EU IP enforcement directive advances

-- FFII News Update -- 25 February 2004 --
+++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++
-- For immediate release --


As expected, the proposed text for the Intellectual Property Rights 
Enforcement Directive (IPRED) was nodded through by the European 
Parliament's Legal Affairs committee without a vote on Monday afternoon.

The Directive is now scheduled to be debated by the full Parliament on 
Monday 8 March, and voted on (with amendments possible) on Tuesday 9 
March, ready to be approved by ministers on Thursday 11 March.

A report of the MEP's discussion can be found at:
	http://www.ipjustice.org/CODE/Report_of_JURI_Committee_Meeting.html
	
One notable comment is that of Malcolm Harbour (UK Conservative MEP), 
who said that:

     	"This Directive, contrary to public presentation, is not mainly 
about the commercial interests of the software industry, but about 
important brandnames that are an incentive for criminal elements 
(tangibles)...  When getting e-mails MEPs should reply that the 
Directive is not about Free Software and not even about the digital 
world. It should pass in First Reading".

This should be read in the context of Article 2 of the Directive, which 
states that:

     	"...the measures and procedures provided for by this Directive 
shall apply, in accordance with Article 3, to any infringement of 
intellectual property rights as provided for by Community law and/or by 
the national law of the Member State concerned".

A page by Ian Brown of the Foundation for Information Policy Research 
(FIPR), outlines some of the measures in the directive and how they 
could be used by claimed rightsholders against small software projects:
	http://www.ffii.org.uk/ip_enforce/oss.html


EFF Alert
=========

Electronic Freedom Frontier (EFF) today also issued a briefing about the 
directive, and an online petition which will be sent to key MEPs,
	http://action.eff.org/action/moreinfo.asp?item=2873
	http://action.eff.org/action/index.asp?step=2&item=2873
	
	"The European Parliament is poised to adopt a controversial directive 
on Intellectual Property Rights Enforcement that would give 
rights-holders incredibly powerful tools in their fight against 
intellectual property infringers. While this might sound like a good 
idea at first, a closer look reveals that the directive doesn't 
distinguish between unintentional, non-commercial infringers and 
for-profit, criminal counterfeiting organizations. If this directive is 
adopted, a person who unwittingly infringes copyright -- even if it has 
no effect on the market -- could potentially have her assets seized, 
bank accounts frozen and home invaded. Don’t let these tactics become 
the latest weapons in intellectual property rights-holders' destructive 
war on "piracy".	
	
	"The key to the directive is the definition of 'commercial scale'. 
Several of the more extreme new remedies are only available for 
commercial- scale infringement. However, this is largely undermined by 
the definition in new recital 13a of the directive, which states, 'The 
acts which are committed on a commercial scale are those carried out for 
direct or indirect economic or commercial advantage'.

	"Although it goes on to say, 'This would normally exclude acts done by 
end consumers acting in good faith,' the meaning of 'indirect economic 
advantage' is unclear and the directive is not limited to intentional 
infringements. Therefore, there is concern that rights-holders will be 
able to use the new tougher penalties against consumers who accidentally 
or unknowingly infringe, including those who commit minor infringements 
without any commercial purpose or impact."


FFII view
=========
	
FFII stands by its previous statements about the Directive, as picked up 
for example in this Slashdot discussion:
	http://yro.slashdot.org/article.pl?sid=04/02/20/216227
	
In particular FFII draws attention to the proposal to make "Anton 
Piller" orders available for all alleged IP infringements, without even 
the proposed restriction to commercial scale.  Currently these measures 
are unknown outside the UK and France.  Furthermore, in the UK, after 
very strong criticisms from the most senior judges, a strict new code of 
practice was brought in in the early 90s which cut the number of 
applications granted by a factor of ten.	
	
	"We are talking about unannounced dawn raids by private security firms, 
piling in with legal authority and seizing entire computer systems and 
filing cabinets full of documents. That is a terrifying and destructive 
experience for a small firm," explains FFII's James Heald.

That is why FFII is arguing that such measures should only be available 
in the most extreme circumstances, and where there is clear evidence of 
a deliberate knowing intent to infringe for commercial gain on a 
commercial scale. Such measures are simply not appropriate where there 
is no such deliberate piracy, and no such emergency, in cases as complex 
as those in patent law and disputed ownership of confidential 
information/trade secrets, which routinely can take five years in court.

	"FFII says that without better defined safeguards the Directive will 
lead to a far more agressive, lawyer-driven legal environment for 
creative businesses. Having seen how similar legislation is used in the 
United States, FFII fears that it will provide the perfect means for 
agressive litigators holding dubious intellectual property rights to 
"pull a SCO" and use the powers of the Directive to seriously harass and 
damage small open-source projects and innovative businesses".

FFII believes that:

1. Disputes about patents and trade secrets/confidential information 
should be taken out of the scope of the directive altogether. The 
draconian measures being discussed are completely inappropriate for such 
complex disputes.

Ideally the directive should be limited back to its original proposed 
scope, namely commercially organised, fully intentional, copyright and 
trademark infringement.

2. The Directive should only apply where there is intent to infringe for 
commercial gain on a commercial scale. It should not apply unless there 
is good evidence of recklessness or a deliberate knowing intention to 
infringe.

3. Articles 7 to 10 should even then only apply in exceptional cases. It 
should be clearly stated in the Directive (as at the moment it is not) 
that they are not intended to become automatic standard procedure in all 
IP disputes.


*** FFII urges all European citizens to contact their local constituency 
MEPs as soon as possible, to make them aware of the dangers of this 
Directive. ***

Contact details for UK MEPs can be found at:
	http://www.europarl.org.uk/uk_meps/MembersMain.htm
	
	



James Heald,
UK co-ordinator, FFII

http://www.ffii.org.uk/ip_enforce/ipred.html