EP Member: confused consumers are dealers of stolen goods

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

PRESS RELEASE -- [ Europe / Economy / Consumers / IPR ]

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EP Member: confused consumers are dealers of stolen goods
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Brussels, 18 December 2006 -- Dutch European Parliament Member Toine
Manders has tabled an amendment "to ensure that any purchase of goods
infringing an intellectual property right is considered as fencing" to
the IPR Enforcement Directive in the Legal Affairs Committee (JURI).
With cases like SanDisk's allegedly patent-infringing MP3 player, the
perfume "La Valeur" infringing on "Trésor"-related trademarks, Denda's
phone directory infringing on KPN's database rights, ... consumers are
advised to ask for a "Get Out of Jail Free" card with their next purchase.

Manders justifies his amendment by saying that "If consumers buy goods
of which they could know that it's a clear violation of IPR, it should
be considered as fencing." It is however unclear how they are supposed
to know this. Jonas Maebe, FFII Analyst, comments: "Unfortunately, with
the European Commission and the JURI rapporteur pushing for putting CEOs
in jail because their company infringed on a substantially unexamined
design right, this amendment seems like a logical extension rather than
the extremism it really is."

The original Commission proposal has been severely lambasted by IPR
specialists. "We would question its wisdom and the extent to which it
will work in practice," wrote the Law Society of England and Wales. The
Chartered Institute of Patent Attorneys is very concerned that including
design rights and other often-contested IPRs "would result in
significant chilling of competition". The Max Planck Institute even
noted that portions are "incompatible with the fundamental structure of
a democratic society."

Maebe adds "It is a public secret that the main goal of this proposal is
to extend the EU competence on criminal law making. We understand that
for this reason many pro-EU MEPs are reluctant to reject this directive,
even if they strongly object to the balderdash presented by the
Commission. However, if the EU wants the competence to legislate
criminal law, it has to demonstrate that it's not incompetent at doing so."

"The amateurish Commission proposal and amendments like the above cast
serious doubts on this. And although the EP's Industry Committee has
shown to a certain extent that it is technically possible for the
European Parliament to mend the directive, saying 'No' to this criminal
law pollution would be much more appropriate, like with the software
patents directive. The Commission created a mess, but Parliament is not
its maid", he concludes.


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Background Information
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* The JURI Committee will discuss the tabled amendments on 20 December
2006. Their vote is expected to be near the end of January 2007.

* Some other amendments which raise concerns for consumers are 64
(Lehne) and 65 (Bowles). These amendments propose to scrap "commercial
scale" from the conditions required for an infringement to be treated as
a criminal rather than a civil offence. In Belgium and a number of other
member states this would for example mean that copying a song text in a
letter to a friend would become a criminal offence.

* The full text of Manders' amendment:

Amendment 83
Article 4, paragraph 2a (new)

"2a. Member States shall take the necessary measures to ensure that any
purchase of goods infringing an intellectual property right is
considered as fencing."

Justification: If consumers buy goods of which they could know that it’s
a clear violation of IPR, it should be considered as fencing.


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Links
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* Amendments tabled in the JURI Committee (Manders' amendment is 83):
http://www.europarl.eu.int/registre/commissions/juri/amendments/2006/382372/JURI_AM(2006)382372_XM.doc

* SanDisk faces MP3 licence dispute
http://news.bbc.co.uk/1/hi/technology/5312696.stm

* L'Oreal S.A. et al v. Bellure NV et al (perfume trademarks)
http://www.bailii.org/ew/cases/EWHC/Ch/2006/2355.html

* KPN v. Denda and others (phone directory database rights)
http://www.ivir.nl/publications/hugenholtz/fordham2001.html#verwijzing28

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

( or: http://tinyurl.com/y79cfk ;)

* Opinion of the Chartered Institute of Patent Attorneys:
http://www.cipa.org.uk/download_files/preliminary_Proposed_Enforcement.pdf

* Opinion Max Planck Institute for Intellectual Property, Competition
and Tax Law:
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

( or: http://tinyurl.com/y7yfvh ;)

* FFII information and analysis page on the IPR Enforcement Directive
http://action.ffii.org/ipred2

* Permanent Link to this press release
http://press.ffii.org/Press_releases/EP_Member%3A_confused_consumers_are_dealers_of_stolen_goods


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Contact Information
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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 (fixed)
+32-484-56 61 09 (mobile)
bhenrion at 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.