Sturm und Drang & IPRED 2
Two years ago the first Intellectual Property Rights Enforcement Directive (IPRED) was chaperoned through Europe quietly, too quietly, until being passed under the Irish Presidency in 2004. Initially mandating criminal sanctions for copyright infringement – a ‘bunker-buster’ deterrent for the pesky p2p fiends – the directive had to be stripped of this element on a technicality. Legislation containing criminal sanctions requires a legal basis in the third pillar procedure relating to police and judicial cooperation, whereas IPRED was initiated under a first pillar procedure.
Scarcely a month after the Directive having been passed EU officials were already declaring their intention to proceed with further legislation so as to resucitate the lost criminal sanctions, and the official announcement arrived in autumn of last year. Early drafts of IPRED 2 proposed criminal sanctions for all forms of IP infringement and immediately drew scathing criticism. Scarcely surprising when one considers patent litigation is becoming an ever more popular business model. As a result patent infringements have now been removed from IPRED’s criminal net which will now cover copyright ‘piracy’ and trademark infringement. Fortunately the directive has a long way to go yet, so further amendments can be expected.
Documents (Regularly Updated)
1. Here is the Amended Proposal from the Commission that makes the changes required by the European Court of Justice’s judgment of 13 September 2005 (Case C 176/03 Commission v Council). This is the document released in April of this year:
2. There is a Procedure page where you can track the progress of the directive; the next significant dates are at the European Parliament in late january and february:
(a) questioning the legal basis of the driective
(b) opposing the use of criminal sanctions in patent law and pointing out that such penalties already exist for serious copyright and trademark infringements
(c) criticizing the vagueness of the language regarding commerical scale
(d) doubting the practical effectiveness of criminal prosecutions where proving intent is key.
4. The Max Planck Institute in Munich, not exactly a hive of anti-proprietary activity, have also produced a highly critical analysis of the draft directive. In addition to echoing some of the remarks made by the Law Society –
– they question whether failure to harmonize with regard to sanctions could lead to a distortion in trade between member states (problem which a.95 is supposed to counter) and specifically differentiate the circumstances in Ip law from those relevant to criminal environmental law (where differeneces in regulation will give on firm cost advantages over another)
– that it is too soon even to assess the effects of the previous IPRED from 2004
– that harmonization is required anyway by A.61 of TRIPS and thus further steps are otiose
– that in practice criminal provisions are of marginal importance, even in countries where they are well developed (including wrt patent law) such as germany
– they remind that there is a countervailing public interest in intellectual property which means that not all benefits should be reserved to owners and not all violations punished by maximalist sanctions
– for criminal sanctions to be justified the violation must result in a product identical to that copied, made with a commercial purpose, and accompanied with intent.
These substantive provisions of the proposed instrument should be discussed on the basis
5. July 3, 2006: A letter from the two houses of the States-General in the Netherlands, challenging the legality of the Directive on the basis of having failed the tests of subsidiarity and proportionality.
6. 22 September 2006: Via Axel Horn’s blog, I came across the report of the (shadowy!) Article 36 committee report (PDF) on the draft directive here.
7. October 5/6 : A Council press release provides some interesting information, containing as it does a statement on the need for consideration of the need for criminal snactions and noting that such an analysis should be made within an evaluation of the effects of IPRED 1. In addition they state that such criminal snactions as are introduced should be within the:
“limitation of its scope to intellectual property rights harmonised in Community legislation, in line with the principles stated in the conclusions of the informal JHA meeting in Vienna on 13 and 14 January 2006.”
Presumably that would mean that patents are out.
8. 7 November 2006: You can find the Zingaretti report (PDF) (Committee on Legal Affairs) recommending the exclusion of patent matters from the scope of any criminal sanctions here. On the other hand it is proposed to extend the scope to Directive 98/84/EC on Conditional Access. In Article 2 a series of defintions are added so as to clarify the scope of the rights covered and the meaning of ‘commercial scale’, whilst individual users (presumably p2p users) are expressly excluded:
“any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage; this would normally exclude acts carried out by private users for personal and non-commercial purposes;”
of a limitation of its scope to intellectual property rights harmonised in Community
legislation, in line with the principles stated in the conclusions of the informal JHA
meeting in Vienna on 13 and 14 January 2006.
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