Open letter to MEPs, 2007-04-18

Dear MEP,

FSFE would like to alert you to a proposed Directive text which will be voted on in the next Plenary session. Com(2006)168 criminalises many socially useful and legitimate uses of technology and would create bureaucracy, uncertainty, and fear which would reduce the ability of European citizens and businesses to participate in the information society. This undoes the benefits of advances in computer technology which are making it easier and easier for everyone to be involved in developing and distributing software and information.

The proposed text:

1. Creates overly broad crimes of "attempting, aiding or abetting and inciting" infringements of many dissimilar laws including copyright, trademark, and patents. This violates Article 49 of the The Charter of Fundamental Rights by making disproportionate use of criminal sanctions.
2. Makes enforcement so cheap and easy that police investigation will become a tempting tool for businesses to use against competition.
3. Lacks safeguards to prevent abuse or to limit the applicability to socially harmful situations. The only two limits, those of "commercial scale" and "intentional" are not defined.
4. Introduces intimidating degrees of punishment to areas where individuals, community-based projects, and other small to medium-sized groups which may not have sufficient money or lawyers to defend their rights in court cases. This must be avoided in areas such as digital technology where technology changes much faster than EU law.

We therefore ask the European Parliament to:

1. Limit the criminal sanctions to trademark counterfeiting and what the TRIPS agreement calls "copyright piracy"
2. Define "commercial scale" as being for financial reward
3. Define "intentional infringement" as being "bad faith" infringements
4. Remove the criminalisation of "attempting, aiding or abetting and inciting"
5. Remove automatic investigation and prosecution - enforcements of rights should be at the request of the rights holder
6. Add counter-balances to protect against misuse

Another organisation, FFII, has published draft amendments which greatly improve the Directive proposal. FSFE expects to endorse FFII's amendments when they are tabled for next week's vote.

For more information, you can contact FSFE's Brussels representative, Ciaran O'Riordan, by phone to discuss this in English, or to discuss it in another language, contact Ciaran by email.

Ciaran O'Riordan,
Brussels Representative, Free Software Foundation Europe (FSFE)