The Prosecution Paradise Directive

Our email to the members of the Legal Affairs Committee

All over Europe piracy and counterfeiting of copyright and trademark rights are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The European Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, the proposal criminalises IPR disputes that are essentially of a civil nature and occur between legitimate commercial enterprises. 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 Members of the European Parliament 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.

A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.

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. Litigation companies (trolls) will be able to put maximum pressure on companies that create products and extort disproportional license fees. The current proposals create huge privacy risks when "IP owners" can direct investigation into anyone they accuse of "piracy".

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, kids included. It's jeopardizing Europe's future.

We assume nobody deliberately wants to create a Prosecution Paradise.

Measures to take

1 Amendments making the directive broader in scope have to be rejected.

2 The crime has to be defined as proposed by the Max Planck Institute.

3 Weak rights have to be taken out of the scope. In fact, only the rights known to be pirated can stay in: copyright and trademark right.

4 Art 7, which allows the rights holders to assist the police, has to be deleted.

5 The criminal measures to combat piracy and counterfeiting are already available. At best, a directive will only have symbolic meaning. A far more realistic approach was suggested by the Dutch Parliament. Its letter should be reconsidered. There should be no hesitation to reject the directive.

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