February 26, 2007

Zingaretti MEP stops colleagues from criminalising themselves

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Brussels, 26 February 2007 — The European Parliament’s Legal Affairs Committee (JURI) vote on the “IPR Enforcement Directive” (IPRED2), originally scheduled for tomorrow, was postponed today for the third time. With this action the European Parliament’s rapporteur, Nicola Zingaretti, sends a strong political signal to the Commission to withdraw or rewrite its proposal. The delay may also provide IP lawyers and MEPs Toine Manders and Klaus-Heiner Lehne the necessary time to clean up their websites before they legislate themselves into jail.

The FFII applauds Mr. Zingaretti’s resolute decision to postpone the vote. Previous EP President Joseph Borrell said in his farewell speech to the House, referring to the failed software patents directive, that the EP is not a paper tiger and will reject certain proposals it deems inappropriate. Mr. Zingaretti is showing that less drastic measures can be used as well to send the message to the Commission that doing business is not a crime in the EU.

The FFII has learned that one of Mr. Zingaretti’s concerns is that further weakening the definition of “commercial scale”, or even outright removing that requirement from the directive, would hit consumers. Jonas Maebe, FFII analyst, said: “We believe that a definition of commercial scale in terms of intent to earn a profit is indispensable for fixing this directive, although it is obviously not enough in itself. For one, it does not help businesses threatened by for example a troll holding a shaky design right.”

The fact that regular citizens can easily criminalise themselves if the directive were to be approved without significant changes, is demonstrated by MEPs Toine Manders and Klaus-Heiner Lehne, both of whom are lawyers specialised in intellectual property law. The websites of both Members contain copyright infringing images, and in case of Manders’ site there is also a count of trademark infringement. Manders previously tabled an amendment which could consequently turn all visitors of his website into “dealers of stolen goods”.

“Only extremists would claim that both MEPs are criminals merely because their websites contain a few infringing images. Lehne, Nicole Fontaine and Janelly Fourtou, supported by Manders, however tabled amendments which would equate this with someone selling counterfeit watches or DVDs. And your nephew, who put a couple of Pokémon(tm) pictures on his website, would also be in the same boat”, Maebe added. “But if even staunch, professional supporters of IPRs make a mistake every now and then, where does that leave the rest of us?”

The FFII has created two fliers illustrating how the MEPs’ websites infringe, and pointing out some of the gravest shortcomings of the directive as it currently stands:

The next possible date for adoption of the JURI opinion is 19 or 20 March 2007.

Background Information

Q: Is the FFII itself not infringing on various copyrights by reproducing these images and website impressions without permission?
A: The FFII believes these reproductions are covered by the copyright law exemption which allows citing a copyrighted work for the purpose of criticism or education. This question however illustrates the potential dangers of this directive for free speech and journalism, as the criminal measures it lays down could be used to harass critics.

Q: Would the above infringements still be of a criminal nature without the amendments of Lehne, Fontaine and Fourtou, which propose to scrap the “commercial scale” requirement?
A: This depends on which other amendments are approved, and even then it is not always clear. JURI amendments which require that an infringement is carried out with the intent to earn a (financial) profit would classify these infringements as civil rather than criminal cases. The effects of amendments which merely mention gaining a “direct or indirect commercial/economic advantage” are less clear, since by not paying for the rights to those images both MEPs may be considered to gain an economic advantage (just like someone who downloads music for free without permission rather than paying for it).

Links

Contact information

Ante Wessels
FFII analyst
+31-6-100 99 063
ante at ffii.org
(Dutch/English)

Jonas Maebe
FFII analyst
jmaebe at ffii.org
(Dutch/English)

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
bhenrion at ffii.org
(French/English)

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.