Differences between revisions 62 and 255 (spanning 193 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

-  ⇤ ← Revision 62 as of 2006-05-05 10:31:46 → 
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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]]]
-Line 9:
+Line 11:
-= Intellectual Property Rights Enforcement Directive 2 =
+------
-Line 11:
+Line 13:
-'''Makes violations of "intellectual property rights", such as patents, a crime. May make adolescents that share files organised criminals.'''
+= 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.''
-Line 13:
+Line 16:
-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. These criminal penalties came back in 2005 in 2 new European Commission proposals. Following a European Court decision in an other case, they were retracted, [http://wiki.ffii.org/Com051123En for formal reasons.] 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 a new directive.]
+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.
-Line 15:
+Line 18:
-Minister Donner (NL) [http://wiki.ffii.org/IpredDonner060428En was not pleased.]
+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.
-Line 17:
+Line 20:
-[http://register.consilium.europa.eu/pdf/en/06/st08/st08866.en06.pdf The new text] (Change "en" twice in the link for translations)
+----------
-Line 19:
+Line 22:
-== Main points ==
+=== 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.
-Line 21:
+Line 28:
+[[http://www.heise.de/newsticker/meldung/100175|Heise has the story.]]
-Line 22:
+Line 30:
-== Scope ==
+[[http://action.ffii.org/ipred2/Mistake_in_EP_provisional_consolidated_text_Criminal_Measures_IP_directive|The FFII has the analysis]]
-Line 24:
+Line 32:
-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. In general, the directive should be limited to rights of which it is proven
that civil protection is not enough.
+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.
-Line 27:
+Line 34:
-No criminalising of inciting and abetting beyond general rules that exist in some countries making it a crime to incite to a crime
+[[http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:074E:0527:0533:EN:PDF|The Official Journal of the European Union]]
-Line 29:
+Line 36:
-== Elements of a crime ==
+=== Coalition report on the European Parliament vote ===
Wednesday 25 April 2005. The European Parliament voted on the Criminal Measures IP directive.
-Line 31:
+Line 39:
-Reto M. Hilty, Managing Director, Max Planck Institute for IP, Professor of Law [http://www.ipred.org/Hilty said:]
+[[http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses,_Consumers,_Innovators|FFII press release]]
-Line 33:
+Line 41:
-"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:
+[[http://action.ffii.org/ipred2/Report_on_EP_vote|FFII/BEUC/EBLIDA/EFF Coalition report on the vote]]
-Line 35:
+Line 43:
- - 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.)
+=== Carte Blanche Criminal Law ===
Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive.
-Line 37:
+Line 46:
- - Commercial activity with an intention to earn a profit
+Take action: [[http://www.copycrime.org|www.copycrime.org]]
-Line 39:
+Line 48:
- - Potential to cause considerable damage
+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).
-Line 41:
+Line 50:
- - Intent or contingent intent (dolus eventualis)"
+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.
-Line 43:
+Line 52:
-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.
+[[http://www.ipred.org/april2007|read more]]
-Line 45:
+Line 54:
+=== 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?
-Line 46:
+Line 57:
-== Rejection ==
+[[http://www.ipred.org/legalaffairs07|read more]]
-Line 48:
+Line 59:
-There are good grounds for rejection. The only valid ground for the directive is that non-harmonisation gives member states [http://wiki.ffii.org/IpredDonner060428En a competitive advantage.] The Commission does not even try to make that case. See also [http://www.ipred.org/Hilty Hilty] and [http://www.ffii.org/~ante/FFII-ipred051122.pdf FFII] If the directive does not meet the requirements mentioned above (scope and elements of a crime), the directive should surely be rejected.
+=== The Prosecution Paradise Directive ===
A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls.
-Line 50:
+Line 62:
+[[http://www.ipred.org/prosecutionparadise|read more]]
-Line 51:
+Line 64:
+=== 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]].
-Line 52:
+Line 68:
-== == ==
+[[http://action.ffii.org/ipred2/JURI_Tabled_Amendments|The proposal was rejected.]]
-Line 54:
+Line 70:
+----------
 <<BR>>
-Line 55:
+Line 73:
-[http://www.ipred.org/2005 the 2005 proposals]
+= 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.''
-Line 57:
+Line 76:
-: COM(2005)276 final / 2005/0127(COD) / 2005/0128(CNS)
+=== 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.
-Line 59:
+Line 79:
+=== 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.
-Line 60:
+Line 82:
-[http://www.ipred.org/Hilty Hilty:] 4 basic elements
+=== 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.
-Line 62:
+Line 85:
-[http://wiki.ffii.org/Ipred2GovLtrsEn FFII: Call on the 25 Governments to remove criminal sanctions in case of patent infringement]
+=== 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?
-Line 64:
+Line 88:
-[http://wiki.ffii.org/JuriHearing060131En Hearing 31st Jan. 2006]
+=== 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.
-Line 66:
+Line 91:
-[http://www.ffii.org/~ante/FFII-ipred051127.pdf FFII letter Nov 27th]
+----------
-Line 68:
+Line 93:
-[http://wiki.ffii.org/IpredEp051122En European Parliament hearing 22 November 2005]
+== Conclusion and analysis ==
The directive has to be rejected:
-Line 70:
+Line 96:
-[http://www.ipred.org/nl NL: Gevangenisstraf voor octrooiinbreuk]
+ * 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.
-Line 72:
+Line 100:
-[http://wiki.ffii.org/Ipred2En FFII]
+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.
-Line 74:
+Line 102:
-[http://plone.ffii.org/Members/coordinator/FFII%20UK%20IPRED2%20consultation.pdf/download FFIII-UK]
+For conclusion and analysis see our [[http:analysis|analysis page]].
-Line 76:
+Line 104:
-[http://www.fsfeurope.org/projects/ipred2/ipred2.en.html FSFE]
+----------
-Line 78:
+Line 106:
+== 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
-Line 79:
+Line 109:
+COM(2006)0168
-Line 80:
+Line 111:
-[http://tinyurl.com/9djqm EU docs]
+C6‑0233/2005
-Line 82:
+Line 113:
-[http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf Commission proposal]
+/0127(COD)
-Line 84:
+Line 115:
+ * [[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 85:
+Line 118:
-[http://www.aippi.org/reports/resolutions/Q169_E.pdf AIPPI paper]
+ * [[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 87:
+Line 128:
------------------------------------
+== 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 89:
+Line 143:
-[http://www.ipred.org/ipred1 IPRED 1] (2004)
+----------
-Line 91:
+Line 145:
-----------------------------------
+== 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 93:
+Line 148:
+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 94:
+Line 150:
-[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]

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