When it was sold to politicians in Brussels, the pitch for the directive on
criminal measures aimed at enforcing IP rights in Europe (IPRED2), was all
about commercial piracy and counterfeit goods that endanger health and safety.
The reality has turned out quite different. The current draft directive —
adopted yesterday by a key European Parliament committee — will criminalize a
wide range of activity that is currently lawful and has no connection to
public health or safety. This is happening despite warnings by digital rights and
consumer groups and tech industry bodies that the existing language was overbroad.
Our summary of the continuing problems:
The draft directive still applies to a broader range of intellectual property
infringements than commercial piracy and counterfeiting. As a result, it's
far broader than the current international standard for criminal IP
enforcement — the 1994 TRIPs agreement.
Heavy lobbying has meant that patents are now excluded. The bad news is that
many other IP and IP-like rights are not. The directive applies to "such
intellectual property rights as are provided for in Community legislation
and/or national legislation in the Member States."
What that means is unclear. It expressly includes such the rights as the "sui
generis rights of database makers." And new language adds areas that weren't
previously thought of as intellectual property at all: An amendment now implies
that conditional access regimes for pay TV (currently covered by private
contract law) might now be considered "intellectual property" across Europe.
Individual Europeans still don't have a bright line to follow to avoid
criminal sanctions (which include substantial fines, and, in certain situations,
imprisonment). JURI rejected an amendment that would have limited the
directive to commercial activity done with the intent to earn a profit.
Instead, consumers will now have to decide if their activity is carried out
for "personal and not for profits purposes" [sic] and was done for the purpose
of obtaining "an economic advantage." Making a mistake about that could land
you under police investigation, or even in jail.
The Threat to Industry and Innovation
Many industries now face possible criminal sanctions for legitimate business
activities, thanks to an oral amendment adopted by JURI that ensures that
"aiding or abetting and inciting" intentional intellectual property
infringement must be treated as criminal offences. "Inciting" is not defined.
Like the unclear "inducement' standard introduced by the U.S. Supreme Court's
MGM v. Grokster judgment and the INDUCE bill's (failed) attempt to expand
secondary copyright liability standards, this is likely to create legal
uncertainty and to chill investment in technological innovation.
This lack of clarity is particularly disconcerting given that the directive
provides for destruction of material and equipment used for infringing and the
closure of premises used to commit an act considered an offence under the
For the full summary, FFII have listed the main text (together with the
adopted amendments shown in yellow) here.
Can IP Law Make Good Criminal Law?
Aside from the fundamental question of whether it is good policy to use the
state's policing resources to enforce what are essentially private rights, the
directive's imprecision underlines the key concerns with using the blunt
instrument of criminal sanctions to enforce the nuanced rules of copyright.
Unlike the clear, hard lines of criminal codes, copyright law is often open to
interpretation. Copyright lawyers can't agree on what are "private" and
"personal" uses of copyrighted works. Does "personal use" include sharing a mix CD?
Asking consumers to decide where that line lies in order to avoid criminal penalties
is a heavy demand.
The JURI Committee did adopt several safeguard measures yesterday, including
a provision banning misuse of threats of criminal sanctions, as well as two
exclusions on what will be considered "commercial scale" infringement subject
to criminal sanctions. But it is equally obvious
that the JURI committee had a
chance to introduce clearer limits on IPRED2's effect on law-abiding consumers
and industry and failed to do so.
There's still time for IPRED2 to be fixed. The draft directive now moves to the European
Parliament for a full plenary vote on April 24, and then to the Council. Will
Brussels listen to the hundreds of thousands of citizens this directive will
affect — or will they be content to turn EU citizens into counterfeit