You'll know from James Heald's update last week, that the European Parliament will vote on 8.3.2004 on the enforcement directive. The rapporteur, Mme Fourtou, has written to MEPs asking them to support the Council position. Below is the extract which deals with OSS and further below is the full text, fyi. A counter argument is currently being prepared by FIPR/FFII and others, as well as amendments by friendly MEPs and a rally is planned in Strasbourg for the vote. The good news is that in Article 2 (scope), the list of directives not affected now includes the software directive (91/250/EEC), as requested by IFSO in its letter to Mary Harney. The bad news is that in the latest text 16.2.2004, it adds "in particular Articie 7", special measures of protection. IFSO had asked for Arts 5 & 6 exceptions and decompilation to be singled out. One step forward, half a step back... Apologies if you've got this text already.
Teresa
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Extract
The Directive supports interoperability and open source software models. The proposed Directive will not undermine the ongoing development of open source software in the EU. First it does not affect the 1991 Software Directive. Thus the acts of reverse engineering to achieve interoperability that have been permitted under the Software Directive for over a decade will continue to be permitted. Indeed, any conduct permitted by the Software Directive will still be permitted after the adoption of the Enforcement Directive. Moreover, enforcement of IPRs is good for OSS developers just as it is for commercial software developers. Obligations regarding the use of open source software are established in the respective OS licenses and grounded upon IPRs . The ability to enforce these IPRs is a critical element in maintaining the open source system. Failure to achieve a minimal harmonisation of IPR enforcement rules in an enlarged EU will expose software developers � both commercial and open source � to situations in which they are unable to enforce their respective rights.
------------- Full text:
EU Directive on measures and procedures to ensure the enforcement of intellectual property rights
I ask you to support the Council Political Agreement and the reasons for that are:
The Council Political Agreement should be adopted in first reading. Intellectual property is the foundation of human creativity and innovation. In Europe, over 5% of the GDP is generated through creative works. Millions of citizens directly depend upon intellectual property protection for their livelihood. Many more benefit from its contributions. Yet widespread counterfeiting and piracy put European consumers and creators at risk. These activities steal jobs and tax revenues from economies. They hamper the growth of legitimate online services and threaten the well-being of consumers. The EU has been considering acting since 1998, when the Commission first released its Green Paper on the problem of counterfeiting and piracy in the EU. In 2000, the European Parliament agreed unanimously that strong action was needed. The proposed Directive is an opportunity to give meaning to this commitment and ensure that creativity is fostered throughout the enlarged Community�s 25 Member States. Now is the time for the European Parliament to act by adopting the Council Political Agreement in first reading.
The Council Political Agreement should not be further weakened. The Council Political Agreement is not as far-reaching as the Legal Affairs Committee might have hoped. While it reflects some best practices and remedies already existing remedies from the Member States, the Agreement is less effective in some areas than existing rules in the Member States. It creates a bare minimum in terms of meaningful legislation that should not be further weakened. It is, however, an important first step toward eliminating counterfeiting and piracy in the EU. It brings the EU closer to achieving the Lisbon goal of making Europe the world�s leading knowledge-based economy. Ultimately, its adoption will send an important signal to countries outside the EU about the EU�s commitment to creativity and innovation.
No one will go to jail as a result of the proposed Directive.
The Political Agreement adopted by the Council does not establish criminal penalties. It is a purely civil instrument. No one will be going to jail on the basis of this text � despite what some have said. The criminal penalties initially contemplated by both the Parliament and the Commission have now been abandoned. As conceived by the Council, the Directive will not impose harsh criminal sanctions on individuals. It does not provide for any of the criminal remedies available under the US Digital Millennium Copyright Act (DMCA).
The Directive�s measures do not apply without restriction. Consistent with the Legal Affairs Committee�s Report and the TRIPs Agreement, the Council proposal permits effective action against any acts of infringement of IPRs. This does not mean that the Directive�s measures now apply without restriction, however. Instead, under the Council Agreement, certain Articles of the Directive (Articles 7(2), 9 and 10(1)(a)) only apply where the conduct involved is on a �commercial scale�. This approach provides for the limits that some have demanded and excludes acts done by end consumers acting in good faith.
The Directive provides a �right of information� that is balanced, limited and that fully and appropriately respects individual privacy. Some have suggested that the �right of information� (Article 9) could lead to abuse and potentially intrude on individual privacy. This is not true. Article 9 includes several safeguards against abuse. First, the Council Agreement limits this right to conduct occurring on a �commercial scale�. Second, requests for information must be �justified and proportionate�. Most importantly, only a judicial authority can order that information be provided. Finally, use of the measure must not prejudice rules on confidential information, on treatment of personal data, and on the right against self-incrimination. And as with all measures in the Directive, the right of information is subject to the general requirement in Article 3 that measures be fair and proportionate. Given these many safeguards, ISPs can be assured that they will not be flooded with numerous and potentially unfair requests for information. And individuals can be confident their privacy will be respected.
Existing intellectual property rights and exceptions are unaffected by the Directive. The EU has a long-established and well-balanced framework of intellectual property legislation which includes the 1991 Software Directive and the 2001 Copyright Directive. The proposed Enforcement Directive respects this framework, as it should. Article 2 of the proposed Directive states unequivocally that the Directive does not affect existing Community legislation on intellectual property, including the Software and Copyright Directives. Because the proposed Directive does not change the substantive IP rules, conduct that did not infringe an intellectual property right before the adoption of the proposed Directive will not infringe one after the Directive�s adoption. The proposed Directive does not create new or different rights, nor does it alter the exceptions to these rights. Instead, the proposed Directive simply defines workable tools needed to enforce existing rights, as the EU is required to do by the WTO TRIPs Agreement.
The Directive does not require that Internet Service Providers �police� their networks, nor does it subject ISPs to new or greater liability for illegal activity occurring on their networks. Some have suggested that the Directive will impose undue burdens on Internet service providers (ISPs), to the detriment of the Information Society. The rules relating to the liability of ISPs for illegal content carried on their networks are established in Articles 12-15 of the 2000 �E-Commerce Directive�. These rules are fair and workable and reflect a balance among many competing interests. They have worked well in practice. The proposed Directive respects those rules � as it should. Article 2(3)(a) of the proposed Directive expressly states that the Directive shall not affect the E-Commerce Directive and, more particularly, shall not affect Articles 12-15 of the E-Commerce Directive. This means that the existing rules on ISP liability will not change. And it means that ISPs will not be required to monitor or �police� their networks. There are many other safeguards for ISPs (and others) in the proposed Directive. For example, with regard to the right of information, requests for information must be justified and proportionate. Other measures in the Directive are similarly limited. These limitations ensure that ISPs will not be faced with limitless requests for injunctions, demands for information or seizure of their equipment.
The Directive is good for consumers and respects their legitimate expectations. Some have suggested that this Directive is bad for consumers. First and foremost, we must remember that it is counterfeiting and piracy that are bad for consumers. It is consumers who are the real victims of counterfeiters. They buy products that they believe to be genuine, only to discover that they have been misled. In the most extreme instances, consumers can be physically harmed by counterfeit products. It is also important to note that the Directive itself includes safeguards for consumers and preserves their legitimate expectations. For example pursuant to Article 3, the application of the Directive�s measures must be proportionate in all instances. Article 2 make clear that the private copying exception as established in the EU Copyright Directive remains unaffected.
The Directive fully respects EU data privacy laws. The EU is committed to protecting individual privacy. The proposed Directive respects this commitment. Over and again, its measures require that privacy be fully respected. For example, any order made under Article 9 (the right of information) must not prejudice provisions on the treatment of personal data. A judicial authority must be involved, further ensuring that privacy is respected. Other provisions are similarly limited. We must recall, however, that privacy should be a shield rather than a sword. Those who are committing illegal acts must not be allowed to cloak themselves behind spurious claims to privacy.
The Directive is good for SMEs and mindful of EU competition laws. Some have suggested that this Directive will stifle competition in the EU and/or make the EU an unattractive forum for SMEs. To the contrary, strong rules on enforcement will enhance competition. The Directive itself contains safeguards to ensure that SMEs are not prejudiced by its application. As a general rule, Article 3 instructs Member States to apply the Directive in a manner that avoids the creation of barriers to legitimate trade. The measures themselves also include safeguards against abuse. For example, the Directive�s rules on civil ex parte (surprise) searches (Article 8) requires that judicial authorities have the ability to obtain from right holders an adequate security or equivalent assurance; this ensures that where a search is wrongly conducted, the defendant can be compensated for any resulting prejudice. Other Articles contain similar safeguards. Finally, it is important to recall that this Directive is based on the best practices in the Member States. We are unaware of any evidence that suggests that these tools have been misused against SMEs or that they have stifled competition in any way. Indeed, the evidence is to the contrary: weak IP protection undermines competition.
The Directive supports interoperability and open source software models. The proposed Directive will not undermine the ongoing development of open source software in the EU. First it does not affect the 1991 Software Directive. Thus the acts of reverse engineering to achieve interoperability that have been permitted under the Software Directive for over a decade will continue to be permitted. Indeed, any conduct permitted by the Software Directive will still be permitted after the adoption of the Enforcement Directive. Moreover, enforcement of IPRs is good for OSS developers just as it is for commercial software developers. Obligations regarding the use of open source software are established in the respective OS licenses and grounded upon IPRs . The ability to enforce these IPRs is a critical element in maintaining the open source system. Failure to achieve a minimal harmonisation of IPR enforcement rules in an enlarged EU will expose software developers � both commercial and open source � to situations in which they are unable to enforce their respective rights.
There is no longer a concern that the Directive�s remedies will be applied unjustly in patent disputes. Despite initial opposition by the Legal Affairs Committee, who had sought to exclude these from the scope of the Directive, the Council text applies to patent infringements. The Legal Affairs Committee properly believed that certain of the Directive�s measures (double damages and strong criminal sanctions) should not apply to patent infringements. This concern has been mitigated by the elimination of double damages and criminal sanctions from the Directive. Patent litigation is almost exclusively conducted between competing commercial organisations involved in the same area of trade. Patent litigation tends to focus on questions about the validity of the relevant patent, and not necessarily on counterfeiting matters. In these circumstances, strong criminal sanctions and double damage remedies are less appropriate. Given that these remedies have been eliminated from the Directive, however, there is no longer a concern that they will be unjustly applied in patent disputes.
---------- Teresa Hackett 114 Cedar House Mespil Estate, Sussex Road Dublin 4, Ireland Email: teresahackett@eircom.net Dutch Mobile: +316 523 63486 (until 19.3.2004) NEW! Irish Mobile +353 87 6253768 ---------- ---------- Teresa Hackett 114 Cedar House Mespil Estate, Sussex Road Dublin 4, Ireland Email: teresahackett@eircom.net Dutch Mobile: +316 523 63486 (until 19.3.2004) NEW! Irish Mobile +353 87 6253768 ----------