Differences between revisions 31 and 255 (spanning 224 versions)

Introduction] Analysis] How To] Fact sheet] Downloading]

The Criminal Measures IP Directive: Criminalizing the industry

The European Commission has proposed a directive to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.

A badly drafted Commission proposal was matched by badly drafted European Parliament amendments, and an amendment changed after the vote. The proposal is now in the hands of the Council.

Behind closed doors the EU, US and Japan negociate an Anti-Counterfeiting Trade Agreement (ACTA), with much the same content, or even worse. See our ACTA page.

Commission withholds key study on criminal measures from European Parliament

Commission withholds key study on criminal measures from European Parliament

Official Journal of the European Union publishes corrupted text

Update: In a letter to MEP Eva Lichtenberger, the President of the European Parliament admitted a mistake was made. The text will be corrected.

Adopted amendment 15, excluding parallel importation, is not incorporated in the consolidated text. MEP Eva Lichtenberger wrote the President of the European Parliament a letter.

Heise has the story.

The FFII has the analysis

Despite formal objections raised on 4 December 2007 by MEP and shadow rapporteur Eva Lichtenberger the Official Journal of the European Union published the controversial and contested version. See the second part of the PR.

The Official Journal of the European Union

Coalition report on the European Parliament vote

Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive.

FFII press release

FFII/BEUC/EBLIDA/EFF Coalition report on the vote

Carte Blanche Criminal Law

Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive.

Take action: www.copycrime.org

Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states).

Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison.

Legal Affairs Committee washes hands in innocence

The European Parliament Legal Affairs Committee voted on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place?

The Prosecution Paradise Directive

A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.

Legal Affairs committee votes on criminalising downloading

Monday Februari 26 and Tuesday Februari 27, 2007, the European Parliament's Legal Affairs committee will discuss and vote on a proposal by Mr Manders, MEP, to criminalise downloading.

The proposal was rejected.

The Criminal Measures IP Directive: European Commission criminalises the industry

Commercial infringements

Beyond clear cases of piracy, it is impossible to tell in advance whether an act is an infringement or fair competition. On a daily basis companies try out the boundaries of "IP-rights". Is this product a look alike? Is this copycat or will the patent be invalidated? Is this work an independent recreation? Companies reach agreements or fight it out in civil courts. If a right was indeed infringed, damages are paid. This is a fair process. Adding criminal sanctions to this fair process creates a big threat potential that inhibits the desired freedom to act in the market.

Bizarre consequences

By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. It is impossible to write software without violating patents. A whole industry will be criminalised. Microsoft has been violating many patents, and had to pay huge damages. With this directive, we could see Bill Gates in prison. Even companies which merely use properly licensed software are criminalised, since such use is intentional, commercial scale and can infringe on software patents. And people who share files on the internet, on a not-for-profit basis, can be treated as organised criminals. You better watch what your kids are doing with your computer.

Superfluous

To combat piracy the legal means are already installed. What is actually needed is better coordination between countries. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. Unlike the directive, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.

Carte blanche

An other bizarre aspect of the proposal is that is has an open end: all existing and future "IP-rights" are covered. It is a carte blanche. Seen this misguided, superfluous and outrageous directive, is there anyone who wants to give the Commission carte blanche?

No competence

Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. In our opinion, only countries have enough legitimacy to make criminal laws. The Dutch Parliament unanimously concluded the Commission exceeds its competence with this directive.

Conclusion and analysis

The directive has to be rejected:

it is misguided, superfluous and outrageous
the Community lacks legitimacy and competence

If not rejected, member states should take the directive to the European Court of Justice.

A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question.

For conclusion and analysis see our analysis page.

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

COM(2006)0168

C6‑0233/2005

2005/0127(COD)

English

More translations will be available later on. Change "en" twice in the link for translations.

ipred.org

In 2004 the Council and European Parliament adopted an Intellectual Property Rights Enforcement Directive (IPRED). To make fast adoption possible (before 10 new members joined the EU), criminal penalties were taken out.

The criminal measures are back in the 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 (DCMEIPR ?). This new directive is often called IPRED 2.

ipred.org is set up by Vrijschrift.org

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 [[[http://www.ipred.org/MainPage|Introduction]]] [[[http://www.ipred.org/analysis|Analysis]]] [[[http://www.ipred.org/howto|How To]]] [[[http://www.ipred.org/factsheet|Fact sheet]]] [[[http://www.ipred.org/download|Downloading]]]
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-COM(2005)276 final
+------

= The Criminal Measures IP Directive: Criminalizing the industry =
''The European Commission has proposed a [[http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en|directive]] to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.''

A badly drafted Commission proposal was matched by badly drafted European Parliament amendments, and an amendment changed after the vote. The proposal is now in the hands of the Council.

Behind closed doors the EU, US and Japan negociate an Anti-Counterfeiting Trade Agreement (ACTA), with much the same content, or even worse. See our [[acta|ACTA]] page.

----------

=== Commission withholds key study on criminal measures from European Parliament ===
 * [[http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament|Commission withholds key study on criminal measures from European Parliament]]
=== Official Journal of the European Union publishes corrupted text ===
==== Update: In a letter to MEP Eva Lichtenberger, the President of the European Parliament admitted a mistake was made. The text will be corrected. ====
Adopted amendment 15, excluding parallel importation, is not incorporated in the consolidated text. MEP Eva Lichtenberger wrote the President of the European Parliament a letter.

[[http://www.heise.de/newsticker/meldung/100175|Heise has the story.]]

[[http://action.ffii.org/ipred2/Mistake_in_EP_provisional_consolidated_text_Criminal_Measures_IP_directive|The FFII has the analysis]]

Despite formal objections raised on 4 December 2007 by MEP and shadow rapporteur Eva Lichtenberger the Official Journal of the European Union published the [[http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament|controversial and contested version]]. See the second part of the PR.

[[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:074E:0527:0533:EN:PDF|The Official Journal of the European Union]]

=== Coalition report on the European Parliament vote ===
Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive.

[[http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses,_Consumers,_Innovators|FFII press release]]

[[http://action.ffii.org/ipred2/Report_on_EP_vote|FFII/BEUC/EBLIDA/EFF Coalition report on the vote]]

=== Carte Blanche Criminal Law ===
Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive.

Take action: [[http://www.copycrime.org|www.copycrime.org]]

Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states).

Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison.

[[http://www.ipred.org/april2007|read more]]

=== Legal Affairs Committee washes hands in innocence ===
The European Parliament Legal Affairs Committee [[http://action.ffii.org/ipred2/JURI_Tabled_Amendments|voted]] on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place?

[[http://www.ipred.org/legalaffairs07|read more]]

=== The Prosecution Paradise Directive ===
A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.

[[http://www.ipred.org/prosecutionparadise|read more]]

=== We do not want our kids to be criminals - just for enjoying a videoclip on YouTube ===
==== Legal Affairs committee votes on criminalising downloading ====
Monday Februari 26 and Tuesday Februari 27, 2007, the European Parliament's Legal Affairs committee will discuss and vote on a proposal by Mr Manders, MEP, to [[http://www.ipred.org/download|criminalise downloading]].

[[http://action.ffii.org/ipred2/JURI_Tabled_Amendments|The proposal was rejected.]]

----------
 <<BR>>

= The Criminal Measures IP Directive: European Commission criminalises the industry =
''The European Commission has proposed a [[http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en|directive]] to combat piracy and other infringements of "intellectual property rights" (IP-rights), such as patents, copyright and trade marks. While it does make sense to combat clear cases of piracy, it is nonsense to combat other infringements than such clear cases, with criminal measures. These other infringements occur during normal commercial business conduct, civil courts decide on them. The Commission criminalises the industry, inhibits the desired freedom to act in the market. Decent people can be treated as organised criminals.''

=== Commercial infringements ===
Beyond clear cases of piracy, it is impossible to tell in advance whether an act is an infringement or fair competition. On a daily basis companies try out the boundaries of "IP-rights". Is this product a look alike? Is this copycat or will the patent be invalidated? Is this work an independent recreation? Companies reach agreements or fight it out in civil courts. If a right was indeed infringed, damages are paid. This is a fair process. Adding criminal sanctions to this fair process creates a big threat potential that inhibits the desired freedom to act in the market.

=== Bizarre consequences ===
By not making a distinction between piracy and other infringements, the Commission creates bizarre consequences. It is impossible to write software without violating patents. A whole industry will be criminalised. Microsoft has been violating many patents, and had to pay huge damages. With this directive, we could see Bill Gates in prison. Even companies which merely use properly licensed software are criminalised, since such use is intentional, commercial scale and can infringe on software patents. And people who share files on the internet, on a not-for-profit basis, can be treated as organised criminals. You better watch what your kids are doing with your computer.

=== Superfluous ===
To combat piracy the legal means are already installed. What is actually needed is better coordination between countries. Copyright "piracy" and trade mark counterfeiting are already crimes throughout the EU, the TRIPS-treaty sees to that. Unlike the directive, the national laws are carefully balanced. With its weak definitions, the directive distorts carefully balanced national procedural law systems.

=== Carte blanche ===
An other bizarre aspect of the proposal is that is has an open end: all existing and future "IP-rights" are covered. It is a carte blanche. Seen this misguided, superfluous and outrageous directive, is there anyone who wants to give the Commission carte blanche?

=== No competence ===
Interestingly enough, it is the first time the European Union proposes criminal measures, without the member states having a veto. In our opinion, only countries have enough legitimacy to make criminal laws. The Dutch Parliament unanimously concluded the [[http://wiki.ffii.org/IpredNlParl060629En|Commission exceeds its competence]] with this directive.

----------

== Conclusion and analysis ==
The directive has to be rejected:

 * it is misguided, superfluous and outrageous
 * the Community lacks legitimacy and competence
If not rejected, member states should take the directive to the European Court of Justice.

A complete rewrite could be contemplated. This would result in a directive that does not go any further than the TRIPS treaty. Since we already have the TRIPS treaty, it would not make much sense. While this approach would take away the gross aspects of the directive, it would not solve the competence question.

For conclusion and analysis see our [[http:analysis|analysis page]].

----------

== 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

COM(2006)0168

C6‑0233/2005
-Line 14:
+Line 115:
-/0128(CNS)
+ * [[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf|English]]
More translations will be available later on. Change "en" twice in the link for translations.
-Line 16:
+Line 118:
+ * [[http://register.consilium.europa.eu/pdf/fr/06/st08/st08866.fr06.pdf|French]]
 * [[http://register.consilium.europa.eu/pdf/de/06/st08/st08866.de06.pdf|German]]
 * [[http://tinyurl.com/9djqm|Council documents on the subject]]
 * [[http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=193131#381074|Commission]]
 * [[http://preview.tinyurl.com/ytfdrd|Council Substantive Criminal Law Working Groups' agenda]]
 * [[http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=COPEN&dd_DATE_REUNION=|COPEN]]
 * [[http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=JAI&dd_DATE_REUNION=|JAI]]
 * [[http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&ssf=DATE_DOCUMENT+DESC&fc=REGAISEN&srm=25&md=400&typ=Simple&cmsid=638&ff_TITRE=&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=DROIPEN&dd_DATE_REUNION=|DROIPEN]]
----------
-Line 17:
+Line 128:
-In 2004 the Council and European Parliament adopted an Intellectual Property Rights Enforcement Directive (IPRED). To make fast adoption possible (before 10 new members joined the EU), criminal penalties were taken out. Now these criminal penalties are back in 2 new European Commission proposals. Often these are referred to as IPRED 2. The official names are:
+== Links ==
 * [[http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/06/532&format=HTML&aged=0&language=EN&guiLanguage=en|Commission announcement]]
 * The directive is an amended version, [[http://www.ipred.org/history|see the History]]
 * [[http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf|Max Planck Institute: Statement on Directive on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights]] ([[http://tinyurl.com/y7yfvh|as tinyurl]])
 * [[http://action.ffii.org/ipred2|FFII action page]]
 * [[http://www.lawsociety.org.uk/secure/file/157008/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/ipcriminalsanctions310806.pdf|Comments by the Law Society of Engeland and Wales]] [[http://tinyurl.com/y79cfk|(tinyurl)]]
 * [[http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw|Dutch Parliament]]
 * [[http://www.edri.org/edrigram/number4.9/ipcriminal|EDRI]]
 * [[http://www.fsfeurope.org/projects/ipred2/ipred2.en.html|FSF Europe]]
 * [[http://c-176-03.blogspot.com/2006/11/european-court-of-justice-crosses.html|European Court of Justice crosses the Rubicon]]
 * Reinier Bakels presentation for SANE: ISO Open Document Format [[attachment:RBB060517.odp]] PDF [[attachment:RBB060517.pdf]] !PowerPoint [[attachment:RBB060517.ppt]] !OpenOffice.org [[attachment:RBB060517.sxi]]
 * [[http://www.ipred.org/nl|NL: Gevangenisstraf voor octrooiinbreuk]]
 * EU News [[http://press.jrc.it/NewsBrief/alertedition/en/JudicialCooperationCriminal.html|Criminal law]] | [[http://press.jrc.it/NewsBrief/alertedition/en/EuropeanConstitution.html|Constitution]]
 * [[http://ue.eu.int/uedocs/cms_data/docs/2004/6/21/Councils%20rules%20of%20procedure.pdf|Council rules of procedure]]
-Line 19:
+Line 143:
+----------
-Line 20:
+Line 145:
-Proposal for a
EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
on criminal measures aimed at ensuring the enforcement of intellectual property rights
+== ipred.org ==
In 2004 the Council and European Parliament adopted an Intellectual Property Rights Enforcement Directive (IPRED). To make fast adoption possible (before 10 new members joined the EU), criminal penalties were taken out.
-Line 24:
+Line 148:
-Proposal for a
COUNCIL FRAMEWORK DECISION
to strengthen the criminal law framework to combat intellectual property offences
+The criminal measures are back in the ''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'' (DCMEIPR ?). This new directive is often called IPRED 2.
-Line 28:
+Line 150:
-== No Justification ==

The proposals lack proper justification, the justification given is just one A4 page long. There is no need for the proposals, piracy is already prohibited in European countries. In some cases, penalties go up more than a 100 times. There is no indication at all that this is needed. 

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. 

== Neutrality of police investigation ==

Right-holders can help the police to draw conclusions. There goes neutrality of police investigation. (framework art 4, see also the explanatory memorandum on this article)

[http://www.ipred.org/en More]

------------------------------------




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

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

-----------------------------------

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

----------------------------------

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