The Prosecution Paradise Directive Re: Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COM/2006/0168 final - COD 2005/0127) Dear Member of the Legal Afairs Committee, All over Europe piracy and counterfeiting of "intellectual property rights" are already prosecutable (TRIPS art 61). The Criminal Measures IP Directive adds disproportionality. The European Commission proposal is not limited to piracy. All commercial scale infringements will be crimes, the proposal criminalises IPR disputes that are essentially of a civil nature and occur between legitimate commercial enterprises. Even untested rights, which may soon evaporate in civil court cases, become grounds for prosecution. And the rights holders may assist the police. Some Members of the European Parliament even proposed in amendments to remove the "commercial scale" condition or to weaken it, to remove "intentional", to involve consumers, to criminalise the young generation. A disproportional directive will cause a Prosecution Paradise, with ample opportunities for trolls. In a knowledge economy, owning information is a certain win. But you still have to fight it out in civil courts sometimes. It is easier and cheaper if the state (the prosecutor) takes care of eliminating competitors, however weak your rights may be, however justified your competitors acts may be. Criminal courts are inexperienced with IP, they will readily provide court orders, criminal law gives wide competences. Litigation companies (trolls) will be able to put maximum pressure on companies that create products and extort disproportional license fees. The current proposals create huge privacy risks when "IP owners" can direct investigation into anyone they accuse of "piracy". The eighties of the last century were characterised with "get rich fast", it was a poker game. This is worse. Winner takes all, and the others can go to jail, kids included. It's jeopardizing Europe's future. We assume nobody deliberately wants to create a Prosecution Paradise. == Measures to take 1 Amendments making the directive broader in scope have to be rejected. 2 The crime has to be defined as proposed by the Max Planck Institute. [1] 3 Weak rights have to be taken out of the scope. In fact, only the rights known to be pirated can stay in: copyright and trademark right. [2] 4 Art 7, which allows the rights holders to assist the police, has to be deleted. [3] 5 The criminal measures to combat piracy and counterfeiting are already available. At best a directive will only have symbolic meaning. A far more realistic approach was suggested by the Dutch Parliament. Its letter should be reconsidered. [4] There should be no hesitation to reject the directive. Yours sincerely, Ante Wessels == Notes [1] Definition of the crime The Max Planck Institute proposes a more precise definition of the crime: "15 Indeed, when proper account is taken of the proportionality principle (see above, 6), harmonisation of criminal penalties can only be justified in relation to acts fulfilling the following elements cumulatively: - Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.] ). - Commercial activity with an intention to earn a profit. - Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right." Amendments 59 with 68 (=69) or 62 with 70 are the best implementations of these recommendations. Max Planck Institute: http://www.ip.mpg.de/shared/data/pdf/directive_of_the_european_parliament_and_of_the_council_on_criminal_measures_aimed_at_ensuring_the_enforcement_of_intellectual_property_rights.pdf [2] Scope Weak rights: - Patents - Utility Models rights (untested) - Design rights (registered: substantially untested; unregistered: not tested) - Database rights, which according to the Commission's own report are surrounded by "considerable legal uncertainty", due to vague legal drafting, and the unclear criterion of what constitutes "substantial investment" by the database owner (recently challenged in several ECJ decisions) Note: Patents and Trade Name rights are not Community law. The Commission only gave examples of Copyright piracy and Trademark counterfeiting. Note: The directive has an open scope, all existing and future IP-rights are covered. Commission text: "*At least* the following intellectual property rights are covered by the scope of the Directive". An open scope is a carte blanche, "at least" has to be deleted. Amendments 27, 28 and 29 are the best implementions. [3] Joint Investigation Teams Max Planck Institute: "22. A specific risk of misuse results from Art. 7 of the proposal, according to which Member States are obliged to ensure that the holders of the IP rights concerned or their representatives, as well as experts, are allowed to assist in the investigations by joint investigation teams into the offences referred to in Art. 3. As transpires from the explanatory memorandum, it is foreseen that the victims actively participate in the prosecution, in particular in the search for evidence. (...) The obligation of Member States to delegate functions within the conduct of criminal investigations to private parties in such a diffuse manner is therefore incompatible with the fundamental structure of a democratic society." Amendments LIBE 12, and JURI 108, 109, 110 and 111 solve this. [4] Dutch Parliament: http://europapoort.eerstekamer.nl/9310000/1/j9tvgajcovz8izf_j9vvgbwoimqf9iv/vg7slw5im1tl?key=vhc0fvdga1qw