European Commission exceeds competence with criminal measures on violations of "intellectual property" rights

The European Commission has proposed a directive to criminalise infringements of "intellectual property rights" ("IP-rights"), such as patents, copyright and trade marks. The stated aim is to combat "piracy". While massive infringements on for instance copyright are indeed a problem, the directive itself is a bigger problem. Due to very weak definitions the directive does not only criminalises pirates, but also normal companies. And even people who share on a not for profit basis files on the internet, can be treated as organised criminals. You better watch what your kids our doing with your computer.

Should severe infringements of "IP-rights" go unpunished? Will Europe become a pirate continent without the directive? No, in all European countries copyright piracy and trade mark counterfeiting are already forbidden. And companies can go to civil courts to get damages, which is more rewarding than getting infringers in jail.

Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. The first question to be asked is whether we want this. Should we want a Union with a democratic deficit to write our criminal laws? Our answer is no, we believe only countries have enough legitimacy to make criminal laws.

Does the Community have the competence to make this directive? The Dutch Parliament unanimously decided the Commission exceeds it competence with this directive. And Donner, minister of Justice for the Netherlands, was not pleased too. He [http://wiki.ffii.org/IpredDonner060428En pointed out] that harmonisation of penalties should only be done if there is a real EU interest. The [http://www.ipred.org/Hilty only legal ground] for a directive like this, a harmonisation of criminal measures, is a distortion of trade, i.e, if the non-harmonised state leads to a competitive advantage of member states having lower penalties. The Commission does not even try to make that case.

The directive includes all "IP-rights". As we saw above, copyright piracy and trade mark counterfeiting are already forbidden in all European countries. And for some other rights, like patents, criminal measures have an adverse effect on competion and innovation.

In our opinion, the directive is unnecessary and gross. The dustbin is the best place for it.

In 10 of the EU's 25 countries patent infringement is a crime. Does the fact that it is not a crime in all 25 countries lead to distortion in trade, does it give the countries in which it is not a crime a competitive advantage? Nobody has ever claimed such a thing. There is no legal ground for including patent infringement in this directive. There are 10 more IP rights for which this question has to be answered.

If the competence issue is solved for some of the IP rights, then the 4 requirements of a crime (see below) have to be met in order to meet the subsidiarity and proportionality requirements. The Commission proposal does not meet them.

Without the competence, subsidiarity and proportionality requirements met, the directive is illegal, has to be rejected.

As far as many companies are concerned, patents have to go out - a political reason for rejection.

Should we want a Union with a democratic deficit to write our criminal laws? - a political reason for rejection.

Do we want our adolescents that share files on the internet to be treated as organised criminals? - yet an other reason for rejection.

The Commission made a severe faute passe in a sensitive field. The proposal should meet a flat rejection in first reading in the European Parliament.

In April 2006 the European Commission [http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en announced the directive.]

Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.]

[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)

[http://www.ipred.org/history History]

Main points

Scope

Patents have to be taken out. [http://wiki.ffii.org/Ipred2GovLtrsEn FFII:] "It is in practice impossible to write and sell software products without certainty that your product does not violate one of the 65,000 software or business method patents granted by the European Patent Office." [http://wiki.ffii.org/IpredEp051122En Others] protested criminalisation of patent infringement too.

No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime

Elements of a crime

Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:]

"As a matter of fact, a harmonisation of IP criminal statutes can be justified from the point of view of the principles of subsidiarity and proportionality only in connection with actions by which the following elements of a crime are fulfilled cumulatively:

• - Identity of the exploited object of protection (the good takes on characteristic elements of a protected product or label in a targeted and unmodified fashion – construction, assembly, etc.) - Commercial activity with an intention to earn a profit - Potential to cause considerable damage - Intent or contingent intent (dolus eventualis)"

Note these are the minimal elements. They are better defined more sharp to prevent accidents. The Commission proposal does not even meet the minimal elements. Since the stated aim of the directive is to combat "piracy", the fourth requirement should be "criminal intention", not "Intent or contingent intent".

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Full name: Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights

[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)

[http://tinyurl.com/9djqm EU docs]

[http://www.ipred.org/2005 the 2005 proposals]

2005 : COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS)

[http://www.ipred.org/Hilty Hilty:] 4 basic elements

[http://wiki.ffii.org/Ipred2GovLtrsEn FFII: Call on the 25 Governments to remove criminal sanctions in case of patent infringement]

[http://wiki.ffii.org/JuriHearing060131En Hearing 31st Jan. 2006]

[http://www.ffii.org/~ante/FFII-ipred051127.pdf FFII letter Nov 27th]

[http://wiki.ffii.org/IpredEp051122En European Parliament hearing 22 November 2005]

[http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk]

[http://wiki.ffii.org/Ipred2En FFII]

[http://plone.ffii.org/Members/coordinator/FFII%20UK%20IPRED2%20consultation.pdf/download FFIII-UK]

[http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSFE]

[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf 2005 Commission proposal]

Reinier Bakels made a presentation for SANE. You can download it in:

• ISO Open Document Format attachment:RBB060517.odp
• PDF attachment:RBB060517.pdf

• PowerPoint (please [http://www.openoffice.org download OpenOffice] and use ISO Open Document Format) attachment:RBB060517.ppt

• OpenOffice.org 1 attachment:RBB060517.sxi

[http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper]

[http://www.ipred.org/ipred1 IPRED 1] (2004)

[http://europa.eu.int/servlet/portail/RenderServlet?search=DocNumber&lg=en&nb_docs=25&domain=Legislation&coll=&in_force=NO&an_doc=2003&nu_doc=1383&type_doc=Regulation Customs regulation]