Criminalisation of copyright and trademark infringement
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- Previous activity
- Summary of Directive
- Harmful effects on software freedom
- Reading the proposal text: "2006/0168(COD)"
- What we can work for
- External links
On the 25th of May, 2007, the European Parliament held it's "1st reading" vote. FFII have published a table with each of the amendments indicating which were adopted and which were not.
For information on FSFE's position before the European Parliament's 1st reading, see our April 2007 open letter to the MEPs.
Summary of the Directive
- The proposed Directive: com(2006)168
Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences."
(Article 3. Page 9 of the proposed directive)
The EU definition of "Intellectual property rights" lumps together patents, copyright, trademarks, design protections, and many other categories of law. No definition is given for "intentional" or "commercial scale", and no examples are given for what would be included or what would be excluded.
This directive is often called "IPRED2", however we recommend not using terms that talk about "Intellectual Property" as this leads to confusions that make our work more difficult. Instead, it can be called "The Criminalisation Directive".
Harmful effects on software freedom
Software patents: Enforcement through fear
We expect that the European Parliament will amend the proposed Directive to exclude patents from the scope. This is important because although the European Patent Convention excludes software from patentability, the European Patent Office is granting thousands of patents on software ideas. While >90% of litigation based on such patents would fail in court, they give the patent holders a legal basis for threatening software producers/distributors with litigation.
If patent infringement is not removed from this Directive, then the threats of jail time, massive fines, seizing of assets, and closure of business could generate enough fear among computer users to make people obey invalide patents granted on software just because the stakes are too high. (For more on the issue of software patents, see the page about FSFE's work to prevent software patentability.)
Harm to efficient software production/distribution models
Greatly increasing the risks involved in software development and distribution will indirectly discriminate against many software models. High legal risks are easier to bear for bodies with large funds and full time legal staff. Free Software, which is often contributed to by individuals, by Small- and Medium-sized Enterprises, and by businesses whose core business is not software, would be one category of software which would bear this indirect discrimination.
Encouragement of commercial abuse, like SCO's
Giving litigators increased access to the resources of national enforcement bodies, and increasing the severity of effects which can be achieved by litigation, will encourage people to use litigation as a commercial tool in the market.
SCO in the USA is a well-known example of this: without proving anything or even showing any evidence, they have accused IBM and others of intentional, commercial-scale "IP" infringement, and have slowed the adoption rate of Free Software such as the GNU/Linux operating system and harmed the reputation of a handful of companies (competitors to Microsoft, one of SCO's major funders).
Inability to indemnify
Since criminal offenses cannot be indemnified against, patent litigation insurance would not be possible, and software producers could no longer provide indemnity to distributors of their software.
Developers in grey areas: DeCSS, filesharing
The European Copyright Directive (com(2001)29ec) greatly increased the scope of copyright law. As well as prohibiting unauthorised copying of information, copyright law now restricts how the public can use technology to access or view copyrighted information. For example, you are a copyright infringer if you develop your own software to watch a standard DVD that you have bought. Writing software to share files with others over a network could be copyright infringement; it's a grey area. The threat of jail sentences and the other harsh measures in this directive could scare people away from writing or publishing many types of useful software, including types of software which are illegal-but-tolerated or which are grey areas.
Reading the proposal text: "2006/0168(COD)"
The IPRED2 proposal was originally published in two parts, but in May 2006 it was republished as one directive: com(2006)168).
The reason for republishing and changing from two parts to one part is that there was a precedent-setting case in the European Court of Justice which implies that EU directives can require member states to implement criminal sanctions.
The procedure details
The following information in this paragraph applies to the first published version of IPRED2, but it is likely to be the same for the current proposal.
EP Responsible committee: Legal Affairs (JURI)
EP Rapporteur: Nicola Zingaretti (PSE, Italy).
EP committees giving opinions: Industry, Research and Energy (ITRE), Internal Market and Consumer Protection (IMCO), Civil Liberties, Justice and Home Affairs (LIBE).
The major problems with the directive are Articles 3 and 4 (pages 9 and 10 of the document). Article 3 is quoted in full above. Article 4 lists the harsh punishments that must be made available for the actions described in Article 3. These include jail sentences, fines, closure of business, destruction of goods, being placed under judicial supervision, and a ban on access to public assistance.
Weak limits: "intentional" & "commercial scale"
The phrase "all intentional infringements [...] on a commercial scale", will lead many people to think that this directive will only apply to pre-meditated law-breaking for profit.
Consider a patent holder's lawyer trying to coerce a software developer into ceasing distribution of their software.
Lawyer: "Hello. You're infringing our patent, cease distribution of your software."
Software developer: "There must be a mistake. I've never read a patent, and anyway, software functionality isn't patentable in the EU."
Lawyer: "Well, the European Patent Office granted this patent, and you infringe it"
Software developer: "It's very unlikely to be held up in court."
Lawyer: "Since you intentionally wrote your software, and since your software is affecting the softwar market, your infringment is intentional and commercial scale - that makes you a criminal. Will you cease distribution or risk getting a criminal record and possibly having your business closed, a large fine imposed, and maybe spend some time in jail?"
Software developer: "...but, my software development was intentional, but my infringement wasn't. I didn't even know about this dubiously valid patent."
Lawyer: "Well, since I've accused you of infringing it, you're aware of it now. So any continued infringement is definitely intentional. Will you now cease distribution?"
A simpler example is a person playing songs on the street for the change that people throw. The proposed text makes the musician a criminal if any song they play is copyrighted and is played without first obtaining a license. It also makes the person that drove them into the city centre a criminal, for aiding the infringement. People that throw money or stand around a listen could be criminals for inciting the infringement. And anyone that can prevent the infringement, but doesn't, is a criminal for abetting the infringement. This type of example can be useful to help people to understand how ludicrous the text is, but it doesn't explain the harm to software freedom, so it's only good as a stepping stone to further understanding.
Disproportionate access for rights holders
The directive also gives special privilege to rights holders to influence the investigation:
Joint investigation teams
The Member States must ensure that the holders of intellectual property rights concerned, or their representatives, and experts, are allowed to assist the investigations carried out by joint investigation teams into the offences referred to in Article 3."
Also of concern is Article 8 (page 11) which says that Member States should investigate and prosecute "intellectual property right" infringements, even when the rights-holder has not requested it.
What we can work for
- We can ask the European Parliament and the Council of Ministers to limit criminal sanctions to cases where the infringement was done to fund organised crime or causes a health or safety risk to the public. Organised crime and public health and safety risks are stated as the justifications of this directive, so tying the Articles to the justifications seems reasonable.
- We can ask the European Parliament and the Council of Ministers to remove the criminalisation of "attempting, aiding or abetting and inciting [intellectual property right] infringements". For most EU member states, this is proposing harsher punishments for incitement or abetting of "intellectual property right" infringements than currently exist for actually committing such an infringement.
- We can build pressure in the European Parliament to simply reject this directive. Drafting law is the European Commission's responsibility, not the European Parliament. Since the Commission has handed the Parliament this directive which is basically one single sentence containing undefined and vague terms, it would be reasonable for the Parliament to reject this proposal on the grounds that the Commission has not done its job.
- We can look into the case law of existing criminal sanctions for patent, copyright, and trademark infringement. Some MEPs think that this direcitve is simply harmonising existing laws. In fact, laws like this exist in very few EU members states - and it would be interesting if we knew how often they were used. If they are old, rarely-used laws, then it would be hard for anyone to advocate making them mandatory across the EU.
- We can try to get patents excluded from this directive. This is quite practical because patents are particularly easy to infringe unknowingly. Doing so unknowingly may not shield anyone from the criminal sanctions here because "intentional" may apply to the act which lead to infringement (writing the software) rather than the infringement itself. Further, even if unknowing infringement was excluded, this directive would give patent holders the power to turn an offence into a crime simply by informing the infringer. This would have obvious uses in the market - informing an infringer just before a product release or during the bidding for a contract are two examples of valuable misuse.
What needs to be done immediately
Hopefully this webpage will be useful for informing others. If you think something should be added to this webpage, please contact us.
Many Member States already have criminal sanctions for copyright and trademark infringement, and some even have criminal sanctions for patent infringement. When politicians ask "What harm have existing criminal sanctions caused in other EU Member States?" we need to have a list of good examples. This list has to be gathered, and for that we need your help.
- The proposal: com(2006)168. (Also linked to above.)
- Did You Say "Intellectual Property"? It's a Seductive Mirage, an essay by Richard Stallman about terminology.
- The Charter of Fundamental Rights. This directive seems to violate Article 49 on proportionality of criminal penalties.
- A ZDNet UK article: Making IP infringement a crime.
- com(2000)789, a related Communication from the Commission.
- IPRED-1, this directive's predecessor