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Unravelling the IP enforcement debate

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Analysis This week the European Parliament voted to enact the Intellectual Property (IP) Enforcement Directive. This legislative framework for dealing with piracy and theft of coptyrighted goods is now sent to the member states, which have two years to enact laws which comply with the directive.

The vote was welcomed by industry and the EC as readily as it has been condemned by civil libertarians.

Opponents say the directive grants unnecessarily strong, and broad powers, and is a threat to European civil rights. Supporters say they are using scare tactics to block good legislation and the suggestion that these powers will be abused is ridiculous.

It is probably true that some MEPs who would otherwise have opposed the Directive were repelled by the emotionally-charged opposition. Most people will side with an argument that sounds reasoned, and reasonable, rather than warnings of a police state and dawn raids.

What it says

Under the guidelines laid out in the Directive, suspected counterfeiters can have their bank accounts frozen and their homes raided. Tackling large scale counterfeiting will probably get easier, thanks to this Directive; and this is no bad thing.

But the Directive leaves open the powers to the prosecution and sanction to the interpretation of individual states. And this is a problem. Assurances that individual and inadvertent IP infringers will not be prosecuted in the same way as commercial-scale counterfeiters are a major part of the surrounding debate.

The most widely-used illustration of the huge scope of the directive is that it does not rule out prosecution of individual file-sharers.

Compromise clause

Amendment 59, the so-called “compromise” clause, states that the most powerful tools in the Directive (Articles 7(2), 9(1) and 10(1a)) need only be applied to acts “committed on a commercial scale”. So far, so good, but it goes on: “This is without prejudice to the possibility for Member States to apply these measures also in respect of other acts."

But if the Directive is not intended to be applied to file sharers and other non-commercial copyright infringement, why were its backers unwilling to clarify this in writing?

In principle, file-sharing is hardly different from tape-to-tape recordings that we all made when we were kids. This was tolerated mainly because it was small scale, not very visible, and near-impossible to track. Selling tape-to-tape recordings was taken more seriously though, because those involved were profiting from something they had no hand in creating.

The filesharing phenomenon is different though because of the scale of sharing it allows, and it is this huge capacity for music to be copied and shared that has scared the record industry. Because it is so highly visible, the music labels have come out in their own defence, all guns blazing.

As the Directive stands, member states are not required to chase down file sharers, but they can if they want to. Yesterday, Janelly Fourtou, the MEP who guided the Directive through Parliament, issued the following statement: "Only a judge can ask for raids on homes or for bank accounts to be frozen and this would only be where the law has been broken for commercial reasons... This excludes, in principle, acts by the end consumer carried out in good faith". (Our italics.)

Is the European Parliament really keeping a straight face while asking us to trust our governments to respect our civil liberties, on principle?

The Directive was amended during the compromise "Trialogue" (a meeting between the European Parliamnet, the European Commission and the Council of the European Union) to remove any requirement for states to impose criminal sanctions. But the European Parliament is not allowed to dictate criminal law to its members, and member states were always free to introduce criminal sanctions, if they think it is necessary.

Too broad a brush?
The Directive was also widened to protect patents, a move which prompted some MEPs to call for a review. Scottish National Party (SNP) MEP Sir Neil MacCormick said that this inclusion “imperils industries such as free software, generic drugs or even car spare parts”.

He said that while it is “absolutely right” for Parliament to legislation to protect industry from piracy, the scope of the Directive is too broad. “We could end up unfairly penalising the consumer without really getting to grips with large scale breaches of intellectual property," he argued.

Although this is only the first reading in the codecision procedure, the Parliament has reached an informal agreement with the Council of Ministers, which should ensure that the directive is adopted before the European elections in June.

The problem with this Directive is not its stated aim. No one wants to protect organised crime gangs from prosecution, and few would argue that wholesale counterfeiting is a good idea. But this legislation doesn’t address the problem in a sensible way, and does more to protect big companies than consumers.

Nominally drafted to give rights holders more power to go after commercial counterfeiters and pirates, this framework covers IP, and yet fails to define it. It also fails to explicitly limit the situations in which the powers it grants can be used.

It was introduced by a member of parliament who has close family links with the music business. This may be entirely innocent, but it doesn’t look good. Indeed, it has prompted the European President to give assurances that he will look into the issue of familial as well commercial potential conflicts of interest.

The basic premise

Piracy is a serious business, and should be tackled. The EC’s internal market commissioner, Frits Bolkestein, argues that counterfeiting is often more attractive to criminals than drug trafficking and its perpetrators are increasingly linked to organised crime.

And this Directive is about more than software and music: this is about every kind of counterfeiting, right through to whiskies and textiles. Fake goods aren’t just a rip-off, they can be dangerous too.

But in refusing (or neglecting) to clarify the scope and method of implementation of this Directive, the European Parliament has left it wide open to abuse. Laws that are open to such obvious abuse are bad laws, however good the intentions behind them. ®

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