: a Challenge for Europe"

Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law said:

"Issuing a directive on the basis of Art. 95 EC presupposes that it is essential for the realisation of the single market (Art. 14 EC), i.e. that without harmonisation a distortion in trade between Member States would occur. (...)

  • Whether pirated goods are available within individual Member States is irrelevant from the point of view of European law. Relevant are only barriers to entry to national markets, for example, in the form of border controls, and direct or indirect discrimination. Mere obstacles to trade are insufficient for the adoption of a Community measure according to Art. 95 EC after the ECJ abandoned its jurisprudence to the opposite effect with the Keck decision of 1993.
  • Article 61 TRIPS already contains relatively wide-reaching provisions against trademark and copyright pirating which are binding on the Member States and the EU. It is doubtful whether additional wider-reaching harmonisation would be permissible.
  • In many countries (e.g. Germany), the IP criminal law – although well-developed – only plays a subordinate role in actual practice; criminal judgments in patent law are seldom; they have only marginal significance in copyright and trademark law.
  • The indispensability to harmonisation of, for example, environmental criminal law does not permit automatic conclusions with regard to other areas of law; what needs to be examined in each individual case is whether a lack of harmonisation results in a distortion of competition." (end of quote)

The Commission does not even try to motivate that there is a distortion of trade.

See also: Hilty, Kur, Peukert: [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 Stellungnahme des Max-Planck-Instituts] für Geistiges Eigentum, Wettbewerbs- und Steuerrecht zum Vorschlag für eine Richtlinie des Europäischen Parlaments und des Rates über strafrechtliche Maßnahmen zur Durchsetzung der Rechte des geistigen Eigentums, KOM(2006) 168 endgültig; GRUR Int, 55. Jahrgang, 01.09.2006

Upcoming ECJ judgment: [http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&newform=newform&Submit=Submit&alljur=alljur&jurcdj=jurcdj&jurtpi=jurtpi&jurtfp=jurtfp&alldocrec=alldocrec&docj=docj&docor=docor&docop=docop&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoj=docnoj&docnoor=docnoor&typeord=ALLTYP&allcommjo=allcommjo&affint=affint&affclose=affclose&numaff=C-+440%2F05&ddatefs=&mdatefs=&ydatefs=&ddatefe=&mdatefe=&ydatefe=&nomusuel=&domaine=&mots=&resmax=100 C-440/05]

Subsidiarity

Since the Community does not have competence to make this directive, it is unnecessary to look at the subsidiarity principle. For the record we note that

  • Trade mark counterfeiting and copyright piracy are already forbidden in the EU, the TRIPS -treaty sees to that.
  • In 2004 the Council and European Parliament adopted the Intellectual Property Rights Enforcement Directive (IPRED), with civil measures. It is being implemented at the moment. Effects are not clear yet, it is unknown whether further measures are needed.
  • The directive can go only as far as needed for reaching the goal of the EC treaty.
  • There is no indication that criminals would choose the jurisdiction with the lowest penalties to operate from. Indeed, it is known that the chance to be caught plays a much bigger role, but the Union has no say over the prosecution priorities.

See also the section Elements of a crime, here below.

Elements of a crime

See [http://www.ipred.org/art3 http://www.ipred.org/art3]

Carte blanche: open ended Scope

[http://www.ipred.org/art1 See page on art 1]

A complete rewrite

A complete rewrite could be contemplated. This approach would not solve the competence questions. In our opinion, Council and member states have to take this directive to the European Court of Justice if not rejected, in order to clarify competence - even a rewritten directive.

The Community can only make codecision directives with criminal measures if both the objective of the Community and the measures are essential. If the subsidiarity requirements are not met, the measures are not essential. The subsidiarity requirements are a conditio sine qua non.

To meet the subsidiarity requirements, the scope has to be limited to copyright piracy and trade mark counterfeiting. Only sanctions against obvious cases of pirating can be harmonised. The definitions have to be as narrow as possible (See Elements of a crime and Criminal intention). The directive needs measures against abuse and legal threats. The directive should not threaten the neutrality of police investigation.

Such a directive would not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, the directive is not essential, the Community lacks competence.

Counterfeiting and piracy are already forbidden

Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. TRIPS compliance can be forced by WTO. Trade mark counterfeiting and copyright piracy are the two main problems.

“Art. 61: Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.”

Intentional commercial scale violations

Article 3 Offences Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.

All commercial activities are intentional

All commercial activities are intentional in the normal sense of criminal law in many countries. The question may arise whether indeed in the case of patent law “intent” must be interpreted more restrictively, requiring what is called in Dutch “boos opzet”. But the IPRED text only says “intentional”, not “criminal intention”.

But even if prior knowledge is needed that, for instance, a patent is violated, it will not help. In the software field, it is impossible not to violate patents. And patents are often invalid, but you will only find out in court. A letter with: "You are violating our patent, stop with it otherwise we will call the police." is a big threat, even if it is clear the patent is trivial and will never survive in court.

Not all commercial scale violations scale are piracy

Not all intentional commercial scale violations of “intellectual property rights" are piracy. Trademark and patent infringements are always commercial infringements (if not deemed commercial they are not infringements), but by no means always piracy. The principal issue with the directive is that it is confusing piracy and commercial infringement. The directive criminalises companies that are not pirates.

Commercial scale not clear enough

The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not.

We even see a call to remove "commercial scale" from the directive. The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. More importantly, removing or undermining "commercial scale" will have enormous consequenses. As we saw in the subsidiarity section, definitions have to be more narrow.

Do we want not-for-profit file sharing to be organised crime?

As seen above, not for profit activitiies may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive.

Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material.

We are about to lower our standard of what is crime and organised crime. We are about to make many in our societies criminals and criminalise many commercial organisations that are not pirates. We may cross the line. If our youngsters are criminals already, what would they care about other crimes? If companies are criminalised, shouldn't they go underground or leave Europe?

Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies are an indication that there are more possible ways to follow. And first it should be clear too in how far file sharing actually stimulates buying.

The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. The reaction is panic-stricken, not wise.

In our opinion we are witnessing an overreaction that will cause more damage than good.

Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them demanded removal when the target had a clear legal defense.

Take down notices often result in online materials being pulled from the Internet, generally without notice to the target.

http://lawweb.usc.edu/news/releases/2005/legalFlaws.html

A criminal procedure may help to obtain information from the alleged infringer which is not as easily available in a civil procedure. An acknowledged problem in "intellectual property" is the conduct of mala fide (would-be) rights owners to obtain information from competitors under the pretext of false infringement claims. Civil procedural law contains some safeguards against such behaviour - that may not be matched by a corresponding level of "subtlety" in criminal law. Prosecuting authorities (police etc.) have a reputation of regularly breaking the law in their eagerness to prove crimes (we had some dreadful examples of such behaviour recently in NL). The courts eventually are supposed to correct such mistakes (e.g. by reducing sanctions or even by deciding not to be admissable at all) - but a broken secret can hardly be compensated for.

Privatise the police

Right-holders may assist the police with the investigation, help to draw conclusions (see also the explanatory memorandum, art 7). This threatens the neutrality of police investigation.

Distortion of carefully balanced procedural law systems

In the Netherlands in trade name cases, on first offence the civil servant can propose measures to take to stop the offence. Then there will be no punishment. Violating a trade name is a minor offence in the Netherlands, the fine is 2250 euro. On second offence the fine is the same or two weeks of prison.

With the directive violating trade names is a criminal offence, the sanctions for a first offence are 100.000 or 300.000 euro, depending on the circumstances, or 4 years of prison.

The prison sentence is more than 100 times as severe for a first offense as it is now in the Netherlands for a second offence. In the Netherlands, there have not been cases for the last 50 years. Clearly, there is a total lack of necessity. And the sanctions are disproportionate to the offense, which is a violation of article 49(3) of the Charter of Fundamental Rights.

National laws make distinctions between minor and criminal offences, between lower and higher sanctions. They may offer other solutions than sanctions. All these subtleties are destroyed with the directive's all-is-a-crime approach. The question may be asked whether this approach is legal nihilism. Carefully balanced national procedural law systems are distorted.

Criminal law should be the ultimum remedium

Private law:

  • constructive: geared to compensation
  • not all infringements are piracy
  • parties are in control
  • mainly paid by parties

Criminal law:

  • destructive: geared to punishment
  • human rights require very precise definitions
  • public prosecutor lacks specialist knowledge
  • mainly paid by taxpayer

Questions like whether something is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium.

Unlike in criminal law, the usual point of tort law is to get disagreeing parties to come to some sort of an agreement and then settle out of court. And this is a very good thing, because the courts are all very busy as it is.

But nobody will settle for their own imprisonment. Or being branded a criminal. What is worse, the side that is winning may not want to quit with a big pile of cash, but instead insist that proceedings continue “because I want to see that bastard in jail”.

We can say: "Fact X is a crime". This rule has to be written down in a law in advance. Before the act. Criminal laws are strict. They have to be, it is a protection against arbitrary power. People are entitled to know what is a crime in advance.

Civil law is less strict. In a copyright case a Dutch court decided a smell can be “a work” in the sense of the copyright law. The scope of the copyright law became broader. In criminal law this would be a violation of the legitimacy principle. People could not know it is a crime to violate a smell.

If you add or increase sanctions to a law that is enforced in a civil way, definitions have to be interpreted in a more strict way. The scope of the law will become more narrow.

No harmonisation

The directive is not just a harmonisation.

In many cases, minor offences become criminal offences. Fines go up. Maximum custodial sentences go up, in the case of Dutch trade name violations more than a 100 times. Violations that do not have criminal sanctions now are criminalised. For instance patents have criminal sanctions in only 10 EU countries, while in the Netherlands the government proposed to remove the criminal sanctions. the directive also covers attempting, aiding or abetting and inciting such offences, it is not clear in which countries this is already the case.

Extra measures are the seizure of goods belonging to the offender, including the infringing goods and the materials, implements or media used predominantly for the manufacture or distribution of the goods in question. Other penalties are provided for specific cases: destruction of infringing the seizure of goods belonging to the offender, including the infringing goods and the materials, implements or media used predominantly for the manufacture or distribution of the goods in question. These extra measures and penalties may or may not exist in member states.

There is no overview of all the changes, but they are many.

analysis (last edited 2009-05-30 23:30:40 by localhost)