IPRED2

This page is out of date (updating it is on my todo list). Right now, for more up-to-date info, see: [WWW] http://www.fsfeurope.org/projects/ipred2/

(See also: [WWW] http://www.fipr.org/copyright/ipred2.html)

The directive text

A copy of the proposed directive is available here: [WWW] http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf

Information about the directive's status is here: [WWW] http://europa.eu.int/prelex/detail_dossier_print.cfm?CL=en&DosID=193131

This directive is actually a two-in-one:

The Council Framework Decision looks fine, it limits all measures to cases that involve funding organised crime or those which cause a health or safety risk to the public. This Framework Decision is needed so that the EU legislative process has the power to make legislation which involves criminal penalties. The definition of "organised crime" needs to be checked, but the Framework Decision doesn't seem to be being used for getting nasty stuff into law.

The Directive is the nasty part of this double-document. Articles 3 and 4 are short and to the point: intentionally infringing "intellectual property right" of any kind on a commercial scale (which is undefined), or even inciting, aiding, or abetting and such an infringement, can lead to jail time, big fines, and a list of other nasty measures.

Anton pillar orders and Mareva orders do not appear (to me) to be part of IPRED2.

What we can do

What's wrong with the text

Article 3

Here's the text of this short article in full:

Article 4

This article is split in two. For the penalties in part 1 (such as jail terms) the state "shall provide", and for the penalties in part 2 the state "shall provide ... in appropriate cases". Can someone comment on what the difference between the two is? Surely jail terms would only be for "appropriate cases" too (i.e. not for inappropriate cases).

When reading Article 4, remember that Article 3 says these can apply to you even if you only attempted, aided, or incited someone else to intentionally infringe intellectual property rights on a commercial scale.

Related documents

About the legislation/procedure

About the first IPRED, for reference/ideas

About the relationship between illegal copying and organised crime

IFSO communications on this issue

These won't actually live here, they'll get a page of their own each, but I'm dumping the text here as a temporary site until I check the naming conventions for letter-pages. Here's the current text:

The TODO list for the following letter

The text of what'll be our first letter

A letter should be sent to Anne Coleman-Dunne and copied to Michael English - both in Entemp.

They will have input into both the Directive and the Council Framework Decision.

If we mention: * the problems from the FSFE page * one or two more if we can think of some * an explanation of why "intentional" and "commercial scale" are not

* comment on the difference between current Irish law and this proposal.

then we'd have a great letter. But none of these are show stoppers, so sending something should be the priority.

Text of a previous letter, for cannabalising

Irish Free Software Organisation (IFSO) comments on IPRED2 proposal

The European Commission has recently published a draft for a directive[1] "on criminal measures aimed at ensuring the enforcement of intellectual property rights", COM 2005(276).

There are two justifications. The first is that "counterfeiting and piracy ... [appear] to be increasingly linked to organised crime."

The second is a citation from Article 17(2) of the Charter of Fundamental Rights which states that "Intellectual property shall be protected", however the Commission's text throws Articles 48 and 49 of that Charter out the window (Presumption of innocence, and proportionality of punishments).

IFSO would like to point out that giving rights-holders increased access to the resources of law enforcement agencies and introducing harsh punishments for broad categories of activity is not only inefficient but also fuels activities that are harmful to society.

As with the issue of software patents, the USA provides us with excellent evidence of the danger as similar legislation was enacted there a number of years ago. There, a company called SCO has accused IBM of violating their copyrights by mixing some SCO-owned software code into the kernel of the GNU/Linux operating system. SCO claims that all users of GNU/Linux have to pay them licensing fees.

This case has been going on for years and many distributors of GNU/Linux have be dragged into it. The Free Software Foundation, which although it doesn't hold the copyrights to the kernel of GNU/Linux, it does hold to the copyright to the largest part of the operating system, and others have had their time wasted by broad subpoenas. Software users have been scared away from switching to GNU/Linux because of perceived uncertainty of it's legal status.

Despite SCO's numerous published claims, and all its many appearances in court, they have yet to have even a single claim proven. Not only this, but it has recently come to light[2] that in 2002, when SCO conducted a study to search for SCO-owned code in the kernel of GNU/Linux, the researchers concluded that they "had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever".

Also relevant is that this company which is damaging the reputation of GNU/Linux and businesses based on it is funded by Microsoft[3]. (GNU/Linux is the #1 competitor to Microsoft's Windows operating system.) A memo, whose authenticity has been confirmed by SCO[4], shows that Microsoft have given SCO more than $100 million in funding.

Trying to prevent organised crime is a good goal, but the Commission's draft text will have the opposite effect: it will prevent legitimate commerce in the EU and it will provide business incentives to abuse of the law for market-place gain.

The current text allows:

[Better find the problems and potential with this directive]

IFSO requests that:

1. Disputes about patents and trade secrets be taken out of the scope of the directive altogether. The measures and justifications are completely inappropriate for such issues.

2. The Directive should only apply where there is intent to infringe for large scale commercial gain. Small scale gain can't possibly fund organised crime and should be treated as a civil offence.

3. That issues of copyright should be considered separately to issues of trademark, and to geographical indications, and plant types, and patents. Legislation for "intellectual property" is too broad to be sensible.

4. Harsh measures that are justified by possible danger to consumers should be limited to cases where real danger to consumers is possible - e.g. imitation pharmaceuticals.

5. Measures justified by prevention of counterfeiting and "piracy" should be limited to voilations of copyright and trademark law.

6. Terms such as "piracy", have no place in EU legislation. Not only is it pejorative but it propogates a link between copying and stealing.

last edited 2005-10-06 01:06:45 by CiaranOriordan