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Fight IPRED 2 effectively How To

The second IPR Enforcement Directive

Why you should fight IPRED 2

With this directive decent people can be treated as organised criminals.

See the [http://www.ipred.org/MainPage#preview introduction] and the links there.

Fight the directive

To do

The directive has to be rejected. See also our [http://analysis analysis]

Spread the word

Spread the word:

• decent people can be treated as organised criminals
• the directive does not make any distinction between piracy and ambiguous infringements of "intellectual property" rights
• contestable and weak rights gain great threat potential
• desired freedom to act in the market is inhibited
• it is superfluous, to combat piracy the legal means are already installed
• the proposal has an open end: all existing and future "IP-rights" are covered, it is a carte blanche

For more, follow the links above.

Pawn in a power struggle

To effectively fight the directive, it is important to understand it is a pawn in a power struggle. It is the first time the European Community makes a directive containing criminal measures without the member states having a veto. A recent European Court of Justice judgment (C-176/03) opened this possibility. In this case 11 of the then 15 member states supported the Council point of view that the Community can not make criminal measures directives without the member states having a veto. They lost. Needless to say, the Commission and European Parliament like this, the Council and member states don't.

National parliaments

The first time the Commission uses its competence, it does so in a bold way. The Dutch Parliament unanimously concluded the [http://wiki.ffii.org/IpredNlParl060629En Commission exceeds it competence] with this directive. The Parliament sent a letter to commissionar Frattini, and informed all national parliaments in the Union to rally support for its position. [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

In our opinion, the competence question has to be explored fully. If not rejected, member states should take this directive to the European Court of Justice.

If you are living in the EU, inform the members of your parliament about this. Ask for their position. (See also [http://www.ipred.org/backdoor Backdoor])

Departments of Foreign Affairs

You can ask you minister of Foreign Affairs on his or her position. See below for a letter you may like to send.

European Parliament

Some members of the European Parliament may like to finally make a directive containing criminal measures. They should realise this directive does not make nice history. The European Parliament should reject the directive.

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.

During the European Parliament hearing in January 2006 Professor of Law Reto M. Hilty, Managing Director, Max Planck Institute for IP, made clear the subsidiarity requirements. The EP can be told that if they do not follow Hilty, the chance of the directive being killed by the European Court of Justice becomes bigger. See also our [http://analysis analysis], "Complete rewrite". While this approach would take away the gross aspects of the directive, it would not solve the competence question.

[http://www.europarl.europa.eu/members/expert.do?language=en&redirection European Parliament contact information]

A possible letter to the minister of Foreign Affairs

[opening]

In case C-176/03, the ECJ decided the Community, under strict conditions, has the competence to make codecision directives containing criminal measures (without the member states having a veto). The first codecision directive containing criminal measures is 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', 2005/0127 (COD). [1]

We are deeply concerned over this directive:

• decent people can be treated as organised criminals
• the directive does not make any distinction between piracy and ambiguous infringements of "intellectual property" rights
• contestable and weak rights gain great threat potential
• desired freedom to act in the market is inhibited
• it is superfluous, to combat piracy the legal means are already installed
• the proposal has an open end: all existing and future "IP-rights" are covered, it is a carte blanche [2]

This directive has also raised concerns over whether the Commission exceeds its competence. Professor in Law Reto M. Hilty (Max Planck Institute for IP) did this during a hearing in the EP. The Dutch Parliament unanimously concluded the Commission exceeds its competence. [3] The issue was also raised during a Council Working Party discussion. [4]

In case C-176/03 our country supported the Council against the Commission. Now the Commission made its first proposal for a codecision directive containing criminal measures, we assume our country follows this case closely to see whether the Commission exceeds its competence.

We would kindly like to ask you your opinion on the criminal measures IPR enforcement directive, 2005/0127 (COD). Would you agree the competence question has to be explored fully, that the Council and member states should take this directive to the European Court of Justice if not rejected?

Furthermore we would like to draw your attention to a backdoor. According to the European Commission some adopted framework decisions have the wrong legal basis. [5] The Commission proposes to regularise these. If frameworks are "regularised" while in fact the measures taken are not essential for the Community, through precedents the Community competence is enlarged. Every proposal for regularisation has to be scrutinised.

[closing]

[1] http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf

[2] http://www.ipred.org/analysis

[3] http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw

[4] http://register.consilium.europa.eu/pdf/en/06/st08/st08319.en06.pdf

[5] http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0583en01.pdf

Note

The third paragraph revers to case C-176/03. It is only true if your country is one the 11 member states listed here below. If not "We assume our country follows this case closely to see whether the Commission exceeds its competence." is enough.

Hilty is mentioned since he actually knows what he is talking about.

The 11 member states supporting the Council in case C-176/03:

Kingdom of Denmark, represented by J. Molde, acting as Agent,

Federal Republic of Germany, represented by W.‑D. Plessing and A. Dittrich, acting as Agents,

Hellenic Republic, represented by E.‑M. Mamouna and M. Tassopoulou, acting as Agents, with an address for service in Luxembourg,

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

French Republic, represented by G. de Bergues, F. Alabrune and E. Puisais, acting as Agents,

Ireland, represented by D. O’Hagan, acting as Agent, and P. Gallagher, E. Fitzsimons SC and E. Regan BL, with an address for service in Luxembourg,

Kingdom of the Netherlands, represented by H.G. Sevenster and C. Wissels, acting as Agents,

Portuguese Republic, represented by L. Fernandes and A. Fraga Pires, acting as Agents,

Republic of Finland, represented by A. Guimaraes-Purokoski, acting as Agent, with an address for service in Luxembourg,

Kingdom of Sweden, represented by A. Kruse, K. Wistrand and A. Falk, acting as Agents,

United Kingdom of Great Britain and Northern Ireland, represented by C. Jackson, acting as Agent, and R. Plender QC,

Let's roll!