Carte Blanche criminal law a threat to innovation

Strasbourg, 24 April 2007 – Tomorrow, 25 April, the European Parliament will vote on the first Community criminal law ever, the Criminal Measures IP directive. Last week a coalition representing European consumers, innovators and library associations has called on Members of the Parliament to amend the Criminal Measures IP directive. MEPs of the Liberal Group (ALDE) now propose to keep essential concepts like “commercial scale” undefined. Critics warn this will create carte blanche criminal law, a major threat to legal certainty and innovation.

An alliance of BEUC, EFF, FFII and EBLIDA, representing European consumers, innovators and library associations, strongly oppose certain provisions of the proposed directive on the enforcement of Intellectual Property Rights. The proposal is badly drafted. It will antagonize millions of young Europeans. The provisions defining criminal offences are so vague as to amount to a threat to civil rights.

The associations ask to limit the scope of the directive to clear cases of copyright piracy and trademark counterfeiting, and to provide legal certainty by adopting precise definitions of “on a commercial scale” and “intentional infringement”. Furthermore, they ask Parliament to avoid creating an unprecedented scope of secondary liability for Internet intermediaries, ICTs, software vendors and a range of legitimate business activity.

In a new development, the Liberal Group (ALDE) has proposed to keep “commercial scale” and “intentional infringement” undefined. FFII analyst Ante Wessels: “This is a horrible response. How will the courts deal with the uncertainty? Ultimately the European Court of Justice (ECJ) may decide, but what will be its decision? This way the Community would make criminal law without any certainty about the final outcome.”

He adds: “It is impossible to assess the impact on consumers, the industry and innovation. Could we please get our feet back on the ground? This Community criminal law exercise is running out of hand.”

Background Information

The Commission introduced the Criminal Measures IP directive, also known as IPRED2 or Criminal Enforcement directive, as a way to combat organised crime and terrorism. It would do so by turning all intentional, commercial scale infringements of all IP rights into a criminal offence. The problem with this logic is that very few infringements have anything to do whatsoever with criminal activities, let alone with terrorism.

Patents are regularly infringed by companies if they think they will not hold up in court. Trademark confusion happens all the time. An author plagiarising someone else’s story and selling it is not a criminal; that is a civil offence. Design rights, utility models and database rights are not substantially examined, which means they are often invalid. In other words, the directive is using a cannon to fire at a mosquito.

The EP’s rapporteur, On. Nicola Zingaretti, has proposed several improvements to the Commission’s text. Some remaining issues are the inclusion of the unexamined design and database rights in the scope, and a definition of “commercial scale” which may cover more than intended.

The emotional arguments that the directive is needed to combat counterfeit medicines and child labour are also dubious. Producing and selling counterfeit medicines is already a criminal act in all member states, regardless of whether IPRs are infringed in the process. The problem of child labour has in itself nothing to do with “intellectual property” either, and many subcontractors of well-known global companies have been exposed as making use of child labour in the past.

Using “the children” and “the terrorists” as an argument to pass a directive which has inherently very little to do with either is questionable, especially if it has such far reaching consequences. At the same time, it seems it is often forgotten that infringements not covered by this directive can still be prosecuted under civil law. Cases not covered by this directive are not by definition legal or non-infringing. They are merely cases where the tax payer should not have to pay for the enforcement of a private party’s interests.



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About FFII

The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.

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