Final chance to get the IP Enforcement Directive right
The draft directive on the enforcement of intellectual property rights is now close to its final stages in the European Parliament. This is an important law that will have serious consequences for the development of the Information Society in Europe. It is vital that strong powers are provided to crack down on counterfeiters without affecting the rights of ordinary EU citizens.
Amendments from the Legal Affairs committee and discussion with the Council have led to several important improvements to aspects of the draft. But there are still some key issues that the Parliament must take into account in its debate at the February II plenary session to ensure the directive is an effective and proportionate piece of law:
Article 2: Most importantly, the scope of the directive must be limited to commercially significant infringement. This is close to the Commission's original proposal, and would ensure that the directive is widely supported by people of Europe of all ages. Amendments to widen the scope to all infringements of intellectual property rights would risk creating further scepticism about intellectual property law if there was abuse of the directive's strong provisions in cases of non-commercial infringement. This directive should be targeted at organised crime, not teenage file-sharers and their parents.
Article 2: Patents should also be excluded from the directive, as the Parliament's Legal Affairs Committee decided. Patent infringement claims are often based on highly nuanced technical discussions where it would be entirely out of proportion to apply the directive's sanctions and remedies. Small businesses would be particularly adversely affected by the threat of such actions.
Article 2: The scope needs to be drawn more tightly than the Council's proposed "any infringement of intellectual property rights". This loose definition could be interpreted quite differently across the EU. For example, in some member states, confidential information is considered an intellectual property right. Consequently, this Directive could be used to crack down on journalists and media who publish secret documents.
Article 8: protecting the identity of witnesses in infringement cases seems disproportionate when many member states do not allow such measures even in terrorism trials.
Article 9: the "right of information" must not be automatic. A court must be involved to weight the evidence of infringement and good-faith intent to bring a case first against the invasion of privacy required. Otherwise this power could be used by companies to track down whistleblowing employees, or hate groups to find out the name and address of the authors of web pages opposing their views. The Council's proposed recital 13(a) imposes a "commercial scale" requirement which should protect end-users acting in good faith. Nor should the directive impose heavy burdens on Internet Service Providers to monitor their users, as this could increase Internet costs, reduce takeup of Internet services, and hence damage the growth of the Information Society in Europe. ISP customers must be informed when their personal information has been handed over to a third party.
Article 20: criminal sanctions should not be required for infringements of intellectual property rights under this directive. Penal sanctions should not be introduced under the co-decision procedure, and are properly a matter for the member states. The Legal Affairs committee's amendment or the Council's deletion of this article would both remove criminal sanctions from the directive.
Article 21: similar restrictions regarding technical devices in recent US law have been abused for anti-competitive purposes (for example, to prevent the sale of cheap printer cartridges). The EU should not open up the same legal minefield here. Such a provision could also be abused to prevent consumers from protecting their privacy by disabling RFID "spy-chips" embedded in products. Because it is so difficult to draft language to prevent such side-effects, this entire Article should be deleted, as the Council has proposed.
It is vital that amendments implementing these points are passed in the Parliament's plenary vote. This will provide a strong and consistent legal regime across the EU that protects both right holders and citizens' interests. When the list of final amendments are available, we will be publishing an analysis of their effect and would be pleased to discuss these points further with MEPs and their staff.
The Draft EU Directive COM 2003/046 "on measures and procedures to ensure the enforcement of intellectual property rights" - the "IPR Enforcement Directive" - comes between the Copyright Directive 2001/29/EC (the "EUCD") and an upcoming EU Framework Decision on penal sanctions for infringements of intellectual property rights, which as of February 2004 is in the early stages of drafting in the European Commission's Justice and Home Affairs Directorate General. The preparatory process for this Directive - a Commission Greenbook (COM 1998 – 569; no longer available on the Internet) followed up by a public consultation procedure and a number of hearings in Brussels - centred around the notion of counterfeiting of trademark goods and product piracy. But the European Parliament's Legal Affairs Committee and the EU Member States both want to amend the Directive so that it could be used against everyday small-scale infringers of a large range of intellectual property rights, including patents, designs, utility models, trademarks, and plant variety rights.
The European Council, which has to agree with the European Parliament on the finished text, has in its Draft Common Position adopted the Parliament's proposals where they broaden the scope - namely the extension to infringements committed for private use and not causing any harm - but removed criminal sanctions and controls on "illegal technical devices". Both versions are under discussion in a series of trilogue meetings between the Parliament's rapporteur and shadow rapporteurs and the Council's Working Group on Intellectual Property.
See also the FIPR analysis by
Ross Anderson of the original draft directive from the European Commission.