Patents out, business conflicts still criminalised

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 the original provision which did allow that practice is 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.”

Background Information

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.

Contact Information

Ante Wessels
FFII analyst
+31-6-100 99 063
ante at

Jonas Maebe
FFII analyst
jmaebe at

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
bhenrion at

About the FFII

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.

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