BW )(: IPRED2 passes European Parliament was [[ffii] European Parliament Criminalises Businesses, Consumers, Innovators]
Matthew Toseland
toad at amphibian.dyndns.org
Tue May 1 17:45:13 BST 2007
IPRED2 has passed first reading in the European Parliament. It may be
adopted as-is in Council, or it may have to go through the full
codecision process; if the latter it could still take a long time. Once
it has been enacted, member states have 18 months to transpose it into
national law via primary or secondary legislation.
Impact:
- Any commercial scale, intentional copyright, trademark, trade name,
database right or design right infringement is a criminal offence.
- This *does not include patents*, so the EU software industry as a
whole will not be criminalised.
- *Inciting, aiding and abetting, and attempting* such is also a
criminal offence.
- Full range of criminal penalties apply, including judicial winding up
and prison time.
- This will most likely put me out of a job! Freenet has always been
designed to work "underground" in the long run; this law means we are
on a clock. This is one reason I'm not involved in BW as much as I'd
like to be. IPRED2 is likely to criminalise both working on Freenet
and running it, as I understand it. It might even be interpreted so
broadly as to be a problem for a wider range of OSS.
- BW itself *should* be okay: We are a "mere conduit" under 2000/31/EC,
this is explicitly preserved in IPRED2. As long as we provide physical
address, email address, name etc to customers and authorities (is
there a licensing scheme for ISPs?), and comply with court orders (it
appears to allow for a court order to block specific external content,
I don't think this has happened yet though, there may be another law
which prevents them). According to one page on wikipedia 2000/31/EC
provides a takedown procedure, but I can't find it either in the text
or in the wikipedia page.
- It is essential that we don't do anything to jeopardise our "mere
conduit" status! Linking to illegal torrent sites for example would be
a *bad* idea.
- It is likely that uploading pirated movies etc will become a criminal
offence. So will telling your friends to, and e.g. installing Kazaa on
their computer. The police will be obliged to investigate even without
a complaint from the owner, and they may involve the owner in their
investigations (though there are some safeguards). Most likely
bittorrent and other modern P2Ps will fall into this category. Pure
downloading *may* still be a civil matter depending on the courts'
interpretation of "on a commercial scale" (the current definition is
vague and may be removed by the Council).
- Fortunately there is no (statutory) duty to report crimes in general
in UK law, only for specific offences (which don't presently include
copyright offences afaics!).
----- Forwarded message from FFII Press Center <media-help at ffii.org> -----
From: FFII Press Center <media-help at ffii.org>
To: news at ffii.org
Subject: [ffii] European Parliament Criminalises Businesses, Consumers,
Innovators
PRESS RELEASE -- [ Europe / Economy / Innovation ]
========================================================================
European Parliament Criminalises Businesses, Consumers, Innovators
========================================================================
Strasbourg, 25 April 2007 -- The European Parliament today accepted the
IP Criminal Measures directive after its first reading in a vote of 374
to 278, and 17 abstentions. It left several unexamined rights in the
scope, and threatens to criminalise consumers and incriminate ISPs.
Recommendations from an alliance of libraries, consumers and innovators
were not followed, although Parliament was clearly divided on several
issues.
A summary of the adopted text follows:
* Apart from copyright (piracy) and trademarks (counterfeiting), also
the unexamined database and design rights are included in the scope, as
well as trade names (which do not fall under Community Law). Patents and
utility models (petty patents) are excluded;
* A weak definition of "commercial scale" was adopted. It does not
clearly protect consumers and the young generation;
* Inciting an IPR infringement is criminalised. This introduces
liabilities for software and service providers;
* Abuse of the measures provided by this directive are punishable,
"fair use"-like actions such as infringing for the purpose of criticism,
research and reporting are removed from the scope, and the neutrality of
the investigations should be safeguarded.
"Terrorists illegally copying and selling phone directories will
probably not sleep very well tonight. Neither will spare parts makers
who, according to Parliament, should risk criminal penalties if they
infringe on a part's design right. It is very strange that the
rapporteur insisted on having these unexamined database and design
rights included in the scope", said Jonas Maebe, FFII analyst.
"Today, 'inciting' is only criminal in some member states, and in
exceptional cases such as hate speech. Elevating IPRs to the same level
is a scary development. The inciting clause is also reminiscent of the
US 'Induce Act', which threatened to make MP3 players such as the iPod
illegal", Maebe added.
He continued: "On the positive side, Parliament did decide that abuse of
these misguided measures has to be punishable, and that the neutrality
of investigations should be safeguarded. It also explicitly mentioned
several statutory exceptions to IPRs, where criminal measures should not
be applied."
"We are also thankful for the strong support our position received from
the Greens/EFA and GUE/NGL groups, as well as from several Members of
the EPP, PSE and ALDE groups. A number of Members from the EPP and PSE
groups afterwards concurred that the directive did not get the time it
deserved for discussion, and that many Members became aware of its
dangers too late", Maebe said.
The directive now goes to the Council for its first reading. Several
Council members, such as the Dutch and UK governments, have already
expressed serious concerns about the scope and nature of this directive.
Maebe concluded: "We hope that they will take the joint recommendations
of law experts and civil society into account more fully."
========================================================================
Background information
========================================================================
The Commission introduced the Criminal Measures IP directive, also known
as IPRED2 or Criminal Enforcement directive, as a way to combat
organised crime and terrorism. It would do so by turning all
intentional, commercial scale infringements of all IP rights into a
criminal offence.
The problem with this logic is that very few infringements have anything
to do whatsoever with criminal activities, let alone with terrorism.
Furthermore, the TRIPs treaty already requires criminal measures against
commercial scale copyright piracy and counterfeiting, and in most other
cases civil law is more appropriate.
The directive is also controversial because it is the first time that
the European Parliament is co-legislating criminal law in the EU to such
an extent. This also means that individual governments lose their veto
power when the directive will be treated in the Council.
========================================================================
Links
========================================================================
* Examples demonstrating the consequences of the adopted text
http://action.ffii.org/ipred2/Plenary1_Tabled_Amendments/Consequences
* Overview of the tabled amendments
http://action.ffii.org/ipred2/Plenary1_Tabled_Amendments
* Result of the vote
http://action.ffii.org/ipred2/Plenary1_Tabled_Amendments?action=AttachFile&do=get&target=plen1-results.pdf
* Coalition of libraries, innovators and consumers criticises directive
http://press.ffii.org/Press_releases/Carte_Blanche_criminal_law_a_threat_to_innovation
* UK Government position on the tabled amendments
http://action.ffii.org/ipred2/UK_Government_Advice_for_Plenary1
* Dutch Parliament says No to European criminal law against IP violations
http://press.ffii.org/Press_releases/Dutch_Parliament_says_No_to_European_criminal_law_against_IP_violations
* Permanent link to this press release
http://press.ffii.org/Press_releases/European_Parliament_Criminalises_Businesses%2C_Consumers%2C_Innovators
========================================================================
Contact information
========================================================================
Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion at ffii.org
(French/English)
Ante Wessels
FFII analyst
+31 6 100 99 063
ante at ffii.org
(Dutch/English)
Jonas Maebe
FFII analyst
jmaebe at ffii.org
(Dutch/English)
========================================================================
About the FFII -- http://www.ffii.org
========================================================================
The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 850 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.
_______________________________________________
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(un)subscribe via https://lists.ffii.org/mailman/listinfo/news, or contact
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