[Fsfe-ie] European Parliament:OSS & enforcement directive

[teresahackett at eircom.net]

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. 

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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. 

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Teresa Hackett
114 Cedar House
Mespil Estate, Sussex Road
Dublin 4, Ireland
Email: teresahackett at eircom.net
Dutch Mobile: +316 523 63486 (until 19.3.2004)
NEW! Irish Mobile +353 87 6253768
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----------
Teresa Hackett
114 Cedar House
Mespil Estate, Sussex Road
Dublin 4, Ireland
Email: teresahackett at eircom.net
Dutch Mobile: +316 523 63486 (until 19.3.2004)
NEW! Irish Mobile +353 87 6253768
----------