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| = IPRED 2: = == Do we really want to see Bill Gates behind bars? == |
== Commercial scale == |
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| The aim of IPRED 2 is to stop piracy. But not all commercial violations of "intellectual property" rights are piracy. If we want to stop piracy, the thing to do is to stop counterfeiting. Beyond counterfeiting, things are unclear and very complicated. | The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not. |
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| In copyright, parodies, independent recreations and citations are free. The question whether something is an "independent recreation" or a violation of copyright is a though question. Questions like these should be handled in civil courts, not criminal courts. For reasons of human rights, criminal laws require more precise definitions. And criminal law should be the ultimum remedium. | We even see a call to remove "commercial scale" from the directive. This would for instance make file sharing by adolescents a crime, or organised crime, with very severe sanctions. |
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| IPRED 2 covers 11 "intellectual property" rights. We see counterfeiting with copyright and trade marks. What are the other 9 "intellectual property" rights doing in IPRED 2? | The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say. |
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| The aim of IPRED 2 is to stop piracy. But piracy is already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. The problem has already been solved. IPRED 2 goes further than solving the problem, and becomes a problem itself. | == Do we want not for profit file sharing to be organised crime? == |
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| The Commission made no assessment of the current situation. Are there any real problems today due to unintended legal limitations? How would the directive work out in various criminal law systems? | As seen above, not for profit file sharing may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime. |
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| In a case like trade names, prison sentences go up more than a 100 times. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. In trade marks, currently typically only counterfeiting is a crime. Trademark infringement in general is very complicated and subtle. Not suited for criminal sanctions. Patent law has many issues. Definitions are unclear and drifting. There is a major quality problem. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? Do we really want to see our neighbor, that hardworking owner of a Small or Medium Sized Enterprise put away for 4 years? IPRED 2 sets the framework. It is the lowest form of lawmaking. Big companies want to lock in customers, lock out competitors, acquire as many rights as possible and make these rights as strong as possible. The lawmaker has to strike a fair balance. IPRED 2 is not balanced. For the sake of responsible lawmaking, protection of carefully balanced national procedural law systems, subsidiarity and legal security, we ask you to say No to these superfluous and detrimental proposals. On July 6th the European Parliament rejected the software patents directive. We heartily thank you for that. 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. Thank you. |
Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material. |
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We are about to lower our standard of what is crime and organised crime. We are about to make many in our societies criminals and criminalise many commercial organisations that are not pirates. 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? Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies 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. The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. The reaction is panic-stricken, not wise. In our opinion we are witnessing an overreaction that will cause more damage than good. |
Commercial scale
The "commercial scale" requirement is not clear enough. Some right holders claim a possible loss of income is enough - an interpretation contrary to TRIPS. Depending on interpretation by courts, not for profit activities will be a crime, or organised crime or not.
We even see a call to remove "commercial scale" from the directive. This would for instance make file sharing by adolescents a crime, or organised crime, with very severe sanctions.
The call to remove "commercial scale" from the directive was motivated by the remark that courts could interpret "commercial scale" differently. This is not an argument, since the ECJ will have the final say.
Do we want not for profit file sharing to be organised crime?
As seen above, not for profit file sharing may become organised crime. We could see adolescents' actions countered with means suited for fighting organised crime.
Many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material.
We are about to lower our standard of what is crime and organised crime. We are about to make many in our societies criminals and criminalise many commercial organisations that are not pirates. 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?
Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The above mentioned levies 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.
The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. The reaction is panic-stricken, not wise.
In our opinion we are witnessing an overreaction that will cause more damage than good.