This is a Commission proposal introducing criminal sanctions for IP infringements under the "correct" legal basis, aka IPR Enforcement Directive Mark Two. It applies to all types of infringements and no financial benefit is required by the "commercial scale" standard. It has been described as a worse threat to free software than software patents. FFII and others have been alerted.
Thanks to edri.
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Counterfeiting and piracy: the Commission proposes European criminal-law provisions to combat infringements of intellectual property rights
Reference: IP/05/906 Date: 12/07/2005
IP/05/906
Brussels, 12 July 2005 Counterfeiting and piracy: the Commission proposes European criminal-law provisions to combat infringements of intellectual property rights
Today the European Commission adopted proposals for a directive and for a framework decision to combat infringements of intellectual property rights. The purpose of the proposed measures is to align national criminal law and improve European cooperation so as to deal effectively with counterfeiting and piracy activities, which are often carried out by criminal organisations. Counterfeiting and piracy, and infringements of intellectual property in general, have increased significantly in recent years and seriously undermine several sectors of the European economy.
Franco Frattini, Vice-President of the European Commission responsible for Justice, Freedom and Security, remarked that the new measures proposed by the Commission form the criminal law front to the fight against counterfeiting and piracy in Europe. Effective alignment of national criminal law in this domain, he declared, “forms a basic platform underpinning our joint efforts to eradicate these phenomena which are undermining the economy”. Criminal organisations are now investing in these activities which are often more lucrative than other types of trafficking and still carry light penalties. Counterfeiters and pirates jeopardise legitimate businesses and threaten innovation. Furthermore, in many cases, counterfeit goods pose a real danger to public health and safety.
The proposed measures apply to all types of infringements of intellectual property rights. Under the proposal for a directive, 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.
The proposal for a framework decision sets a threshold for criminal penalties applicable to the perpetrators of these offences: at least four years' imprisonment if the offence involves a criminal organisation or if it jeopardises public health and safety. The applicable fine must be at least EUR 100 000 to EUR 300 000 for cases involving criminal organisations or posing a risk to public health and safety. The proposal allows Member States to apply tougher penalties.
The Commission hopes that this clear political signal reflecting the determination to combat piracy and counterfeiting will be supported by concerted, long-term information campaigns by national and regional authorities and other interested parties to raise awareness, not only among key players in the fight against counterfeiting and piracy but also amongst the wider public as a whole.
Hi All,
On 13/07/05 11:43, teresahackett@eircom.net wrote:
This is a Commission proposal introducing criminal sanctions for IP infringements under the "correct" legal basis, aka IPR Enforcement Directive Mark Two.
My immediate reaction is that copyright, trademark or patent infringements should be treated as civil matters and not as criminal activities. The complainant must make their case that a particular alleged infringer has in fact infringed on their rights/privileges. Turning these infringements into crimes is an expensive form of "corporate welfare", which shifts the burden of pursuing infringement cases from the individuals and organisations involved to police and customs officials.
It applies to all types of infringements and no financial benefit is required by the "commercial scale" standard. It has been described as a worse threat to free software than software patents. FFII and others have been alerted.
"Commercial scale" sounds extremely vague to me, especially when combined with the "aiding or abetting and inciting" clause. If someone releases some software that could be used on a "commercial scale" to copy data CDs (the unix dd command, for example) then they would appear to be liable.
I'm no fan of organized crime, but I think it's unfair to weight the laws so strongly in favour of the copyright, trademark or patent holders. This law could be used to define a company producing generic medicines without a patent licence as a "criminal organization". I don't know how this directive should be written to specifically target what most of us think of as "organized crime".
David
David O'Callaghan david.ocallaghan@cs.tcd.ie writes:
This law could be used to define a company producing generic medicines without a patent licence as a "criminal organization".
Careful there. This is an argument to be used by the Irish Free Medicines Organisation, not IFSO.
I'm not saying you shouldn't support IFMO, or start that organisation, but lets not repeat one mistake made in the swpat battle: arguing for your position without stating your real reasons.
Two examples of this were the overemphasis of harm to SMEs, and the focussing on trivial patents.
Those two problems can be solved (in theory) by making a government funded SME Patent Defense Fund, and by increasing the funding of the EPO so as to increase quality.
I don't have any faith that either solution would have worked in practice, but if they had (or if other such solutions worked), our claimed problems would have been solved, but our actual problem would be as bad as ever.
If you don't ask for what you want, you mightn't like what you get.
If you don't ask for what you want, you mightn't like what you get.
That's fair enough, but in the Patents debate we made a conscious decision to stand with SMEs and not seek some kind of Free Software exception.
A great quote: "We must all hang together or assuredly we will all hang seperately" (Ben Franklin, I think).
Malcohol.
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Malcolm Tyrrell malcoh0l@yahoo.ie writes:
in the Patents debate we made a conscious decision to stand with SMEs
and it was a good decision, but a lot of people framed the debate as SMEs Vs. Whatever. Mostly because that was the easiest argument to make.
This wasn't so much of a problem for this list since this list is a focal point of most/all of Irelands competence on this issue, but for the next battle we have to make sure that others are able to make the best arguments, instead of resorting to the easiest one.
The pro-swpat camp won most of the ground they won because they noticed a weak point in the legislative process (the largest party in the EP was having their vote dictated to them by one person, so they just had to get this one person on-side).
After their very embarrassing defeat in that round, they'll be looking for a more stable weakness in our position. We can't afford to leave the SME problem open in the next round: the pro-swpat camp will offer a Software Patents + SME Assistance Plan compromise. And it really will be a compromise, and it will be what we have asked for, and it will be terrible.
On 13 Jul 2005, at 13:35, Malcolm Tyrrell wrote:
If you don't ask for what you want, you mightn't like what you get.
That's fair enough, but in the Patents debate we made a conscious decision to stand with SMEs and not seek some kind of Free Software exception.
I suspect you might be misinterpreting what Ciaran meant.
I don't think he was advocating that the free software movement should have just sought to protect the interests of free software creators and users and to hell with everyone else (which IMHO would have been a catastrophic mistake, and I said so at the time).
I think he meant that the argument that swpats are bad because SMEs can't afford or defend against claims of infringement isn't the primary reason we are worried about swpats, it just happens to be a reason that is easier to explain to people. Ditto for the issue of trivial patents.
The fundamental reason that I am worried about swpats is because they prevent people from building on ideas for 20 years without any commensurate benefit to society to offset this harm.
If we focus on the costs for SMEs, then this problem could in-theory be solved without addressing the fundamental issue by creating a fund to defend SMEs.
If we focus on the problem of trivial patents then this too can, at least in theory, be solved without addressing the fundamental issue too - because even patents on non-trivial ideas do more harm to society than good. For example, the RSA algorithm wasn't trivial, but its inventors were not motivated by the desire to obtain a patent (as evidenced by the fact that they didn't bother to patent it for 6 years after they invented it), and so there was no actual benefit to society to compensate us for tolerating the RSA monopoly for 20 years (the algorithm would have been invented anyway).
As Ciaran said, if we don't ask for what we want (or complain about the thing that actually worries us) then we risk not liking what we get.
Ian.
My immediate reaction is that copyright, trademark or patent infringements should be treated as civil matters and not as criminal activities. The complainant must make their case that a particular alleged infringer has in fact infringed on their rights/privileges. Turning these infringements into crimes is an expensive form of "corporate welfare", which shifts the burden of pursuing infringement cases from the individuals and organisations involved to police and customs officials.
If the economic effect is significant enough, then an argument for centralised policing could be made along the following lines: 1. Companies which produce IP are valuable to the economy. 2. They cannot themselves afford to persue all individuals and companies infringing their property. 3. The economic damage due to the infringement of their IP is high. 4. Even though there is a cost attached to policing on their behalf, the net benefit is positive.
Some hypothetical examples: * Musician who sells his/her own music on the net cannot afford to persue everyone who obtains his/her music without paying. * A small Irish designer clothing company couldn't afford to persue numerous counterfit outfits importing fake goods ariving from oversees?
Personally I couldn't care less about designer clothes but, as an economic balance, such policing might make sense. Please note the "might", i.e. I'm not saying it does!
Malcohol.
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Hi,
On 13/07/05 13:31, Malcolm Tyrrell wrote:
If the economic effect is significant enough, then an argument for centralised policing could be made along the following lines:
- Companies which produce IP are valuable to the economy.
- They cannot themselves afford to persue all individuals and
companies infringing their property. 3. The economic damage due to the infringement of their IP is high. 4. Even though there is a cost attached to policing on their behalf, the net benefit is positive.
Sure, but the proponents of the directive must make the case that the economic damage due to infringements outweighs the positive effects of infringement, and defend the negative effects of stricter enforcement.
Some hypothetical examples:
- Musician who sells his/her own music on the net cannot afford
to persue everyone who obtains his/her music without paying.
- A small Irish designer clothing company couldn't afford to persue
numerous counterfit outfits importing fake goods ariving from oversees?
These are interesting examples but not, I suspect, the main targets of large-scale commercial counterfeiting, e.g.:
* A musician who is signed to a large record company, where the record company pursues infringements as the legal copyright hoders.
* Large clothing brands whose trademarks are commonly used on counterfeit clothes.
While I think such organisations are entitled to copyrights and trademarks, they probably would be able to cover the costs of civil litigation. The problem for companies like this is that it may be difficult to track down the sources of counterfeit goods. It would be pretty bad PR for them to take expensive civil proceedings against obvoius targets, like market stall holders, who couldn't afford to defend such a case.
As an aside, we should be aware of the fallacy that every counterfeit item sold is a lost sale for a real item: someone who buys a fake Rolex probably wouldn't consider buying a real one for 100s or 1000s of euro.
To bring this more specifically back to Free Software, what bad effects could this have for us? I suppose the main threat is to free software that works around dodgy DRM schemes in order to make use of media on unsupported platforms, which could be used for copyright infringement. What are the other threats to Free Software from this directive?
Regards,
David
On Wed, Jul 13, 2005 at 02:34:46PM +0100 or so it is rumoured hereabouts, David O'Callaghan thought:
To bring this more specifically back to Free Software, what bad effects could this have for us? I suppose the main threat is to free software that works around dodgy DRM schemes in order to make use of media on unsupported platforms, which could be used for copyright infringement. What are the other threats to Free Software from this directive?
I'm not sure if this bit is up for discussion at present but, IIRC, the directive allowed for "Anton Pillar" orders where accusation of infringement would allow a plaintiff to seize the accused party's "production" equipment. For a FS author, accusation of copyright infringement could lead to seizure of all of their and their family's computer equipment whether it's relevant or not. Therefore, the next threat to FS is probably in the harrassment value...
Conor
Anti-circumvention for sure, also P2P users and developers.
A scenario suggested on another list is that well financed software companies will send their lawyers round Europe's police forces, until they find one that takes their copyright claims seriously. The threat of criminal prosecution will have corporate risk officers demanding a linux-free computer room. I'll see Georg Greve next week and can ask him what his take is on this.
Anton Pillar orders (and the associated bank account freezing Mareva orders) are civil proceedings and are in the IPRED 1. Ireland already had these as part of our common law. The directive made them Europe-wide, but without the checks and balances established by the Irish courts when granting such orders.
Add go to jail to your list ;-)
Teresa
conor daly wrote:
On Wed, Jul 13, 2005 at 02:34:46PM +0100 or so it is rumoured hereabouts, David O'Callaghan thought:
To bring this more specifically back to Free Software, what bad effects could this have for us? I suppose the main threat is to free software that works around dodgy DRM schemes in order to make use of media on unsupported platforms, which could be used for copyright infringement. What are the other threats to Free Software from this directive?
I'm not sure if this bit is up for discussion at present but, IIRC, the directive allowed for "Anton Pillar" orders where accusation of infringement would allow a plaintiff to seize the accused party's "production" equipment. For a FS author, accusation of copyright infringement could lead to seizure of all of their and their family's computer equipment whether it's relevant or not. Therefore, the next threat to FS is probably in the harrassment value...
Conor