[Fsfe-ie] IP Enforcement Directive -- Update: last chance to influence MEPs

James Heald j.heald at ucl.ac.uk
Sun Mar 7 02:17:51 CET 2004

We're now in to the end zone on the IP Enforcement Directive.

The debate and the vote have been put back a day, so we now expect
	Debate:		late Tuesday morning
	Vote:		late Wednesday morning

So this is the last chance to write/fax/telephone/email to your MEP.

Technobabble: the Britney ringtones Directive ?

That was the question put by the Times newspaper in a powerful column
about the Directive on Tuesday:
In fact it is so good, that here it is as a pdf, which you might even
like to print out and fax (maybe white out the bit about Ricin):

We understand that it has made a number of lobbyists and pro-Directive
MEPs rather unhappy, and Letters to the Editor could be impending. But
so far the only criticism published has been a "guest blog" on the
usually rather good IP Kat site,

However, the author wasn't working from the most current version of the
text.  The new text does indeed significantly broaden the Directive, as
discussed in this FFII response:

The Trilogue vs Cappato

The contest is now between
*  the "trilogue" text, negotiated (and rushed) between the Commission,
the Council (Member States) and some members of the Parliament legal
affairs committee; and
*  various other amendments, and in particular 5 amendments tabled by a
cross-party group of 36 MEPs, led by an Italian, Marco Cappato.

If the "trilogue" text is approved, it will be signed off by the Council
of Ministers in Brussels on Thursday, and that will be that.

But if *any* other amendments are passed, then (according to Mme
Fourtou), the Council will refuse to accept the amended text, and will
send it back to Parliament to reconsider in the new Parliament.  (This
may or may not actually turn out to be true).

Comparison of the texts

A comparison of the various texts can be found at

The first two columns (the original Commission proposal, and the
Parliament legal affairs committee proposal) are now of academic
interest only.  Clause by clause, these are still on the ballot paper;
but they are now pretty much irrelevant.  The third and fourth columns
are the ones that matter.

Party positions

The official position of the Socialist group, the Conservative group,
and (after a lengthy group meeting this week) also the Liberal group is
to back the Trilogue text unamended, whatever its faults.

A number of smaller groups have declared for Cappato's amendments, as
have a growing number of breakaway individual MEPs and even whole
national delegations from all parties.

The UK MEPs tend to be the most obedient of all to their whips; but if
any UK delegation does crack, this could be the tipping point.  So
sufficient pressure on UK MEPs now could swing it.

The key amendment: Article 2.1

FFII, along with other digital rights groups, believes that all of the
additional party amendments are important, and should be supported.

Probably the most important of all is Cappato's amendment to Article 2
Clause 1, which would limit the Directive to intentional commercial
trademark and copyright violations -- in contrast to the Trilogue text
which would make the Directive apply to "all Intellectual Property

FFII view: Member States are already bound to enforce intellectual
property rights by the detailed provisions of the TRIPS agreement.  The
powerful "TRIPS-plus" measures proposed are neither needed nor
appropriate to the swapping of Britney ringtones.

This also appears to be the UK Government view.  Lord Sainsbury replied
to House of Lords' concerns about subsidiarity: "Subsidiarity: it seems
likely that amendments will reduce the scope of the proposal so that it
concentrates more directly on counterfeiting and piracy.  Such a change
would allow the proposal to pass the subsidiarity test" (6 Oct 2003).
Otherwise, if the Trilogue text goes through, ultimate authority over a
large swathe of civil law will be transferred to the Court of First
Instance in Luxembourg.

And as Stephen Timms MP, the relevant minister, recently said in his
final sentences closing a debate in the House of Commons, "Enforcement
of rights must be pursued differently, depending on the circumstances.
Lumping together commercial piracy on the one hand and private copying
on the other is unlikely to be helpful in the longer term... Efforts to
increase the understanding of and respect for intellectual property
rights, particularly copyright, is not helped by branding illegal
downloaders as pirates. We must educate consumers about the downside of
sharing copyright works over the internet, but we must not accuse them
all of being criminals". (10 Feb 2004).

Article 10.5a

FFII also particularly supports the EDD group's amendment to Article 10,
which would provide that if a company (eg a large pharmaceutical co; or
perhaps a large software co) deliberately misuses the more extreme
powers of the directive to prolong an effective monopoly, it should face
losing any unfair profits it makes as a result  (as is currently
accepted in UK law).

The unfair profits earned by the would-be monopolist may be far larger
than the direct loss to the competitor; but that is all the monopolist
risks having to pay back under the proposed Trilogue article 10.  If
this is not corrected, it will be a green light for abuse.


FFII believes that all of the non-Trilogue amendments raise important
issues, and deserve proper Parliamentary consideration.

If that means the Directive is not after all stampeded onto the statute
book this month, but has to go back to Parliament for a second reading,
allowing time for more detailed national consideration, then that may
not be such a bad thing.

    James Heald.
UK Co-ordinator, FFII
7 March 2004.

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