ENDitorial : Constitution by criminalisation

By EDRi · January 31, 2007

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

Instead of scouts cookies, evildoers sell copied Britney Spears CDs
and counterfeit medicines manufactured using child labour, and that
must be stopped, in particular since legit Britney Spears CDs cause
enough harm as it is and everyone is tired of Viagra spam. The
Criminalisation Directive, also known as IPRED2 or the directive on
“criminal measures aimed at ensuring the enforcement of intellectual
property rights”, is officially geared at combating these organised
criminals and terrorists by hitting them where it hurts: fund raising.

The Commission proposed to concretise this aim by going after
secondary telephone directory providers, farmers with fields cross-
pollinated by genetically modified crops, and MP3 player
manufacturers who refuse to pay Italy’s most famous software patent
troll. In spite of a commendable Industry Committee report by David
Hammerstein MEP, the European Parliament currently seems to be headed
towards brandishing every second company as a criminal organisation,
their customers as fences, ISPs as abetters and many teenagers as
common criminals. And all this because the French and the Dutch
rejected the proposed Constitutional Treaty. Now that will surely
make them see the wrongs of their way!

But first things first. The directive starts from the premise that
every infringement of any “intellectual property right”, alias IPR or
exclusion right, is inherently a crime if committed intentionally and
on a commercial scale. Many of these rights, such as design rights,
database rights and utility models, are however not substantially
examined at all, and therefore often invalid. Macrossan just saw one
of its software patents invalidated in a UK court, and a Welsh
vegetarian snack company selling a “Whopper” flapjack is not
necessarily trying to be associated with Burger King’s trademark, let
alone that it is comparable to someone counterfeiting Gucci bags. And
the exceptions to copyright law are equally numerous and complex as
the cases where it does apply.

The World Trade Organisation’s TRIPs treaty from 1995 takes these
points into account and only requires commercial scale “copyright
piracy” and trademark counterfeiting to be punishable by criminal
sanctions. Since both the EU and all EU member states are party to
TRIPs, this is in fact already the case in the entire EU. Any alleged
lacking in enforcement can moreover be brought before the WTO TRIPs
Dispute Settlement Body. This directive also adds that judges must be
able to impose maximum penalties of at least 100,000 to 300,000 Euro,
because according to its supporters fines are currently too low in
Eastern Europe. Surprise: for example Czech Republic already has a
maximum penalty of 750,000 Euro for selling counterfeit goods.

It has become clear that this directive is not really about organised
crime or even about helping Rolex. The reason that we have this
directive at all and that most MEPs have not yet resoundingly
directed it to the dustbin is mainly a political one: competence
extension. Criminal law is currently part of the Third Pillar of the
EU, which means that the Council of Ministers holds all the power and
must decide with unanimity. The Commission and many MEPs would like
it to be transferred to the First Pillar, which would give them
codecision power and reduce the Council decision requirement to a
qualified majority. This is one of the things the Constitutional
Treaty would have taken care of if it had been approved. And as
someone in Parliament told us, “some idiot in the Commission had to
pick this one out of all directives” as spearheading vehicle to get
that change through after all.

Unfortunately, it doesn’t stop there. The music publisher’s
association, the IFPI, handily hopped aboard the Institutional Power
Transfer Express to ensure it pleases at least one other stakeholder.
They said they did not like the initial proposal because it did not
apply to private, not-for-profit infringements. This means they have
to sue in civil courts rather than the police doing the job for them,
which is bad PR. So they started claiming that this directive says it
is ok to download music without permission and that this should be
stopped. In response, Janelly Fourtou MEP, wife of the Chairman of
the Supervisory Board of Vivendi Universal, Nicole Fontaine MEP and
Klaus-Heiner Lehne MEP have tabled amendments in the European
Parliament’s Legal Affairs Committee (JURI) to take out the
“commercial scale” requirement.

Toine Manders MEP even tabled the following amendment:

“2a. Member States shall take the necessary measures to ensure that
any purchase of goods infringing an intellectual property right is
considered as fencing.”

Manders was unable to explain in a radio interview how a customer in
a supermarket is supposed to know whether a product’s packaging
infringes on the trademark of another brand. He did state that he
intends the amendment to apply to downloaders though. “Purchasing”
can also mean “to acquire by effort”, so he may be right. He noted
that he sees this directive as a way to entrench “our European moral
values”, to teach people about “respecting intellectual property”,
although he does not believe it will actually be enforced against
individuals. The IFPI presumably think otherwise.

Normally, JURI would have voted on the tabled amendments on 29 or 30
January. Last week, the vote was however suddenly taken off the
agenda by the Christian Democrats (EPP). The reason turned out to be
that the German government has decided to waste no time in resolving
“the ratification crisis surrounding the constitutional treaty”. They
have started informal negotiations with MEPs for a first reading
compromise with the following basic premise: if the Council gets to
keep the sole decision power over the level of the sanctions, they
will pass the directive and thus effectuate the competence transfer
from Third to First Pillar concerning criminal law as provisioned by
the Constitutional Treaty. The fact that a bunch of companies and
citizens are caught in the crossfire is obviously of secondary

If this manoeuvring sounds familiar, the reason might be that it was
also done with the IPRED1 and Big Brother/Data Retention directives.
In both cases the then Council Presidency made a pre-first reading
compromise with Parliament -in the latter case even behind the back
of the rapporteur – in order to rush through a harshly criticised and
fundamentally flawed directive. And in both cases the official
pretext was also fighting organised crime and protecting the children.

In the end, everything even seems to come together: the German
implementation of IPRED1, the predecessor of the current directive
which allows for very harsh sanctions in case of alleged civil
infringements, explicitly allows for the data gathered via the Big
Brother directive to be used in civil court cases concerning patents,
utility models, trademarks and design rights. The decision of whether
or not that data can be used is taken by a non-specialist judge, who
is not necessarily aware of the validity of the asserted rights or
their scope.

Yes, you too can be the target of an “anti-terrorist” directive, or
even several at the same time. All you have to do is start up a
business and join the knowledge economy. To Lisbon or to Prison? The
way it looks now, you do not decide. The Commission, Council and a
few morality masters in Parliament will do so for you. All you have
to do is think of the children and be afraid of the terrorists, and
everything will be fine.

FFII IPRED2 directive analysis and background information

Radio interviews with Toine Manders (in Dutch only)

German Government Passes “Bill for Improving the Enforcement of
Intellectual Property Rights” (24.01.2007)

IPRED1 directive: overview by FIPR

EU adopts Big Brother directive, ignores industry and civil society

MP3 patents: Sisvel (Italian patent troll) v. Sandisk (11.01.2007)

Trademarks: Burger King v. Wholebake (11.06.2006)

UK Macrossan software patent case (30.10.2006)

(Contribution by Jonas Maebe – Foundation for a Free Information
Infrastructure – FFII)