Patents out, business conflicts still criminalised

[Jonas Maebe <jonas.maebe@ugent.be>]

PRESS RELEASE -- [ Europe / Economy / ICT ]

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Patents out, business conflicts still criminalised
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Brussels, 28 November 2006 -- In today's vote on the "IPR Enforcement
Directive" (IPRED2, 2005/0127 (COD)), the European Parliament's Industry
Committee (ITRE) limited the directive's scope to copyright piracy and
trademark counterfeiting. The rapporteur, David Hammerstein MEP
(Greens/EFA), received backing from all groups for his amendments.

The FFII welcomes the reduced scope and other improvements, but notes
that business conflicts are still criminalised in some cases. These
issues would have been addressed by rejected amendments from MEPs
Dorette Corbey (PSE), Umberto Guidoni (GUE/NGL), Edith Mastenbroek (PSE)
and Patrizia Toia (ALDE).

Other significant amendments however mean that:

* The state cannot unilaterally start an infringement investigation. The
police cannot know about private licensing arrangements and even if
licenses are public, government bodies are sometimes confused by
unfamiliar concepts. In February 2006, a UK Trading Standards officer
wanted to prosecute a business for selling CDs of the free Firefox
browser.  Further, rights holders may choose to not enforce their own
rights.

* Rights holders may not participate in criminal investigations. The Max
Planck Institute for Intellectual Property, Competition and Tax Law
noted that this provision was fundamentally incompatible with a
democratic society.

The amended directive still allows some regular business conflicts to
fall under criminal law.  The directive defines "counterfeiting" to
include regular trademark/tradename conflicts between companies.
Copyright piracy remains undefined. The current text therefore still
does not comply with established fundamental principles of criminal law,
which requires precise and explicit descriptions for all individual
criminal offenses.

FFII analysts also note that this is the first directive that gives the
European Community power to define criminal law which is unrelated to
trade barriers in the Internal Market.  FFII president Pieter Hintjens
says "There has been very little support for this directive except from
the Commission, and we believe its real goal is to set a precedent
rather than catching pirates."


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Background Information
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An example of a business conflict over copyright which would be
criminalised by the current directive text is today's decided case of
the architect of Berlin's new main train station v. Deutsche Bahn AG.
Deutsche Bahn modified the plans for its train station, which the
architect considered an infringement on his copyright. Berlin's regional
court agreed.

The modifications to the plans were clearly an intentional infringement
on a commercial scale. However, that does not mean Deutsche Bahn is a
criminal organisation which, in the Commission's words from the preamble
of the directive, is "a serious threat to national economies and
governments."


UNICE (an association of national industry associations) lobbied against
Hammerstein's amendments, asking MEPs instead for an amendment that
would even have broadened the directive to make all infringements - even
on a personal scale - a criminal offense.  UNICE's lobbying did not succeed.


In the legislative procedure, the Civil Liberties Committee (LIBE) is
next to present its opinion and will probably vote around 11 December.
The Legal Affairs Committee (JURI), responsible for this directive, will
then vote on its repport around 20 December.  The EP's plenary session
will finalise the text shortly thereafter, after which it's the
Council's turn to handle the directive in its first reading.

Ironically, LIBE's draft report seems less concerned with civil
liberties than the ITRE report.  Also, the JURI draft opinion first
excludes and then again includes patents in the scope, probably by mistake.


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Links
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* FFII analysis of ITRE amendments and voting results
http://action.ffii.org/ipred2/ITRE_Tabled_Amendments

* FFII analyses of LIBE and JURI amendments, general IPRED2 information
http://action.ffii.org/ipred2

* Berlin Rail-Station Architect Wins Suit Against Deutsche Bahn
http://www.bloomberg.com/apps/news?pid=20601088&sid=a5gfABLl6v3E&refer=muse

* UK Trading Standards office wants to go after Firefox reseller
http://business.timesonline.co.uk/article/0,,9075-2051196,00.html

* Opinion of the Max Planck Institute for Intellectual Property,
 Competition and Tax Law on the directive
http://tinyurl.com/y7yfvh
(
http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf
)

* Opinion of the Law Society of England and Wales on the directive
http://tinyurl.com/y79cfk
(
http://www.lawsociety.org.uk/secure/file/157008/e:/teamsite-deployed/documents//templatedata/Internet%20Documents/Non-government%20proposals/Documents/ipcriminalsanctions310806.pdf
)

* Permanent link to this press release
http://press.ffii.org/Press_releases/Patents_out,_business_conflicts_still_criminalised

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

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

Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion@ffii.org
(French/English)


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About the FFII -- http://www.ffii.org
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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.