-- FFII News Update -- 25 February 2004 -- +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ +++ -- For immediate release -- Please redistribute widely

As expected, the proposed text for the Intellectual Property Rights Enforcement Directive (IPRED) was nodded through by the European Parliament's Legal Affairs committee without a vote on Monday afternoon.

The Directive is now scheduled to be debated by the full Parliament on Monday 8 March, and voted on (with amendments possible) on Tuesday 9 March, ready to be approved by ministers on Thursday 11 March.

A report of the MEP's discussion can be found at: http://www.ipjustice.org/CODE/Report_of_JURI_Committee_Meeting.html One notable comment is that of Malcolm Harbour (UK Conservative MEP), who said that:

"This Directive, contrary to public presentation, is not mainly about the commercial interests of the software industry, but about important brandnames that are an incentive for criminal elements (tangibles)... When getting e-mails MEPs should reply that the Directive is not about Free Software and not even about the digital world. It should pass in First Reading".

This should be read in the context of Article 2 of the Directive, which states that:

"...the measures and procedures provided for by this Directive shall apply, in accordance with Article 3, to any infringement of intellectual property rights as provided for by Community law and/or by the national law of the Member State concerned".

A page by Ian Brown of the Foundation for Information Policy Research (FIPR), outlines some of the measures in the directive and how they could be used by claimed rightsholders against small software projects: http://www.ffii.org.uk/ip_enforce/oss.html

EFF Alert =========

Electronic Freedom Frontier (EFF) today also issued a briefing about the directive, and an online petition which will be sent to key MEPs, http://action.eff.org/action/moreinfo.asp?item=2873 http://action.eff.org/action/index.asp?step=2&item=2873 "The European Parliament is poised to adopt a controversial directive on Intellectual Property Rights Enforcement that would give rights-holders incredibly powerful tools in their fight against intellectual property infringers. While this might sound like a good idea at first, a closer look reveals that the directive doesn't distinguish between unintentional, non-commercial infringers and for-profit, criminal counterfeiting organizations. If this directive is adopted, a person who unwittingly infringes copyright -- even if it has no effect on the market -- could potentially have her assets seized, bank accounts frozen and home invaded. Don’t let these tactics become the latest weapons in intellectual property rights-holders' destructive war on "piracy". "The key to the directive is the definition of 'commercial scale'. Several of the more extreme new remedies are only available for commercial- scale infringement. However, this is largely undermined by the definition in new recital 13a of the directive, which states, 'The acts which are committed on a commercial scale are those carried out for direct or indirect economic or commercial advantage'.

"Although it goes on to say, 'This would normally exclude acts done by end consumers acting in good faith,' the meaning of 'indirect economic advantage' is unclear and the directive is not limited to intentional infringements. Therefore, there is concern that rights-holders will be able to use the new tougher penalties against consumers who accidentally or unknowingly infringe, including those who commit minor infringements without any commercial purpose or impact."

FFII view ========= FFII stands by its previous statements about the Directive, as picked up for example in this Slashdot discussion: http://yro.slashdot.org/article.pl?sid=04/02/20/216227 In particular FFII draws attention to the proposal to make "Anton Piller" orders available for all alleged IP infringements, without even the proposed restriction to commercial scale. Currently these measures are unknown outside the UK and France. Furthermore, in the UK, after very strong criticisms from the most senior judges, a strict new code of practice was brought in in the early 90s which cut the number of applications granted by a factor of ten. "We are talking about unannounced dawn raids by private security firms, piling in with legal authority and seizing entire computer systems and filing cabinets full of documents. That is a terrifying and destructive experience for a small firm," explains FFII's James Heald.

That is why FFII is arguing that such measures should only be available in the most extreme circumstances, and where there is clear evidence of a deliberate knowing intent to infringe for commercial gain on a commercial scale. Such measures are simply not appropriate where there is no such deliberate piracy, and no such emergency, in cases as complex as those in patent law and disputed ownership of confidential information/trade secrets, which routinely can take five years in court.

"FFII says that without better defined safeguards the Directive will lead to a far more agressive, lawyer-driven legal environment for creative businesses. Having seen how similar legislation is used in the United States, FFII fears that it will provide the perfect means for agressive litigators holding dubious intellectual property rights to "pull a SCO" and use the powers of the Directive to seriously harass and damage small open-source projects and innovative businesses".

FFII believes that:

1. Disputes about patents and trade secrets/confidential information should be taken out of the scope of the directive altogether. The draconian measures being discussed are completely inappropriate for such complex disputes.

Ideally the directive should be limited back to its original proposed scope, namely commercially organised, fully intentional, copyright and trademark infringement.

2. The Directive should only apply where there is intent to infringe for commercial gain on a commercial scale. It should not apply unless there is good evidence of recklessness or a deliberate knowing intention to infringe.

3. Articles 7 to 10 should even then only apply in exceptional cases. It should be clearly stated in the Directive (as at the moment it is not) that they are not intended to become automatic standard procedure in all IP disputes.

*** FFII urges all European citizens to contact their local constituency MEPs as soon as possible, to make them aware of the dangers of this Directive. ***

Contact details for UK MEPs can be found at: http://www.europarl.org.uk/uk_meps/MembersMain.htm

James Heald, UK co-ordinator, FFII

http://www.ffii.org.uk/ip_enforce/ipred.html

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