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| = IPRED 2: = == Do we really want to see Bill Gates behind bars? == |
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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| 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. | * IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates. |
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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. | * 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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| 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? | * 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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| 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. | * 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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| 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? | * 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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| In some cases, like trade names, prison sentences go up more than a 100 times. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. | * Severe sanctions on copyright violations may endanger freedom of speech. |
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| In trade marks, currently typically only counterfeiting is a crime. Trademark infringement in general is very complicated and subtle. Not suited for criminal sanctions. | * 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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| 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. | * Right-holders may assist the police with the investigation, help to draw conclusions. This threatens the neutrality of police investigation. |
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| 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. | * 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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| 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. | * 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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| 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. | * 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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| Thank you. | * 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) |
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)