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.
TRIPS: “Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale.”
TRIPS already obliges members to provide criminal procedures (in cases of wilful trademark counterfeiting or copyright piracy). These obligations are seen as severe. There is no need for a directive.
We also have the Intellectual Property Rights Enforcement Directive 2004. Not enough? We can not know, it is being implemented now.
Here we have a list of the IP rights concerned. There are many of them, all of them with their own characteristics. They may be unstable, there are issues with delimitations. Did the Commission investigate this? No. The Commission is blind for the differences and problems. The Commission generalises, while generalizations should not be made.
Thank EP
framework art 4, see also the explanatory memorandum on this article
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.
countless software developers, source code secret, no proir art database, not known what is new, not known what is inventive,
impossible to write software without violating patents
“independent (re)discovery”
more than 30.000 software patents
impossible to give indemnification
=====================================
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
November 22th 2005
FFII
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. In copyright law there are issues with the definitions of “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. In the software industry, it is impossible not to violate patents. With IPRED 2, just doing your job may get you 4 years in prison.
Patents can be invalidated in court. 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.
Patents are totally unfit for criminal sanctions.
Excessive
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.
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) Charter of Fundamental Rights.
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 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.
Conclusions
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.
Tweede pagina:
Invalidated in court Fundamentally unstable No legitimacy at all No protection against arbitrary power Patents are totally unfit for criminal sanctions
IPRED 2 first offence: 100.000 / 300.000 euro Criminal offence 4 years 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
Commission blind for all the issues Justification: one A4 page long, 463 words Grave violation of the subsidiarity principle
Right-holders may assist the police with the investigation, help to draw conclusions. What will be the impact on neutrality of police investigation? Privatization of the police, how far should it go?
These are really fundamental questions. The Commission says nothing about it.
Let's take a look at patents. 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. A patent is an unstable right.
from patentability
as such subject to debate for 30 years
There are many IP-rights, we have here the whole list of all concerned. All of them with their own characteristics, their own problems. .
The proposal violates the legitimacy and subsidiarity principles, is excessive, and distorts carefully balanced procedural law systems.
What happens if we make violating a patent a crime? The patent may be nullified by the court. That will, of course, not be known before person A acts. It is impossible to base criminal sanctions on unstable rights. It would be a violation of the legitimacy principle.
Let's zoom in to software patents for a moment.
There are countless software developers around the world, often they keep their source code secret. There is no prior art database, it is not known what is new. If you do not even no what is new, it is impossible to know what is really inventive.
depending on the circumstances
Two companies with the same name. What happens?
In Netherlands, violating a trade name is a minor offense Civil servant can propose measures to take to stop the offense No punishment
2250 euro fine A second offense: Same fine, or 2 weeks prison
100.000 euro 300.000 euro 4 years prison On first offense!
100 times as severe for a first offense as now in NL for a second offense In NL: no cases the last 50 years Total lack of necessity Disproportionate to the offense
Hearing: IPRED2 on November 22th 2005
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
FFII
IPRED 2
Legitimacy
Subsidiarity
Proposal excessive
Rude disturbance of carefully balanced procedural law systems
There are serious issues with legitimacy, subsidiarity, the proposal is excessive, and distorts carefully balanced procedural law systems.
Legitimacy
Person A commits fact X proven beyond reasonable doubt
Fact X is a crime written down in a law before person A acts
Legitimacy
Patents
Civil court cases
Almost always counterclaim for invalidity
Counterclaims often granted
Patent unstable right
Patents. 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 often granted. A patent is an unstable right.
Legitimacy
What happens if we make violating a patent a crime.
Violating patent X is a crime written down in a law before person A acts
Violating patent X is a crime (red cross through patent)
The patent may be nullified by the court. That will, of course, not be known before person A acts. It is impossible to base criminal sanctions on unstable rights. That would be a total violation of the legitimacy principle.
Not known before person A acts
Impossible to base criminal sanctions on unstable rights
Violation of legitimacy principle
Throwing this away is throwing civilisation away.
Legitimacy
Patents are unstable rights
Patents have to be excluded from criminal sanctions
Or, patents have to be abolished
These are the only 2 options we have, if we do not want to throw away our civilisation.
Legitimacy
IP-rights
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
Legitimacy
Trade names may be globally, nationally or locally
Same area?
More companies can have the same name, if they are not in the same area. When is the distance big enough?
Legitimacy
Trade marks have to be defended rigorously
Lost
Legitimacy
Copyright straightforward?
Wat is a "work"?
What is an “independent” recreation?
What is “parody”?
Copyright may seem more straightforward, but here we have questions like...
Legitimacy
Solve the legitimacy problem
Exclude unstable rights
Exclude grey area's
Rewrite all IP-laws
Scope of protection drastically narrowed
To in so far IP-rights are stable and totally clear
Abolish some of them, if not all
Legitimacy
Conclusion
The directive and framework violate the legitimacy principle
The most precious principle in criminal law
Subsidiarity
Not needed: piracy already forbidden
Are there any countries where this is not the case? The Commission did not investigate this.
Justification one A4 page long
Subsidiarity
Intellectual Property Rights Enforcement Directive 2004
Subsidiarity
Many issues with criminal sanctions on IP-rights
Unstable rights, grey area's
Requires subtle approaches that fit into national law systems
Commission totally blind for these issues
As long as the Commission is blind, these issues can only be solved at a national level
Subsidiarity
Subsidiarity
Right-holders may assist the police with the investigation, help to draw conclusions.
neutrality of police investigation?
saveguards against abuse by right-holders?
public interest, private interest?
privatisation of the police, how far should it go?
The purpose of this article is to ensure that investigations into, or prosecution of, counterfeiting and piracy offences are not dependent on a report or accusation made by a person subjected to the offence, at least if the acts were committed in the territory of the Member State
Excessive
In Netherlands, violating a trade name is a minor offence.
Civil servant can propose measures to take to stop the offence
No punishment
2250 euro fine
A second offence
Same fine, or 2 weeks prison
Commission: 4 years, first offence
The Commission wants More than 100 times for a first offence, while a first offence
Subsidiarity
“... the Commission shall consult widely.”
“Any draft European legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality.”
“... substantiated by qualitative and, wherever possible, quantitative indicators. “
Subsidiarity
No consultation mentioned in the proposal
No detailed statement on subsidiarity
No qualitative and quantitative indicators
2. PROTOCOL ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY
http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2004/c_310/c_31020041216en02070209.pdf
“Article 2 Before proposing European legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.”
“Article 5 Draft European legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft European legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a European framework law, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft European legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.”
No consultation mentioned in the proposal. No detailed statement on subsidiarity.
No qualitative and quantitative indicators.
I wouldn't attack IPRED 1 as such, but rather, like Reinier, point out that criminal sanctions demand more strict definitions, a more narrow scope of protection. The implications of criminal sanctions are the attack on IPRED 1.
overtreding
as such
geen vervolging inbreuk octrooien
minefield
over een kam
strafmaat
conclusies trekken
onbevooroordeeldheid
Het voorstel verstoort grondrechten en nationale strafrechtstelsels.
rude disturbance of carefully balanced procedural law systems.
more restrictive in defining the scope of copyright
comparison national law systems comparison ip-rights
four years' imprisonment
The Member States shall take the measures needed to allow the total or partial confiscation of goods belonging to convicted natural or legal persons in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property19, at least where the offences are committed under the aegis of a criminal organisation, within the meaning of Framework Decision …. on the fight against organised crime, or where they carry a health or safety risk.
The Member States must ensure that the holders of intellectual property rights concerned, or their representatives, and experts, are allowed to assist the investigations carried out by joint investigation teams into the offences referred to in Article 3 of Directive ..../…/EC.
It is very difficult to carry out investigations in this area and it is often essential to have the active participation of the victims, of representatives of the holder of the intellectual property rights or of experts in order to reach conclusions, and in particular to establish that products have been counterfeited. Member States have a good deal of latitude in this regard.
http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_162/l_16220020620en00010003.pdf
Article 49(3) of the Charter to the effect that sentences should not be disproportionate to the offence.
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