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| On July 6th the European Parliament rejected the software patents directive. Europe can only thank the Parliament for this. The IPRED 2 directive is even more absurd. It should be rejected in first reading. We wish the Parliament the wisdom it had on July 6th 2005. | We kindly thank you for the invitation to send in notes. We would like to draw your attention to the following: |
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| * IPRED 2 confuses "piracy" and commercial infringement. IPRED 2 criminalises companies that are not pirates. | |
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| TRIPS: “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.” | * 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. |
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| TRIPS already obliges members to provide criminal procedures (in cases of wilful trademark counterfeiting or copyright piracy). These obligations are seen as severe. There is no need for a directive. | * 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. |
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| We also have the Intellectual Property Rights Enforcement Directive 2004. Not enough? We can not know, it is being implemented now. | * 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. |
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| Here we have a list of the IP rights concerned. There are many of them, all of them with their own characteristics. They may be unstable, there are issues with delimitations. Did the Commission investigate this? No. The Commission is blind for the differences and problems. The Commission generalises, while generalizations should not be made. | * 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. |
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| * Severe sanctions on copyright violations may endanger freedom of speech. | |
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| * 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. | |
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| Thank EP | * Right-holders may assist the police with the investigation, help to draw conclusions. This threatens the neutrality of police investigation. |
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| framework art 4, see also the explanatory memorandum on this article | * 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. |
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| * 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. | |
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| 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 is criminalized. | * 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. |
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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. 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? | |
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| countless software developers, source code secret, no proir art database, not known what is new, not known what is inventive, | We conclude that the directive and framework are untimely, distortive and do not offer a proper solution for new issues. They should be rejected. |
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| impossible to write software without violating patents | You will find more information about this here [url] (pdf with www.ipred.org/en content) |
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| “independent (re)discovery” more than 30.000 software patents impossible to give indemnification ===================================== IPRED 2 Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on criminal measures aimed at ensuring the enforcement of intellectual property rights Proposal for a COUNCIL FRAMEWORK DECISION to strengthen the criminal law framework to combat intellectual property offences November 22th 2005 FFII IPRED 2 Violates the legitimacy principle. Violates the subsidiarity principle. IPRED 2 is excessive. Legitimacy 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. We have a complication. 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. In copyright law there are issues with the definitions of “work”, “independent” recreation, “parody”. Trade marks. Trade marks have to be defended rigorously, otherwise they are lost. Trade Marks are unstable. Fact X can turn out not to be a crime! We will have a crazy situation at hand. Fact X can turn out to be a crime, or fact X can turn out not to be a crime! And you will find out in court. This should never be allowed! We are not living in the dark middle ages, this is the 21st century. People are entitled to know what is a crime in advance. Otherwise legitimacy is lost, there is no protection against arbitrary power. Patents cause lots of problems already. The “As such” exclusions are unclear and drifting. We have a major quality problem at hand. It is impossible to know all patents. In the software industry, it is impossible not to violate patents. With IPRED 2, just doing your job may get you 4 years in prison. Trade names NL first offence: Civil servant can propose measures to take to stop the offence No punishment Minor offence 2250 euro Second offence: 2250 euro or two weeks Trade names NL first offence: Civil servant can propose measures to take to stop the offense No punishment Minor offence 2250 euro Second offence: 2250 euro or two weeks Excessive > 100 times as severe for a first offense as now in NL for a second offence In NL: no cases the last 50 years Total lack of necessity Disproportionate to the offense, article 49(3) Charter of Fundamental Rights IP-rights IP-rights Many Very different Commission did not investigate the issues Solve the legitimacy problem Exclude unstable rights Clear up grey area's Rewrite all IP-laws Scope of protection drastically narrowed Privatize the police Right-holders may assist the police with the investigation, help to draw conclusions. Neutrality of police investigation? Privatization of the police, how far should it go? Subsidiarity IPRED 2 not needed: piracy already forbidden We already have TRIPS We already have IPRED 1 IPRED 2: Conclusions Legitimacy is lost Excessive Distorts carefully balanced national procedural law systems IPRED 2: Conclusions Legitimacy is lost Excessive Distorts carefully balanced national procedural law systems Tweede pagina: Invalidated in court Fundamentally unstable No legitimacy at all No protection against arbitrary power Patents are totally unfit for criminal sanctions IPRED 2 first offence: 100.000 / 300.000 euro Criminal offence 4 years 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 Commission blind for all the issues Justification: one A4 page long, 463 words Grave violation of the subsidiarity principle Right-holders may assist the police with the investigation, help to draw conclusions. What will be the impact on neutrality of police investigation? Privatization of the police, how far should it go? These are really fundamental questions. The Commission says nothing about it. Let's take a look at patents. 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. A patent is an unstable right. from patentability as such subject to debate for 30 years There are many IP-rights, we have here the whole list of all concerned. All of them with their own characteristics, their own problems. . The proposal violates the legitimacy and subsidiarity principles, is excessive, and distorts carefully balanced procedural law systems. What happens if we make violating a patent a crime? The patent may be nullified by the court. That will, of course, not be known before person A acts. It is impossible to base criminal sanctions on unstable rights. It would be a violation of the legitimacy principle. Let's zoom in to software patents for a moment. There are countless software developers around the world, often they keep their source code secret. There is no prior art database, it is not known what is new. If you do not even no what is new, it is impossible to know what is really inventive. depending on the circumstances Two companies with the same name. What happens? In Netherlands, violating a trade name is a minor offense Civil servant can propose measures to take to stop the offense No punishment 2250 euro fine A second offense: Same fine, or 2 weeks prison 100.000 euro 300.000 euro 4 years prison On first offense! 100 times as severe for a first offense as now in NL for a second offense In NL: no cases the last 50 years Total lack of necessity Disproportionate to the offense Hearing: IPRED2 on November 22th 2005 Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on criminal measures aimed at ensuring the enforcement of intellectual property rights Proposal for a COUNCIL FRAMEWORK DECISION to strengthen the criminal law framework to combat intellectual property offences FFII IPRED 2 Legitimacy Subsidiarity Proposal excessive Rude disturbance of carefully balanced procedural law systems There are serious issues with legitimacy, subsidiarity, the proposal is excessive, and distorts carefully balanced procedural law systems. Legitimacy Person A commits fact X proven beyond reasonable doubt Fact X is a crime written down in a law before person A acts Legitimacy Patents Civil court cases Almost always counterclaim for invalidity Counterclaims often granted Patent unstable right Patents. 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 often granted. A patent is an unstable right. Legitimacy What happens if we make violating a patent a crime. Violating patent X is a crime written down in a law before person A acts Violating patent X is a crime (red cross through patent) The patent may be nullified by the court. That will, of course, not be known before person A acts. It is impossible to base criminal sanctions on unstable rights. That would be a total violation of the legitimacy principle. Not known before person A acts Impossible to base criminal sanctions on unstable rights Violation of legitimacy principle Throwing this away is throwing civilisation away. Legitimacy Patents are unstable rights Patents have to be excluded from criminal sanctions Or, patents have to be abolished These are the only 2 options we have, if we do not want to throw away our civilisation. Legitimacy IP-rights 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 Legitimacy Trade names may be globally, nationally or locally Same area? More companies can have the same name, if they are not in the same area. When is the distance big enough? Legitimacy Trade marks have to be defended rigorously Lost Legitimacy Copyright straightforward? Wat is a "work"? What is an “independent” recreation? What is “parody”? Copyright may seem more straightforward, but here we have questions like... Legitimacy Solve the legitimacy problem Exclude unstable rights Exclude grey area's Rewrite all IP-laws Scope of protection drastically narrowed To in so far IP-rights are stable and totally clear Abolish some of them, if not all Legitimacy Conclusion The directive and framework violate the legitimacy principle The most precious principle in criminal law Subsidiarity Not needed: piracy already forbidden Are there any countries where this is not the case? The Commission did not investigate this. Justification one A4 page long Subsidiarity Intellectual Property Rights Enforcement Directive 2004 Subsidiarity Many issues with criminal sanctions on IP-rights Unstable rights, grey area's Requires subtle approaches that fit into national law systems Commission totally blind for these issues As long as the Commission is blind, these issues can only be solved at a national level Subsidiarity Subsidiarity Right-holders may assist the police with the investigation, help to draw conclusions. neutrality of police investigation? saveguards against abuse by right-holders? public interest, private interest? privatisation of the police, how far should it go? The purpose of this article is to ensure that investigations into, or prosecution of, counterfeiting and piracy offences are not dependent on a report or accusation made by a person subjected to the offence, at least if the acts were committed in the territory of the Member State Excessive In Netherlands, violating a trade name is a minor offence. Civil servant can propose measures to take to stop the offence No punishment 2250 euro fine A second offence Same fine, or 2 weeks prison Commission: 4 years, first offence The Commission wants More than 100 times for a first offence, while a first offence Subsidiarity “... the Commission shall consult widely.” “Any draft European legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality.” “... substantiated by qualitative and, wherever possible, quantitative indicators. “ Subsidiarity No consultation mentioned in the proposal No detailed statement on subsidiarity No qualitative and quantitative indicators 2. PROTOCOL ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2004/c_310/c_31020041216en02070209.pdf “Article 2 Before proposing European legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.” “Article 5 Draft European legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft European legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a European framework law, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft European legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.” No consultation mentioned in the proposal. No detailed statement on subsidiarity. No qualitative and quantitative indicators. I wouldn't attack IPRED 1 as such, but rather, like Reinier, point out that criminal sanctions demand more strict definitions, a more narrow scope of protection. The implications of criminal sanctions are the attack on IPRED 1. overtreding as such geen vervolging inbreuk octrooien minefield over een kam strafmaat conclusies trekken onbevooroordeeldheid Het voorstel verstoort grondrechten en nationale strafrechtstelsels. rude disturbance of carefully balanced procedural law systems. more restrictive in defining the scope of copyright comparison national law systems comparison ip-rights four years' imprisonment The Member States shall take the measures needed to allow the total or partial confiscation of goods belonging to convicted natural or legal persons in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property19, at least where the offences are committed under the aegis of a criminal organisation, within the meaning of Framework Decision …. on the fight against organised crime, or where they carry a health or safety risk. The Member States must ensure that the holders of intellectual property rights concerned, or their representatives, and experts, are allowed to assist the investigations carried out by joint investigation teams into the offences referred to in Article 3 of Directive ..../…/EC. It is very difficult to carry out investigations in this area and it is often essential to have the active participation of the victims, of representatives of the holder of the intellectual property rights or of experts in order to reach conclusions, and in particular to establish that products have been counterfeited. Member States have a good deal of latitude in this regard. http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_162/l_16220020620en00010003.pdf Article 49(3) of the Charter to the effect that sentences should not be disproportionate to the offence. 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 |
Some remarks on TempRemarks |
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)
Some remarks on TempRemarks