[Fsfe-ie] Enforcement directive-draft IFSO letter

[Bernhard Kaindl]

Hello!

On Sun, 25 Jan 2004 teresahackett at eircom.net wrote:

> Thanks for this. So it looks as if the debate will take place on 9.2.2004 and
> the vote on 25.2.2004. Deadline for amendments is 5.2.2004 at 12.00.

I don't think that the deadline of amendments and the vote will be this
far apart. I wouldn greet such time with applause if the EP would make all
amendments which are going to be tabled available to the public some weeks
before the vote so that there is more time to compose voting recomendations.

The draft agenda is so far "only a draft". It's the current plan, but it's not
yet set in stone. This means, if the presidents of the political groups cannot
agree to put in into the final agenda in their meeting on the Thursday at 15:00
before the plenary week, then the debate and the vote (usually it would be on
the day after the vote, at least in the same session week) will be delayed at
a later time, to the next plenary session likely.

That's just from my information from the software patent-directive which was
delayed two times, first time they wanted to rush it in July, and then the
Demonstration and the intense lobbying campaigns from all groups with the
differencies in position and demand obivously helped to delay it a second time.

What I think helped some of the people which wanted to make a difference
but didn't know all details was, that FFII had a very clear position and
a pamflet which summarized it in short on one page.

Anybody could read it in a minute and see that big concerns are raised by
this group: http://www.ffii.org/proj/kunst/swpat/pamflet/europarl03.en.pdf
(the source for this pdf was LaTeX, list the directory for it)

I think is essential that it should raise the main points in short headlines
at the top, explain them in the body(in the case of IP-Enf raise the demands)
and have exactly one link for further information und updated recommendations.

I'm hoping it can be delayed at least once and it would be cool if we could
get a "best of all" from council and parliament without the bad points... or
have at least one of the points which the council does not like adopted by
the parliament so that the council has at least one problem which it may have
to think about so further delaying the stuff and possibly getting it past
the end of this period of the parliament which means that the next parliament
could restart the whole process from the beginning if it thinks it needs to...

AFAIK, the deadline for regulary tabled amendments is on the Thursday before
the voting week, but apparently it's also possible(it's not usual, and if,
only single ones) to table amendments in the session week on the day before
the vote. At least at the swpat vote, an oral amendment has been brought in
directly during the vote, but this was apparently some special deal...

> It would be great to do an action towards MEPs, I'm seeing if any others e.g.
> EDRI, BEUC are doing anything as well.

Yes, we definitely need this. Having some material like your letter as
base/flyer/pamflet, would possibly allow ordinary constutitents to raise
these points with their local MEP on a EU-wide level.

> The draft letter is addressed to the Council, which is a seperate, but
> related process, and their text is worse than the Parliament.

Thanks, then the amendments and requests for the Parliament should be
different of course.

This directive is more special than the software patent directive it looks...

Normally, or at least from the Treaty of the European Communities which
gives the EU it's legal base, the codecision procedure for making a directive
like this says that(just the legal stuff, practice is different as we see):

1) European Commission issues proposal for a directive
2) Parliament decides on it's initial position in first reading
3) Council decides on the position of the parliament, if it adopts
   it unchanged, it's put into law
4) If it does not agree, it decides on it's initial position and sends
   the text back to the Parliament
   ... and so on ...
   (more, background links and references are at
    http://wiki.ael.be/index.php/EULawMakingProcess)

At least from the legal view, the parliament as full right to decide it's
inital position on it's own, but it seems in this directive now, the
parliament gets pressure to finish this directive at point 3) which is
the only realistic possiblity to finish this direcite is this legislative
period.

If Parliament and Council do not agree on one text before the end of the
period the next Parliament with the MEPs of the new member states takes
over and it can re-run the parliament's first reading if it wants and
get to a completely different position.

So I guess, all what really counts is to get a good decision in the
democratic house, the parliament, now.

But MEPs may be pushed to only vote for amendments which are approved
by the council and this is the danger. OTOH, if there could be amendments
which the council will only be able to give some sign on but not a final
position...

To me, it looks like (like in the swpat directive) some "living democracy"
(one nice politican put it in a news-statement) would be needed again,
at least I don't feel well to see hard criminal penalties for all cases,
indepentent of the amound of damage and I also think the theme of this
directive makes it especially hard to formulate a position, especially
on such items.

> But I am sure that the Art 20 criminal provisions will be tabled for
> amendment in Parliament, so it is very important that MEPs do not vote for
> this.

If I understood what I've read correctly, the criminal provisions are
part of the orginal proposal(mainly Article 20 - Provisions under criminal law)
and JURI adopted an amendment which is now Amendment No. 43 of the JURI Report
which deletes this aricle basically and replaces it by a more generic text:

  Without prejudice to the civil and administrative measures and procedures
  laid down by this Directive, Member States shall apply appropriate sanctions
  in cases where intellectual property rights have been infringed.

I guess it would be favourable to adopt this amendment in parliament, it
looks to me much better than Article 20 in the proposal from the commsision.

There are other amendments which add and remove the word "criminal" at various
places of the text.

To collect all the links(Report, initial proposal at the Parliamentary
Observatory) on one page, I've put them at:

    http://wiki.ael.be/index.php/IPEnforcementDirective

> This week I am meeting with the board of the national association of Irish
> ISPs, I hope that they can have some influence.

That's a good one, I think they are the right group to address the Irish
delegation of the council and also the parliament, as well as maybe for
the presidency of the council.

Bernhard