Proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights

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The European Union (EU) proposal for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights (2005/0127/COD) was a proposal from the European Commission for a directive aimed "to supplement Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (Civil enforcement)" (Source: Justification for the proposal, COM(2005) 276 final, July 12, 2005). The directive was proposed on July 12, 2005 by the Commission of the European Communities.

Contents

Being the second directive on the enforcement of "intellectual property rights", it is commonly called IPRED2 (Second Intellectual Property Rights Enforcement Directive). The first directive on the enforcement of Intellectual property rights, Directive 2004/48/EC deals with civil enforcement of intellectual property rights ("IPRED1"). IPRED1 was hastily passed before the Fifth Enlargement of the European Union of May 1, 2004 and did originally include criminal sanctions provisions, but this rather controversial part was omitted in order to be able to meet the deadline of May 1, 2004.

As announced in Official Journal C 252 of 18 September 2010 [1] the European Commission decided to withdraw the proposal for a directive. Criminal sanctions for enforcement of intellectual property rights are therefore not currently formally proposed, even if it is part of the EU acquis since the Lisbon Treaty.

Subject matter

This proposed directive incriminates infringements of intellectual property rights. It deals with intentional infringements on a commercial scale or aiding, abetting or inciting to the infringements.

Community IP Rights

The proposed directive applies to "such intellectual property rights as are provided for in Community legislation and/or national legislation in the Member States". No definition is provided in the original draft [2] and in that form, the Directive would apply to any intellectual property right. Subsequent readings of the Directive have included clarifications. Examples of such expressly included rights are sui generis rights of database makers or trademark rights. [3]

Patents

The Directive, in its first draft, includes patent violation, traditionally a civil issue. This would possibly have far-reaching consequences for the EU economy as the risk of criminal prosecution for violating patents when new products or new functions are included is great. [4] Moreover, traditionally, a large majority of all patent disputes are settled out of court before civil infringement disputes continue. The bill also includes a provision which would allow intellectual property holders to assist the police in an investigation, which cedes great power from the state to a patent-holder to threaten rivals with imprisonment, rather than a civil suit alone. [5]

The Parliament has, in subsequent reading, excluded patents from the scope of the Directive.

Consumers

The Directive applies to willful, commercial or intentional violations of trademark or copyright laws. [6] An amendment that would have limited the directive to commercial activity done with the intent to earn a profit was rejected. Instead, consumers will be criminally liable if their behavior is not for personal and not for profits purposes and was done for the purpose of obtaining an economic advantage.

Criticism

According to some, IPRED2 does not seem to be a particularly well drafted Directive. [5] [7] [8] The number of amendments passed and adopted in subsequent readings is unusual, as is evident from the drafting process. [9] The definitions, usually contained in the preamble or the beginning articles, were missing until subsequent readings. Originally about commercial piracy and counterfeit goods only, in its present form it includes any violation of Intellectual Property rights. [6]

The criticism voiced by EFF, [10] FFII, [11] Law Society of England and Wales, [12] the Dutch Parliament, [13] and others includes:

The Electronic Frontier Foundation has pointed out that criminal law is poorly suited for regulation of intellectual property law and that IPRED2 presents a risk to industry and innovation. [10] [16]

According to the Foundation for a Free Information Infrastructure (FFII), it is impossible not to violate software patents, and the IPRED 2 directive threatens most of Europe's software developers with imprisonment. [17]

In July 2006, the Dutch parliament wrote a letter to EU Commissioner Frattini with a thorough legal analysis of the proposed directive, concluding that the subject-matter of the proposed directive definitely falls outside the European Community’s competence (as defined in the EU treaties). [18]

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Florian Müller is an app developer and an intellectual property activist. He consulted for Microsoft and writes the FOSSPatents blog about patent and copyright issues. From 1985 to 1998, he was a computer magazine writer and consultant for companies, helping with collaborations between software companies. In 2004 he founded the NoSoftwarePatents campaign and in 2007 he provided some consultancy in relation to football policy.

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The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by national governments of different forms of intellectual property (IP) as applied to nationals of other WTO member nations. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO.

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References

  1. ↑ "EUR-Lex - Official Journal of the European Union".
  2. ↑ "EUR-Lex - 52005PC0276(01) - EN - EUR-Lex".
  3. ↑ "Ipred2/JURI Tabled Amendments - FFII". Archived from the original on 2009-04-10. Retrieved 2007-04-24.
  4. ↑ "IPRED2 universally unloved / Blog / Gerloff / Fellows / The Fellowship - Fellowship of FSFE". Archived from the original on 2007-09-27. Retrieved 2007-04-24.
  5. 1 2 "The Second IPR Enforcement Directive".
  6. 1 2 Article 1
  7. ↑ "FSFE - IPRED2 - the second "Intellectual Property Rights" Enforcement Directive".
  8. ↑ "IPRED2 workgroup - Action groups". Archived from the original on 2011-10-25. Retrieved 2007-04-24.
  9. ↑ "Procedure File: 2005/0127(COD) | Legislative Observatory | European Parliament". oeil.secure.europarl.europa.eu.
  10. 1 2 "Deeplinks Archives".
  11. 1 2 3 "Archived copy" (PDF). Archived from the original (PDF) on 2007-04-26. Retrieved 2007-04-24.{{cite web}}: CS1 maint: archived copy as title (link)
  12. 1 2 "Archived copy" (PDF). Archived from the original (PDF) on 2007-01-06. Retrieved 2007-04-24.{{cite web}}: CS1 maint: archived copy as title (link)
  13. ↑ "EU IP Enforcement Directive Questioned on Procedure". 11 July 2006.
  14. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 2006-12-22. Retrieved 2007-04-24.{{cite web}}: CS1 maint: archived copy as title (link)
  15. ↑ "WTO | intellectual property (TRIPS) - agreement text - contents".
  16. ↑ "Deeplinks Archives".
  17. ↑ Unknown authors, EU Commission proposes to criminalise European software industry, Cooperative Web Editing System (wiki) at FFII. Consulted on February 13, 2007.
  18. ↑ Monika Ermert, EU IP Enforcement Directive Questioned On Procedure, Intellectual Property Watch, July 11, 2006
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