New Commission directive proposal on IPR

By EDRi · July 14, 2005

On 12 July 2005 the European Commission launched a new proposal for a directive and framework decision on the penal enforcement of intellectual property rights. The Commission proposes to penalise any infringements. According to Franco Frattini, the Commissioner for Justice, “the new measures proposed by the Commission form the criminal law front to the fight against counterfeiting and piracy in Europe.” Though officially aimed against criminal organisations, the proposed measures applies to all types of infringements of intellectual property rights. “All intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements are treated as criminal offences.”

Member states must at least punish such offences with four years’ imprisonment “if the offence involves a criminal organisation or if it jeopardises public health and safety.” The applicable fine must be at least EUR 100.000 to EUR 300.000 for cases involving criminal organisations or posing a risk to public health and safety. The proposal allows Member States to apply tougher penalties.

The directive is a followup to the TRIPS agreement, and supplements Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights. This directive was the subject of intense scrutiny from digital rights organisations and a heated debate in the European Parliament. The harshest provisions, for example on penalising individual file-sharers, were removed from this directive, but now they return in full weight. The new proposal explains: “In addition to the civil and administrative measures, procedures and remedies provided for in Directive 2004/48/EC, criminal penalties also constitute, in appropriate cases, a means of enforcing intellectual property rights.”

As with the 2004 IPR directive, the definition of ‘commercial scale’ is highly ambivalent. It doesn’t require financial benefit, profit, or motive. While Article 61 of TRIPS criminalises ‘intentional infringement on a commercial scale’, the proposed EU Directive would add the “attempting, aiding and abetting, and inciting such infringements” to the list of offences sending a person to prison. This would allow for the prosecution of makers of file-sharing software, but possibly also to the prosecution of leading industrials promoting a slogan like ‘Rip, mix and burn’. Free/Open source software development could be seriously jeopardised as well as generic drug production, by strong-armed legal hassle in stead of civil proceedings.

The proposal is supposed to be a consequence of the Charter of Fundamental Rights of the European Union. “As regards impact on fundamental rights, it should be emphasised that the direct objective of this initiative is to implement Article 17(2) of the Charter of Fundamental Rights which states that ‘Intellectual property shall be protected’.”

Proposal for a directive and framework decision COM(2005)276 (12.07.2005)

Commmission press release (12.07.2005)