EU adopts contested IPR Enforcement Directive

By EDRi · March 11, 2004

On 9 March the European Parliament finally adopted the Directive on the
Enforcement of Intellectual Property Rights. The Strasbourg Plenary passed
the text, which had previously been agreed behind closed doors by a
handful of MEPs in no less than 11 informal meetings with the Council,
without any amendment. Although majorities were much thinner than the
rapporteur, French Conservative Janelly Fourtou, would have had them ­
only 277 MEPs voted down the line for the so-called compromise of the
rapporteur, while 240 wanted to amend it one way or another -, the
Directive is now more than likely to pass in the First Reading procedure,
which is foreseen for uncontroversial reports.

The Directive applies indiscriminately to all infringements of all
intellectual property rights, including patents. A limitation to
infringements committed for commercial purposes or causing significant
harm, which was still present in the Commission’s proposal, was deleted.
It was re-introduced only for certain measures, such as the freezing of
bank accounts.

Other draconian measures such as search-and-seize raids carried out by
rightholders like collecting societies, in civil law cases and before the
merits of a case have even be evaluated by a judge, can still be applied
to private small-scale infringers.

The only good new is that the article calling for penal sanctions for
infringements of an intellectual property rights, which was still present
in the Commission proposal and in earlier drafts of the Council Common
Position, has been replaced by a more general formula calling for
‘appropriate sanctions’ and a recital stating that these ‘may include
penal sanctions’.

The EU Council of Ministers is likely to adopt the report in today’s
Competitiveness meeting, allowing for it to be published in the Official
Journal of the European Union within a few weeks’ time, and to become
effective before the enlargement of the European Union on May 1. Only
Sweden, Luxembourg and Greece had previously opposed the Council Common
Position, which is identical to the text now voted in the European
Parliament; Italy abstained.

There was great pressure to agree on the directive before the accession of
new EU member states. It was widely expected that these countries would
have opposed in particular the measures under Article 7 to 10 of the Draft
Directive, fearing a chilling effect on the legal possibilities for their
companies to produce compatible products and compete with dominant
industries in the old EU.

In the aftermath of the vote, spokespersons of the MEPs backing the
agreement with the Council such as UK Labour EP press officer Adrian
McMenamin, started an offensive aimed at portraying the opponents as
‘using scare tactics throughout’. According to McMenamin this lead to
“consistently alienate the vast majority of legislators in the European
Parliament”. This claim is clearly proven wrong by the outcome of the vote
in the Parliament. Though the official position of the tree biggest groups
in the Parliament was to oppose these amendments, up to 38 per cent of
MEPs voted for the amendments drafted by EDRI-member FIPR, tabled by the
Italian Radical Marco Cappato.

After publication of the Directive in the Official Journal, the soon-to-be
25 EU member states will have 18 months to implement the Directive into
their national laws.

EDRI/FIPR overview of the debate, including vote report per MEP

Statements by McMenamin in The Register (10.03.2004)

(Contribution by Andreas Dietl, EDRI EU Affairs Director)