April 25, 2007

European Parliament Criminalises Businesses, Consumers, Innovators

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Strasbourg, 25 April 2007 — The European Parliament today accepted the IP Criminal Measures directive after its first reading in a vote of 374 to 278, and 17 abstentions. It left several unexamined rights in the scope, and threatens to criminalise consumers and incriminate ISPs. Recommendations from an alliance of libraries, consumers and innovators were not followed, although Parliament was clearly divided on several issues.

A summary of the adopted text follows:

  • Apart from copyright (piracy) and trademarks (counterfeiting), also the unexamined database and design rights are included in the scope, as well as trade names (which do not fall under Community Law). Patents and utility models (petty patents) are excluded;
  • A weak definition of “commercial scale” was adopted. It does not clearly protect consumers and the young generation;
  • Inciting an IPR infringement is criminalised. This introduces liabilities for software and service providers;
  • Abuse of the measures provided by this directive are punishable, “fair use”-like actions such as infringing for the purpose of criticism, research and reporting are removed from the scope, and the neutrality of the investigations should be safeguarded.

“Terrorists illegally copying and selling phone directories will probably not sleep very well tonight. Neither will spare parts makers who, according to Parliament, should risk criminal penalties if they infringe on a part’s design right. It is very strange that the rapporteur insisted on having these unexamined database and design rights included in the scope”, said Jonas Maebe, FFII analyst.

“Today, ‘inciting’ is only criminal in some member states, and in exceptional cases such as hate speech. Elevating IPRs to the same level is a scary development. The inciting clause is also reminiscent of the US ‘Induce Act’, which threatened to make MP3 players such as the iPod illegal”, Maebe added.

He continued: “On the positive side, Parliament did decide that abuse of these misguided measures has to be punishable, and that the neutrality of investigations should be safeguarded. It also explicitly mentioned several statutory exceptions to IPRs, where criminal measures should not be applied.”

“We are also thankful for the strong support our position received from the Greens/EFA and GUE/NGL groups, as well as from several Members of the EPP, PSE and ALDE groups. A number of Members from the EPP and PSE groups afterwards concurred that the directive did not get the time it deserved for discussion, and that many Members became aware of its dangers too late”, Maebe said.

The directive now goes to the Council for its first reading. Several Council members, such as the Dutch and UK governments, have already expressed serious concerns about the scope and nature of this directive. Maebe concluded: “We hope that they will take the joint recommendations of law experts and civil society into account more fully.”

Background information

The Commission introduced the Criminal Measures IP directive, also known as IPRED2 or Criminal Enforcement directive, as a way to combat organised crime and terrorism. It would do so by turning all intentional, commercial scale infringements of all IP rights into a criminal offence.

The problem with this logic is that very few infringements have anything to do whatsoever with criminal activities, let alone with terrorism. Furthermore, the TRIPs treaty already requires criminal measures against commercial scale copyright piracy and counterfeiting, and in most other cases civil law is more appropriate.

The directive is also controversial because it is the first time that the European Parliament is co-legislating criminal law in the EU to such an extent. This also means that individual governments lose their veto power when the directive will be treated in the Council.

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The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.