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EC leaves personal use out of criminal IP laws

Goes after 'incitement' instead

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Criminal sanctions for copyright infringement moved a step closer to reality in Europe this week, as the European Commission's committee for legal affairs voted to pass a draft of a directive affectionally known as IPRED 2.

The directive, being herded through the legislative process by socialist MEP Nicola Zingaretti, is actually titled Criminal measures aimed at ensuring the enforcement of intellectual property rights.

The directive has been drafted to clamp down on purveyors and purchasers of fake goods - handbags, medicines and so on. Critics argue that, as with much European legislation, early drafts have been clumsily drafted, and will end up criminalising ordinary people for non-commercial copyright infringements.

Arguments over the definition of what constitutes "commercial scale" infringement have been drawn out and complicated. Eventually, the committee agreed to leave copying for personal use uncriminalised. It states that to be criminal an infringement must be "a deliberate and conscious infringement of the intellectual property right for the purpose of obtaining commercial advantage".

Lobby groups for rights holders are unsurprisingly unhappy with this clause. But the Business Software Alliance says it is also unhappy with the "incitement to infringe" clause. This might give Microsoft's execuitives pause for thought.

In a rare case of the two bodies agreeing, analysts at the FFII (Foundation for a Free Information Infrastructure) argue that this clause will hamper innovation in Europe.

In a press statement, the group warns: "This could result in software providers being held liable if their software does not actively prevent copyright and database right violations by its users."

In a letter to the Members of the European Parliament, the FFII wrote that the Legal Affairs Committee draft report for the Criminal Measures IPR Directive is, "despite several delays, not ready for adoption".

Patents have been excluded, but so-called utility models - unexamined patents - have been left in.

Sanctions for deliberate, commercial scale infringement, will include fines of up to €300,000, confiscation of equipment used in the infringement, and even imprisonment. ®

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