IPRED 2 is excessive and distorts carefully balanced national procedural law systems. IPRED 2 threathens legal security.

The aim is supposed to be fighting piracy. IPRED 2 is not needed: piracy is already forbidden in European countries. And TRIPS already lays down severe provisions on means of enforcing trade-related intellectual property rights.

Do we need a war on IP infringement? In reality even commercial infringement is certainly not always piracy.

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? For reasons of human rights criminal laws require very precise definitions. The IP laws do not provide them. Are we willing to rewrite our IP laws?

In some cases, like trade names, prison sentences go up more than a 100 times. Dutch tradenames law is geared to reconciliation, not punishment. Criminal provisions were never used since late 1950's. There is no need for such severe sentences as IPRED 2 has in store.

In trade marks, currently typically only counterfeiting is a crime. Trademark infringement in general is very complicated and subtle. Not suited for criminal sanctions. IPRED 2 creates a risk of reverse hijacking, prosecuting legitimate owners under false pretexts, for instance with domain names in particular.

In patent law criminal provisions are hardly ever used – even by SMEs. Commercial parties prefer settlement, not punishment. The “As such” exclusions in patent law are unclear and drifting. Patents have a major quality problem. 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 can get you 4 years in prison. Software patents are a legal minefield, with criminal sanctions added!

Patents can be invalidated in court. They are fundamentally unstable. Patents are totally unfit for criminal sanctions!

Right-holders may assist the police, even with drawing conclusions. What will be the impact on the neutrality of police investigation? What are the safeguards against abuse?

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 balance. IPRED 2 is not balanced.

For the sake of responsible lawmaking, protection of carefully balanced national procedural law systems, subsidiarity, legal security, balance of interests, we ask you to say no to these superfluous 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.

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

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. For instance in copyright law there are issues with definitions like “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.

Especially in the software field, problems are huge. There are countless software developers around the world, who often keep their source code secret. There is no prior art database, it is not known what has already been done. It is not known what is new, and if you do not know what is new, it is impossible to know what is inventive. 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 will be criminalized. With IPRED 2, just doing your job may get you 4 years in prison.

Patents can be invalidated in court. 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. Patents are fundamentally unstable. Again fact X can be a crime or not a crime. There is no legitimacy at all. No protection against arbitrary power.

Patents are totally unfit for criminal sanctions.

Excessive

Let´s take a look at trade names. In the Netherlands, on first offence the civil servant can propose measures to take to stop the offence. Then there will be no punishment. Violating a trade name is a minor offence in the Netherlands, the fine is 2250 euro. On second offence the fine is the same or two weeks of prison.

With IPRED 2 violating trade names is a criminal offence, the sanctions for a first offence are 100.000 or 300.000 euro, depending on the circumstances, or 4 years of prison.

The prison sentence is more than 100 times as severe for a first offense as it is now in the Netherlands for a second offence. In the Netherlands, there have not been cases for the last 50 years. Clearly, there is a total lack of necessity. And the sanctions are disproportionate to the offense, which is a violation of article 49(3) of the Charter of Fundamental Rights.

IP-rights

We took a look at four "intellectual property" rights. There are many of them and they are very different from each other. This is the list of the ones concerned: 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.

The four we looked at, have many issues, how many issues will the others have? We do not know, the Commission did not investigate the issues at all.

Solve the legitimacy problem

Let´s try to solve the legitimacy problem. Here are the things that at least need to be done:

- Exclude unstable rights

- Clear up grey area's

- Rewrite all IP-laws

- Scope of protection has to be drastically narrowed

Privatize 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). What will be the impact on neutrality of police investigation? Privatization of the police, how far should it go? What are the safeguards against abuse? For instance patents are used strategically. Will the police become part of power play by multinationals? These are really fundamental questions. The Commission provides no answers at all. How could it, the whole justification is one A4 page long, 463 words.

Subsidiarity

IPRED 2 is not needed: piracy is already forbidden in European countries. And TRIPS already lays down severe provisions on means of enforcing trade-related intellectual property rights. These include the implementation of criminal procedures and criminal penalties. In no way the Commission makes clear these are not enough.

In 2004 the Council and European Parliament adopted the Intellectual Property Rights Enforcement Directive (IPRED). It is being implemented at the moment. Effects are not clear yet, it is unknown whether further measures are needed.

Conclusion

With IPRED 2 legitimacy is lost. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. The Commission is blind for all the issues. The justification is just one A4 page long, 463 words. IPRED 2 is a grave violation of the subsidiarity principle.

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.