Carte Blanche criminal law a threat to innovation

PRESS RELEASE -- [ Europe / Economy / Innovation ]

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Carte Blanche criminal law a threat to innovation
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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) now proposes to keep
"commercial scale" and "intentional infringement" undefined. FFII
analist Ante Wessels: "This is a horrible proposal. 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."


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Background information
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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 is 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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Links
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* The Coalition letter to MEPs
http://action.ffii.org/ipred2/IPRED_2-Amendments_supported_by_coalition_of_libraries_consumers_and_innovators

* The Coalition compromise amendments (pdf and doc)
http://action.ffii.org/ipred2/FFII_Analysis?action=AttachFile&do=get&target=CompromiseAmendments_FFII_EFF_EBLIDA_BEUC-2.pdf
http://action.ffii.org/ipred2/FFII_Analysis?action=AttachFile&do=get&target=CompromiseAmendments_FFII_EFF_EBLIDA_BEUC-2.doc

* FFII analysis of the tabled amendments
http://action.ffii.org/ipred2/Plenary1_Tabled_Amendments

* ipred.org on Carte Blanche Criminal Law
http://www.ipred.org/

* UK Government position on the tabled amendments
http://action.ffii.org/ipred2/UK_Government_Advice_for_Plenary1

* EFF's Copycrime.eu
http://www.copycrime.eu/

* Permanent link to this press release
http://press.ffii.org/Press_releases/Carte_Blanche_criminal_law_a_threat_to_innovation


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

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

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

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