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. 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 2006 the European Commission will propose a new directive (with most of the content of both 2005 proposals).

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. In general, the directive should be limited to rights of which it is proven that civil protection is not enough.

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.

Rejection

There are good grounds for rejection. See [http://www.ipred.org/Hilty Hilty] and [http://www.ffii.org/~ante/FFII-ipred051122.pdf FFII] If the directive does not meet the requirements menioned above (scope and elements of a crime), the directive should surely be rejected.

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