Intellectual Property Rights Enforcement Directive 2

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.

IPRED 2

No solution for piracy

Introduction

In order to fight piracy, IPRED 2 makes all commercial violations of “intellectual property" rights a crime. All commercial violations. But not all commercial violations of “intellectual property” rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations not being pirates is very serious. The principal issue with IPRED 2 is that it is confusing piracy and commercial infringement. If fighting piracy is the objective, piracy and counterfeiting are to be criminalised. And not every commercial violation of “intellectual property” rights.

Take copyright. The question whether something is an “independent recreation” or a “violation of copyright” is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium.

IPRED 2 covers 11 “intellectual property” rights. We have trade mark counterfeiting and copyright piracy. The other 9 “intellectual property” rights shouldn't be in IPRED 2.

Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. 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?

Prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems.

Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison?

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

COM(2005)276 final

2005/0127(COD)

2005/0128(CNS)

[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://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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