Draft position EU Council on IPR Enforcement

By EDRi · January 15, 2004

The Irish Presidency of Council of the European Union has published a Draft Common position on the planned Directive on the Enforcement of Intellectual Property Rights. On 13 January the Document was discussed in Strasbourg with interested Members of the European Parliament and with the Commission officials who had drafted the initial proposal for the Directive. The Council paper unites many of the worst proposals on this Directive so far, while carefully working around most of the good ones. It has an extremely wide scope, like the Commission proposal, and includes patents, which were deleted from the scope by the Parliament’s Legal Affairs Committee.

Unlike the version adopted by the Parliament, it calls for penal sanctions to be imposed on all kinds of Intellectual Property Rights Infringements. The text proposed by the Council on this issue is similar to an amendment suggested by the Phonographic Industry Association, IFPI, and initially tabled erroneously by Austrian Green MEP Mercedes Echerer. The Committee ended up, however, adopting another amendment by Mrs. Echerer calling merely for “appropriate sanctions”. While it adopted the reference to limitations in the E-Commerce and Copyright Directives, the Parliament deleted a reference to the regulations on reverse engineering for compatibility in the EU Software Directive.

Council as well as Parliament representatives have made it clear that the current draft of the Council position is still in a fairly early stage of preparation and that it will most probably take more meetings to find an agreement. This will be of importance for all the actors involved, because they want to see the Directive adopted before the enlargement of the European Union, in order not to give accession states, presumed to be the realm of piracy, a say in the drafting. If the Parliament should adopt a position the Council considers unacceptable, there will not remain enough time to go into a second reading before the dissolution of the Parliament in the first week of May. This puts pressure on the Council, but also on the Rapporteur, French Conservative Janelly Fourtou, who shares the Council’s wish to adopt the Directive before the end of the term, to go ahead with negotiations and to find compromises. The next trilogue meeting will already take place next Tuesday 20 January in Brussels. It is almost certain now that the vote in the Parliament’s Plenary will be delayed at least until the session in early March and maybe even to the one at the end of that month.

‘Partially accessible’ version (with all footnotes deleted) of the Draft Council Common Position (19.12.2003)

(Contribution by Andreas Dietl, EDRI EU affairs director)