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| = IPRED 2 = | |
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| Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on criminal measures aimed at ensuring the enforcement of intellectual property rights |
== Commercial scale == |
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| Proposal for a COUNCIL FRAMEWORK DECISION to strengthen the criminal law framework to combat intellectual property offences |
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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| == IPRED 2 == | 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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| Violates the legitimacy principle. Violates the subsidiarity principle. IPRED 2 is excessive. | 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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| == Legitimacy == | == Do we want not for profit file sharing to be organised crime? == |
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| 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. | |
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| 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. | |
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| 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”. | |
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| 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. | |
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| 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. | |
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| 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 proir 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 is criminalized. With IPRED 2, just doing your job may get you 4 years in prison. | |
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| 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. This happens often. 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. | |
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| Patents are totally unfit for criminal sanctions. | If executed together with others, file sharing could be regarded as organised crime. We could see adolescents' actions countered with means suited for fighting organised crime - as if we or our friends never tried to slip into the picture theatre or circus without paying. And all this while 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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| == Excessive == | It is even doubtful whether "commercial scale" will be enough of a requirement to prevent to above scenario. |
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| Let´s take al 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. | 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? |
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| 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. | 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. |
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| 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) Charter of Fundamental Rights. | 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. |
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| == IP-rights == We took a look at 4 "intellectual property" rights. There are many and they are very different from each other: 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 saveguards 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. TRIPS already obliges members to provide criminal procedures (in cases of wilful trademark counterfeiting or copyright piracy). These obligations are seen as severe. And we already have the Intellectual Property Rights Enforcement Directive 2004. Not enough? We can not know, it is being implemented now. There is no need for IPRED 2. == 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. |
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?
- If executed together with others, file sharing could be regarded as organised crime. We could see adolescents' actions countered with means suited for fighting organised crime - as if we or our friends never tried to slip into the picture theatre or circus without paying. And all this while many countries have levies on writeable CDs and DVDs, etc. Public and companies are already paying, even if they store only their own material.
It is even doubtful whether "commercial scale" will be enough of a requirement to prevent to above scenario.
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.