Adding criminal sanctions to a legal minefield
Brussels, Nov 22th 2005 -- European Parlement has driven a hearing on the proposed directive on criminal measures aimed at the prosecution of product piracy and counterfeit, especially in the context of organised crime. Because of careless drafting the text, known as IPRED 2 (2nd Intellectual Property Rights Enforcement Directive) has severe flaws because it avoids clear definitions. FFII has pointed out some crucial dangers, specially concerning the criminalisation of daily business with patents and trademarks in such a "carpet-bombing lawmaking".
Report from the EP hearing on IPRED2 directive
In a first hearing on the IPRED2 directive and framework, many representatives spoke out against criminal sanctions on patent violations, or voiced concerns over them. Among them were BEUC, BSA, FFII, Sun, FSFE, British Telecom, and a representative from the pharmaceutical industry. The FFII pointed out it is impossible not to violate software patents, the IPRED 2 directive threatens Europe's software developers with imprisonment. The International Trademark Association presented a position paper in which they recommend to limit the scope to trademark counterfeiting and copyright piracy. The International Federation of the Phonographic Industry (IFPI) representative was among those most in favour of the directive, she asked for even stronger enforcement measures, like access to retained telecommunication data. The FSFE commented that the directive will add unnecessary risks and costs to software development in general and could stifle some free software development models.
The rapporteur On. Nicola Zingaretti, MEP, said the Juri commission will meet on the subject next week (see item 5 on JURI agenda for 29/11/2005 meeting)
FFII's position presented with the following statement at the hearing
- IPRED2: Adding criminal sanctions to a legal minefield In order to fight piracy, IPRED 2 makes all commercial violations of intellectual property rights" a crime. All commercial violations. But not all commercial violations of these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations that are not pirates is very serious. The principal issue is that IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates. - Take copyright. The question whether a work is an independent recreation or a violation of copyright is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium. With IPRED 2, any journalist can be prosecuted that makes a citation that is a bit too long. - Take Patent law. Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? He can go to jail, together with Europe's software developers, since IPRED 2 criminalises companies that are not pirates. Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. Furthermore, IPRED 1 is being implemented right now. At the moment no assessment can be made whether an instrument is missing. Yet prison sentences go up more than a 100 times in some cases. IPRED 2 is excessive and distorts carefully balanced national procedural law systems. For the sake of protection of carefully balanced national procedural law systems, subsidiarity and legal security, in order to keep Europe's software developers out of jail, we ask you to reject these superfluous and detrimental proposals. The European Parliament rejected the software patents directive. We heartily thank you for that. The IPRED 2 directive and framework should go the same way. Thank you.
- Ante Wessels, FFII's representative at this hearing, adds:
- Revelation of documents by an investigating journalist can violate copyright laws and so become a crime with very severe sanctions. This would then allow the prosecution of journalists as criminals. This threat endangers the freedom of the press. Ironically, the European Publishers Council presented a position paper which suggests to raise the maximum custodial sentence to 10 years. Rather amazing to see so many CEOs of leading European newspapers endangering their own freedom.
- Thomas Warawis (FFII-AT) comments:
- Because of the situation in patent, and trademark law, the outcome of litigation in the IT field is highly unpredictable. This was confirmed by international experts in a study for the Commission. In these sectors the prosecution of infringement of not foreseeable rights is illegal. There is no doubt that product piracy, counterfeit and money laundering is crime. FFII also would support improvements in copy- and author rights, but they have to carry forward the beneficial balance, that is achieved between the immaterial rights of producers, commercial- and end customers.
- Ante Wessels - +31 6 100 99 063 ante at ffii.org (Dutch/English)
- André Rebentisch - +49 541 803113 arebenti at web.de (German/English)
- Thomas Warawis - +43 664 5204001 thomas.warwaris at liwest.at (German/English)
- Gérald Sédrati-Dinet - +33 6 60 56 36 45 - gibus at ffii.fr (French/English)