March 20, 2007 | By Gwen Hinze

Key Vote on EU Criminal Sanctions Directive Going Ahead Amidst Secrecy

The European Parliament's Legal Affairs Committee (JURI) meets today in Brussels to vote on the proposed EU Directive on Criminal Measures aimed at ensuring the enforcement of Intellectual Property Rights. The proposed Directive requires the 27 EU Member States to impose criminal sanctions for all intentional infringements of Intellectual Property rights done "on a commercial scale" and, more disturbingly, for aiding, abetting and inciting such intellectual property infringements.

There are many reasons to be concerned about this directive and today's JURI Committee vote. First, the Directive would criminalize both consumers' non-commercial uses and legitimate business activities by creating a new basis for secondary liability for intellectual property infringements - "inciting" infringement. Second, the Committee will vote today on a set of previously tabled amendments to the Directive that are riddled with imprecise language, and frequently cancel each other out, and thus offer little hope of remedying the serious deficiencies with the Directive. Third, in the lead-up to today's vote there have been concerted efforts to modify or remove the key definition that would have appropriately limited the directive's scope to "commercial scale" infringement. And if all that weren't enough, in a decidedly non-transparent process, a new set of oral amendments that will be voted on today, have been negotiated in secret over the last week. One of the leaked amendments would have added the concept of "accepting infringement" as the basis for liability, creating an unprecedentedly broad scope of secondary liability.

The rest of the amendments remained unclear on Sunday evening, when EFF joined with the diverse group of organizations that have previously raised concerns about the Directive, and sent the following open letter to the Members of the European Parliament's Legal Affairs Committee.

We will be back later, to report on the outcome of today's vote.

UPDATE: The JURI Committee has voted to reject key amendments on each of the points raised below. As a result, the Directive still:
- criminalizes all intellectual property infringement, not just commercial-level copyright piracy and counterfeiting;
- raises secondary liability concerns for industry; and
- covers consumers' non-commercial activity.

But the fight is not over. The Directive now heads to the European Parliament for a full "plenary" vote on April 24. We'll be back with more analysis in the coming days.

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March 18, 2007

Dear Members of European Parliament's Legal Affairs Committee,

As the Legal Affairs Committee meets on Tuesday to vote on the draft report for the proposed directive on Criminal Measures aimed at ensuring the enforcement of Intellectual Property Rights, we urge you to consider the impact of your actions on European consumers and the future of technology innovation.

Since we have not received the final voting list, nor the precise language of the oral amendments that we understand will be proposed by the Rapporteur tomorrow, we write to you today, on behalf of our thousands of European constituents, to draw your attention to our four major concerns with the preliminary voting list made available by the IP-JURI Secretariat on Wednesday 14 March (attached). We hope to be of more precise assistance before the vote takes place.

We ask the Committee to ensure that only appropriate activity is penalised and that legitimate consumer and business activities are not. Accordingly, we ask you to vote to:

- Limit the scope of the directive in Article 3 to clear cases of copyright piracy and trademark counterfeiting, in accordance with the international standard set in the Trade-Related Aspects of Intellectual Property Agreement and the recommendations of The Max Planck Institute for Intellectual Property, Competition and Tax Law, and a broad range of stakeholders including EICTA, ETNO, LACA, FIPR, and BEUC. There is no defensible policy justification for imposing criminal sanctions for infringements of e.g. database rights; at the same time, doing so will have significant unintended consequences;

- Avoid creating an unprecedented scope of secondary liability for Internet intermediaries, ICTs, software vendors and a range of legitimate business activity, by removing the words "aiding or abetting and inciting" from Article 3. Inclusion of the words "inciting such infringements" would create an entirely novel category of secondary liability not found in Member States' national law and subject legitimate and currently lawful business activity to criminal sanctions. The standard for criminal complicity or "aiding or abetting" is most appropriately dealt with as a matter of Member States' national law;

- Adopt a precise and appropriate definition of "on a commercial scale" in Article 2 as commercial activity done with the intent to earn a profit directly attributable to the infringing activity, as recommended by the Max Planck Institute. The definition should expressly and clearly exclude non-commercial consumer activity. In particular, we urge the Committee to reject the proposed oral amendment including "acceptance of such infringement", which would also create new and unwarranted secondary liability for legitimate business activity;

- Adopt a definition of "intentional infringement" in Article 2 that reflects the high specific intent (mens rea) requirement of criminal law. It is only appropriate to criminalise deliberate and conscious acts done with knowledge and bad faith intent to infringe intellectual property.

We urge you to consider these matters carefully. The way in which you vote on Tuesday will affect the lives of millions of European consumers and the future of technology innovation in Europe for decades to come.

Thank you for your consideration.

Erik Josefsson
European Affairs Coordinator
Electronic Frontier Foundation
BP 1344, 1000 Bruxelles 1, Belgium


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