Legal Affairs Committee washes hands in innocence
The European Parliament Legal Affairs Committee voted on the Criminal Measures IP directive. Overall impression: the experts kept the definitions vague. The experts leave it to the European Court of Justice to clarify the directive. If they want to leave it to the Court, why do they want to be involved in the first place?
It seems to be the new trick in town since the Constitution was voted down: leave it to the Court. Even if the Treaty does not provide enough space, nobody can stop the Court. It has been called a legal coup d'etat here and there.
The approach taken by the Committee will lead to many years of legal uncertainty, a huge threat potential that hampers the freedom to act in the market. Criminal law has to be precise, this age old principle is disregarded by the Committee.
Inciting
The Commission proposal makes inciting an infringement a crime too. This is a huge threat to everybody in the software and the internet industry. From FFII to BSA run amok against this. It is still in.
Piracy
Everybody wants to limit the directive to clear cases of piracy. The Max Planck Institute, together with the Chartered Institute of Patent Agents gave detailed recommendations to solve this issue. Non of these recommendations made it to the Legal Affairs Committee report.
For instance amendment 30: "This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights in the context of counterfeiting and piracy."
Piracy is not defined. And the formulation can be turned around: These are measures in the context of counterfeiting and piracy, they are very broad, so apparently piracy and counterfeiting have to be seen in a broad way. Like this it only leads to word inflation. How strong is the limitation? The ECJ can even turn a treaty around, as they showed with C-176/03.
A clear limitation, based on the work of the Max Planck Institute, was overwhelmingly voted down: "For the purposes of this Directive, 'infringement' means an infringement where the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion."
The importance of this limitation, meant to exclude conflicts over the extent of protection by legitimate commercial enterprises, was not seen by the Committee.
Unexamined rights
Design rights, which are unexamined, are still in. The Chartered Institute of Patent Agents about them: "The position in relation to registered designs is particularly difficult. It is widely recognised that the effect of having no substantive examination is that there are many designs which are registered which are not valid. If criminal sanctions applied to infringement of such rights then it would seriously impact on the freedom of others to use those designs. Even if it were a defence to show that the registered design was invalid (or that it was believed to be), it is likely that there would be a substantial adverse effect on legitimate competitors, who would not be willing to take the risk of criminal liability. Commercial organisations are willing to take a commercial risk in relation to civil liability – that they will be found liable for damages if their commercial judgement is wrong; but such issues should be left to civil remedies, not to criminal ones."
Wise words which were not picked up by the Legal Affairs Committee.
Commercial scale
A solid definition of commercial scale by the Max Planck institute was not used: "commercial activity with an intention to earn a profit". The rapporteur invented: "(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain a commercial advantage; this would exclude acts carried out by private users for personal and not for profits purposes;"
"This would" shows the origin, a civil law consideration (IPRED). It is weak and not suited for criminal law.