We kindly thank you for the invitation to send in notes. We would like to draw your attention to the following:

* IPRED 2 confuses "piracy" and commercial infringement. IPRED 2 criminalises companies that are not pirates.

* Patents, especially software patents, are unfit for criminal sanctions. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? Europe┬┤s software developers are to be kept out of prison.

* Depending on the outcome of the lawmaking process and interpretation by courts, not for profit activities will be a crime, or organised crime or not.

* There even was a call to remove "commercial scale" from the directive, which was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final word. More importantly, removing or undermining "commercial scale" will have enormous consequenses, not for profit activities by individuals will be criminalised. We could see adolescents' not for profit 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. "Commercial scale" is not clear enough.

* Not for profit internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. Levies on writeable CDs, DVDs, etc 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. 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? Criminal law should be the ultimum remedium.

* Severe sanctions on copyright violations may endanger freedom of speech.

* Severe sanctions pose a threat, and will provoke false threats. A US study revealed that a third of take down notices 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.

* Right-holders may assist the police with the investigation, help to draw conclusions. This threatens the neutrality of police investigation.

* 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 only in 10 EU countries, while in the Netherlands the government proposed to remove the criminal sanctions.

* IP rights do not have clear delimitations. It is even often unclear whether an IP right is valid. Enforcement of IP rights calls for a very balanced approach.

* 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. Carefully balanced national procedural law systems are distorted. A violation of subsidiarity principle.

* "Trade mark counterfeiting" and "copyright piracy" are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. The main problems are countered. IPRED 1 is being implemented at the moment. Effects are not clear yet, it is unknown whether further measures are needed. Why would we rush IPRED2?

We conclude that the directive and framework are untimely, distortive and do not offer a proper solution for new issues. They should be rejected.

You will find more information about this here [url] (pdf with www.ipred.org/en content)

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