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.

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. It should be rejected.

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Conclusion

For the sake of protection of carefully balanced national procedural law systems, subsidiarity and legal security,

in order to keep Europe's software developers out of jail,

in order to reach a balanced and well thought-out solution for internet file sharing,

we ask you to reject these superfluous and detrimental proposals. Introduction

PRED 2 adds criminal sanctions to a legal minefield

In order to fight piracy, IPRED 2 makes all commercial violations of “intellectual property rights" a crime. All commercial violations. But not all intentional commercial violations of these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations that are not pirates is very serious. The principal issue is that IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates.

• Take copyright. The question whether a work is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium. Severe sanctions on copyright violations may endanger freedom of speech.

• Take Patent law. Patent law definitions are unclear and drifting. 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? He can go to jail, together with Europe's software developers, since IPRED 2 criminalises companies that are not pirates.

Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. Furthermore, IPRED 1 is being implemented right now. At the moment no assessment can be made whether an instrument is missing. Yet prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems.

Internet file sharing of copyrighted material is a new issue, that requires a balanced and well thought-out solution. The question may be asked whether a society that reacts to new developments with an everything-is-a-crime approach is a viable society. In our opinion we are witnessing an overreaction that will cause more damage than good.

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. More importantly, removing or undermining "commercial scale" will have enormous consequenses.

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. We should be very clear about whether we want this. It should not be an "accidental" byproduct of this directive.

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.

Legal threats

Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them 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.

[WWW] http://lawweb.usc.edu/news/releases/2005/legalFlaws.html Privatise the police

Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). This threatens the neutrality of police investigation.

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.

Legal threats

Severe sanctions pose a threat, and will provoke false threats. A US study of a sample of nearly 900 take down notices collected by the Chilling Effects project revealed that a third of them 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.

[WWW] http://lawweb.usc.edu/news/releases/2005/legalFlaws.html Privatise the police

Right-holders may assist the police with the investigation, help to draw conclusions (framework art 4, see also the explanatory memorandum on this article). This threatens the neutrality of police investigation.