EU Intellectual Property Enforcement Directive

-------- Original Message --------
Subject: [prep-l] EU intellectual property Enforcement Directive
Date: Tue, 3 Feb 2004 20:43:36 +0100
From: Alan T. <[email protected]>
To: [email protected]

The Irish government believes that the intellectual property area is   ripe
for some easy achievements during their term as the presidency of   the EU.
This is bad news both on the Enforcement Dirtective (heabily   pushed by the
MPAA/IFPI/BSA etc) and also on the Software Patents   question. The
following introduction is by Teresa Hackett from the   Irish Free Software
Organization. She has also worked extensively for   the libraries
organization EBLIDA.

a.


Intellectual Property Rights Enforcement Directive

European Commission Proposal for a Directive on the enforcement on  
intellectual property rights

What is the IPR Directive?

The EU copyright Directive 2001 set out the legal framework for   copyright
and related rights in EU member states. The IPR Directive   2003 aims to
harmonise the legislation of EU member states with regard   to the
enforcement of intellectual property rights.

The Commission claims that the proposal maintains a balance between  
helping rightholders to defend their rights and protecting users from  
unfair litigation, but it goes further than international obligations  
under TRIPS. Even before the scope of the proposal was widened  
significantly by the European Parliament in November 2003, this claim   was
hotly disputed.

Like it's predecessor, the IPR Directive has attracted controversary   and
criticism from politicians, IPR academics and a wide range of civil  
society interests including researchers, open source software movement,  
libraries, disability and consumer groups. The proposed Directive:

     * affects everyone. Technical protection measures can be attached   to
all digital content and circumvention in all cases is illegal -   there are
no exceptions. The terms of the proposal are not aimed at   pirates and
counterfeiters, but cover any infringement of copyright by   anyone,
including small scale non-commercial activities which do not   harm the
rightholder. European citizens will be liable for all   infringing
activities, however insignificant or innocuous, and are   faced with civil
sanctions and penalties.

     * goes further than international agreements, so-called "TRIPS   plus"
elements.

     * fails the subsidiarity test. Why is the Commission not following  
the principle of subsidiarity and is instead proposing detailed changes   to
the legal procedures of member states?

     * applies the "nuclear weapons" of the law Europe-wide. Anton   Piller
orders, which involves the seizure of documents and equipment,   and the
associated Mareva order, which allows for the freezing of bank   accounts,
have been termed the "nuclear weapons" of the law. The   Directive does not
respect the checks and balances developed by the   courts in their use.

What does the proposed Directive mean?

     * Individual users of peer-to-peer software would face sanctions.

     * The reverse engineering of software products in order to produce  
competing, compatible products would be subject to sanctions. This   would
greatly affect the free software movement and the growing use of   open
source software.

     * Competition and legitimate trade would be stifled by making it  
impossible for small companies to produce goods compatible with   products
such as Sony PlayStation or Microsoft Windows without paying a   licence
fee. It would have severe implications for choice, competition   and the
monopoly position of the dominant players.

     * ISPs could face limitless injunctions, equipment seizures and  
requests for damages. They could also be ordered to disclose customer  
names, block content or undertake surveillance.

     * Intermediaries, such as universities, would be required to police  
their networks as they could be held liable for content distributed   over
their networks.

     * Book readers for the blind could become illegal because they  
circumvent copy protection by changing the format.

Where is the Directive in the legislative process?

You can follow the legislative process here.

The Directive is entering a crucial stage when it goes to a vote in the  
European Parliament in February 2004, during the Irish Presidency of   the
European Union.

The European Commission first issued its legislative proposal on  
31.01.2003. It was sent to the Council of the European Union and the  
European Parliament for approval.

The Committee on Legal Affairs and the Internal Market (JURI) at the  
European Parliament discussed the proposal in November 2003. Because of  
the 200+ amendments tabled by members of JURI, the rapporteur Mme   Fourtou,
issued a compromise set of amendments, which the Committee   approved.

JURI extended the scope of the proposal to all infringements, not just  
commercial infringements. As a corollary, criminal sanctions were   replaced
by civil sanctions and efforts were made to safeguard   competition. These
amendments will go to a plenary vote of the European   Parliament, expected
9 February 2004.

However, it is expected that amendments to re-introduce criminal   sanctions
will be tabled for the vote in plenary in February 2004. It   is vitally
important that any such amendments are defeated, especially   if the scope
of the Directive is extended.

In the meantime, the Council will discuss the proposal in January 2004   and
it is possible that they will approve JURI's amendments.

A campaign to lobby MEPs will be launched in January 2004. Watch this  
space!

Text of the IP enforcement proposal

Proposal for a Directive of the European Parliament and of the Council   on
Measures and Procedures to Ensure the Enforcement of Intellectual   Property
Rights COM (2003) 46 final, January 30, 2003  
http://europa.eu.int/cgi-bin/eur-lex/udl.pl?REQUEST=Service-Sear...

FAQs on the IP enforcement proposal  
http://europa.eu.int/rapid/start/cgi/ 
guesten.ksh?p_action.gettxt=gt&doc=MEMO/03/20|0|RAPID&lg=EN&display=

Text of copyright Directive (aka EUCD) Directive 2001/29/EC of the  
European Parliament and of the Council of 22 May 2001 on the   harmonisation
of certain aspects of copyright and related rights in the   information
society  
http://europa.eu.int/smartapi/cgi/ 
sga_doc?smartapi!celexapi!prod!CELEXnum....

The Draft IP Enforcement Directive - a threat to Competition and to  
Liberty Ross Anderson, Foundation for Information Policy Research  
http://www.fipr.org/copyright/draft-ipr-enforce.html

Europe's 'DMCA on steroids' gets go-ahead. 27 November 2003 Matthew  
Broersma, ZDNet UK  
http://news.zdnet.co.uk/business/0,39020645,39118164,00.htm

New Euro law could make criminals of us all. 5 August 2003 Rupert  
Goodwins, ZDNet UK  
http://comment.zdnet.co.uk/rupertgoodwins/0,39020691,39115479-2,00.htm

Procedures and Remedies for Enforcing IPRs: the European Commission's  
proposed Directive Cornish et al. E.I.P.R. 2003, 25(10), 447-449

Teresa Hackett
January 2004

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