Factsheet

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

• the directive does not make any distinction between piracy and ambiguous infringements of "intellectual property" rights
• decent people can be treated as organised criminals
• the legal means to combat piracy and counterfeiting are already available
• beyond clear cases of piracy and counterfeiting civil sanctions are sufficient
• contestable and weak rights gain great threath potential, the desired freedom to act in the market is inhibited
• the directive harmonises the enforcement of substantive law that is not harmonised
• the directive adopts a general concept of "intellectual property", it breaks the age-old "numerus clausus" (closed system) principle of "intellectual property", and "absolute rights" ("iura in rem") in general: until now, the principle is freedom of information (and imitation) unless there is an explicit statute preventing that
• criminal law must be precise and may not contain open concepts, the legality principle ("lex certa" and "lex scripta") is violated
• carefully balanced national procedural law systems are distorted
• right-holders may assist the police with the investigation, help to draw conclusions, this threatens the neutrality of police investigation
• criminal investigation authorities should not be able to act on their own initiative without a prior complaint of the rights owner, licensing arrangements are not published, the rights owner has the fundamental right to dispose of his rights as he desires
• the directive can be abused
• the proposal is not essential, the Community lacks competence