From halber@timsi.com.pl  Mon Sep 10 10:48:30 2001
From: halber@timsi.com.pl (Jozef Halbersztadt)
Date: Mon, 10 Sep 2001 11:48:30 +0200
Subject: [Patents] Once more on Euro-DMCA
References: <3B9BC7FA.5635.1F88D5@localhost>
Message-ID: <001401c139dd$c90c32a0$bb01a8c0@uprp.pl>

http://www.ivir.nl/publications/hugenholtz/opinion-EIPR.html

(...)
Since the Directive has little or nothing to offer in terms of legal
certainty or harmonisation (or anything else, for that matter), one
must question the solidity of its legal basis in the EC Treaty. Over
the past decade, we have all too easily accepted the EC's legislative
powers in the field of intellectual property. Where do these powers
originate? As all previous directives in the field of copyright and
neighbouring rights, the Copyright Directive is based on articles
47.2, 55 and 95 (ex articles 57.2, 66 and 100A) of the EC Treaty.
These are the same legal foundations that the Tobacco Advertising
Directive (Directive 98/43/EC) was built on. In a case brought before
the European Court of Justice, Germany has challenged that directive's
legal basis and requested its annulment, pursuant to article 230 (ex
173) of the Treaty. On October 5, 2000, the Court delivered its
judgment. The Court notes that the Directive does not not facilitate
the free movement of goods or the freedom of services, and does not
remove distortions to competition. In sum, the Directive lacks a
proper legal basis, and should be annulled.[8]

The European Court's decision raises the intriguing prospect of one or
more disgruntled Member States challenging the validity of the
Copyright Directive.[9] Wouldn't that be the perfect way of getting
rid of this monstrosity? I hereby offer my services to any Member
State pro bono.




