Problems with the IP Enforcement Directive Druck mich
Date: 2004-03-12T21:39:42

Problems with the IP Enforcement Directive

The directive on the enforcement of intellectual property rights passed its final stages in the European Parliament on 9 March 2004. This is an important law that will have serious consequences for the development of the Information Society in Europe. It is vital that strong powers are provided to crack down on counterfeiters without adversely affecting ordinary EU citizens.

Amendments from the Legal Affairs committee and discussion with the Council have led to several important improvements to aspects of the legislation. But there are still some key problems that the Member States will have to take into account in their implementation of the Directive to ensure an effective and proportionate piece of law:
  • Article 2: most importantly, the overall scope of the directive has been widened to cover all infringements of any intellectual property right, instead of commercial or significantly harmful counterfeiting and piracy. The latter was the Commission's original proposal, and would have removed one of the main points of controversy in the parliamentary debate.

    Recital 13a limits some of the directive's measures (Articles 7(2), 9(1) and 10(1a)) to infringement committed on a "commercial scale", which is vaguely defined as that "carried out for direct or indirect economic or commercial advantage; this would normally exclude acts done by end consumers acting in good faith." This limitation should apply as widely as possible to non-commercial acts.

    The widened scope risks causing further scepticism about intellectual property law if there is abuse of the directive's strong provisions in cases of non-commercial infringement. This directive should be targeted at organised crime, not teenage file-sharers and their parents.
  • Article 9: the "right of information" to the names and addresses of alleged infringers must be carefully balanced. A court must carefully weigh the evidence of infringement and good-faith intent to bring a case first against the invasion of privacy required. Otherwise this power could be used by companies to track down whistleblowing employees, or hate groups to find out the name and address of the authors of web pages opposing their views. Nor should it impose heavy burdens on Internet Service Providers to monitor their users, as this could increase Internet costs, reduce takeup of Internet services, and hence damage the growth of the Information Society in Europe. ISP customers should be informed when their personal information has been handed over to a third party.
  • Article 20: mandatory criminal sanctions were removed at the last moment from this directive. However, Member States "may apply other appropriate sanctions in cases where intellectual property rights have been infringed." Any other sanctions should be targeted at commercial counterfeiting and piracy, not non-commercial infringement.
It is vital that national implementations take these points into account. This will provide a strong and consistent legal regime across the EU that protects both right holders and citizens' interests. We will continue to analyse the provisions of the directive as it is implemented by the Member States, and develop more detailed recommendations for civil society on these questions.

Our working documents from the development of the directive are also available here.