Brussels, 19 March 2007 — The upcoming vote on Tuesday 20 March on the Criminal Sanctions Directive in the EP’s Legal Affairs Committee (JURI) is premature and non-transparent. Despite three delays, the issue of criminalising all infringements, even those on unexamined rights, remains unsolved. In hastily drafted last-minute oral amendments by the rapporteur, On. Nicola Zingaretti, even “acceptance” of infringements is now criminalised. The Criminal Sanctions Rapporteur fails to protect the European industry and citizens.
In a letter to the Members of the European Parliament the FFII states that the Legal Affairs Committee draft report for the Criminal Measures IPR Directive is, despite several delays, not ready for adoption. Virtually all industries have asked to limit the directive to clear cases of piracy, but rapporteur On. Nicola Zingaretti has not tabled any amendments to this effect.
The FFII therefore strongly urges him to reconsider his report. FFII analyst Ante Wessels comments: “From an industry point of view the situation is clear: fight piracy, but do not criminalise legitimate commercial enterprises. The industry and the academic world agree on this.”
Furthermore, a broad concept of secondary liability is introduced by adding the word “acceptance” to the definition of intentional infringement. This even surpasses the much criticised Commission proposal to criminalise “inciting, abetting and aiding” infringements. If adopted, this could result in software providers being held liable if their software does not actively prevent copyright and database right violations by its users.
Wessels adds “Unfortunately, one strong pressure group is quite happy with this turn of events: Hollywood and the music industry. They want to equate the younger music-downloading generation with industrial pirates, and let the police take over prosecutions which hurt their public image. They push for the weakest possible definitions, in order to criminalise end users and hold software providers liable. Hollywood has been calling Members of the Legal Affairs Committee daily.”
Pieter Hintjens, FFII president, says: “The proposed text is an undetermined and shoddy draft which pleases only one party, but will harm many others. The rapporteur failed to choose for the European industry, and his last minute changes are making the situation even worse. He had a year to fix this text but seems to be unable to work out a sensible compromise. This sharply contrasts with the Industry Committee’s rapporteur David Hammerstein, who managed to obtain support from all political groups for a fairly balanced text.”
Apart from the FFII, at least the following stakeholders have asked to limit the directive to clear cases of piracy: The Max Planck Institute for Intellectual Property, Competition and Tax Law, the Chartered Institute of Patent Attorneys, the Law Society of England and Wales, the Austrian Federal Chamber of Labour, EGA (generic medicins), EICTA (ICT), ECIS (ICT), ECTA (trademark association), FIPR (information policy research), BEUC (consumers), LACA (libraries) and ETNO (telecom).
The Max Planck Institute for IP, Competition and Tax Law (Germany), and the Chartered Institute of Patent Attorneys (UK) have given detailed recommendations on how to limit the directive to clear cases of piracy. The draft report does not implement any of these recommendations.
The draft voting list published by the JURI Secretariat moreover contains several serious errors. On the one hand it allows for contradicting amendments to be adopted, and on the other hand several non-conflicting amendments render each other unvotable. For example, a definition which limits criminalisation of trademark infringement to counterfeiting (Am 70) supposedly conflicts with exempting parallel importation from criminal prosecution (Am 71).
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About the FFII
The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.