[Fsfe-ie] Enforcement directive-draft IFSO letter

teresahackett at eircom.net teresahackett at eircom.net
Sat Jan 24 15:31:14 CET 2004

Hello IFSO friends,

Please see below draft text of a letter to Mary Harney et al on the enforcement directive, which Ciaran and I have been working on. A few points to note:
1. The letter is addressed to the Council and so refers to the latest Council text, not the original Commission proposal or the Parliament amendments. (There are significant differences between these texts, it was bad to start with but has got progressively worse). You can view the original Commission proposal at: http://europa.eu.int/comm/internal_market/en/intprop/docs/index.htm#proposals and the Parliament amendments at: http://www.europarl.eu.int/meetdocs/committees/juri/20031126/498789en.pdf
2.There is a link to the Council text at:http://ifso.info/tmp/st16289[1].en03.PA.PDF. The underlined text means that it is an amendment. The footnotes which say “Deleted” refer to the country who proposed these amendments. They have been hidden to “protect” the negotiations. We know that the Council IP working group met all day yesterday to discuss the directive, so it could be that there are more/other changes, but this will keep happening until they reach agreement. 
3. The IFSO amendments at the end should be read as follows. The text to the left of the line bar is the current Council text. The text to the right is the IFSO suggestion. The IFSO suggestions are based either on the original Commission text i.e. where the Commission text is better than the Council amendment or good Parliament amendments which failed to get through. At this stage, there is little point in introducing brand new amendments and anyway we must concentrate on getting rid of the bad stuff.
4. If you have comments, please suggest alternative wordings, etc.
5. The final version will be on the website and circulated widely to Mary Harney, ENTEMP, the Council, MEPs, etc.
6. I would love to have a logo but my skills don’t stretch that far! I think a couple of people suggested to Ciaran that they would give it a go. If you think you can do it, please let us know.

Hope this all makes sense.

here's the letter:

(this will be sent in an open standard format, probably pdf)

Open letter to the President of the Competitiveness Council

Directive on enforcement of intellectual property rights threatens to
stifle competition in Europe

Dear Ms Harney,

IFSO acknowledges that effective law enforcement is required to combat
organised crime. However, this Directive goes further than
international obligations, and recent amendments to the text by the
European Parliament and the Council extend it's effect to include
unintentional, trivial, and non-commercial infringements, which may be
punishable with penal sanctions.

This undermines the user side of the copyright bargain by turning fair
dealing into a minefield. Not only will this be harmful to society,
but it is clearly beyond the remit of the Directive.

More prescriptive than international obligations

IFSO believes that the current text under discussion within the
Council(1) is over prescriptive, as it goes further than international
agreements and introduces extra obligations, so called "TRIPS plus"
elements on EU member states. We also believe that the proposal fails
the tests of proportionality and subsidiarity.

Anton Piller and Mareva orders exist in the common law systems of
Ireland and the UK and are used in exceptional circumstances to deal
with the raiding of premises, the seizure of goods and the freezing of
bank accounts. The "draconian and essentially unfair nature of Anton
Piller orders"(2) has led the courts to develop stringent pre-conditions
which must be met before they will issue such an order.

The Directive will raise their status from common law to statute law
and may dramatically increase requests for these extreme measures in
Ireland and the UK. For the rest of Europe, they will be introduced
without any safeguards.

(1)st16289[1].en03.PA 19.12.2003
(2)Colombia Picture Industries v Robinson [1987] Ch 38, 76 Scott J

Holding back the Information Society

Internet Service Providers (ISPs) could face limitless injunctions,
equipment seizures and could be ordered to disclose customer names,
block content or undertake surveillance, thus removing the "mere
conduit" status awarded to ISPs in the e-commerce directive, with
regards to IPR issues.

On receiving a take down request from a rightholder, an ISP will be
required to comply. Failure to comply could result in asset seizures.
If the request is subsequently proved to be invalid, the ISP could be
subject to counter claims.

The Directive will introduce new administrative burdens which will
hamper innovation, because all uses of computer networks will be
subject to authorisation and monitoring. Thus increasing costs and
holding back the development of the information society.

Less competition, less choice

The proposal will stifle competition and the development of legitimate
markets by preventing the reverse engineering of software components
in order to produce interoperable products currently permitted under
the software Directive(3) e.g. printer and game accessories. It would
become more difficult for new, innovative SMEs to sell software and
accessories independently of console and printer vendors.

It would also seriously undermine the growing use of Free Software
(sometimes called Open Source or Libre Software) such as GNU/Linux,
which the Information Society Initiative of the European Commission
says "may be a unique opportunity for the European software industry -
somehow this may be a proverbial `second and last chance'". The
result will be less choice and competition and an increase in the
monopoly position of the dominant players.

(3)Council Directive 91/250/EEC OJ L122, 17/05/1991

Alienates the citizens of the information society

The amendments proposed by the Council extend the scope of the
directive to include any infringement of copyright by anyone,
including small-scale, unintentional, non-commercial activities which
do not harm the rightholder (Article 2) and seek criminal sanctions
for all these infringements (Article 20).

The approach of the Council in their recent amendments create a highly
unbalanced situation and would be detrimental to the information
society, in particular the Lisbon Strategy. It would affect hundreds
of thousands of Internet users and create legal uncertainty for
millions more. It will alienate large portions of the on-line world,
young people in particular, from European politics and institutions.

Learning from the U.S. DMCA

The Digital Millennium Copyright Act (DCMA) is the U.S. equivalent of
the proposed European copyright framework. After five years in force,
there is evidence has been used to stifle scientific research and free
expression; undermine competition, reverse engineering and
technological innovation and has had a negative impact on fair use and
non-infringing use(4). Legislators concerned at the unintended and far
reaching effects are introducing new legislation to redress the

We therefore request that you use your influence on this important
issue affecting the information society to recommend the attached

(4)Unintended Consequences: Five Years under the DMCA

Yours sincerely,

(modifications are surrounded with ***)

article 2 paragraph 1
Without prejudice to the means |Without prejudice to the means
which are or may be provided for |which are or may be provided for
in Community or national |in Community or national
legislation, in so far as those |legislation, in so far as those
means may be more favourable for |means may be more favourable for
right holders, the measures and |right holders, the measures
procedures provided for by this |provided for by this Directive
Directive shall apply to any |shall apply to infringements of
infringement of the following |the following intellectual
intellectual property rights: |property rights: copyright, rights
copyright, rights related to |related to copyright, sui generis
copyright, sui generis rights of a |rights of a database manufacturer
database manufacturer and of the |and of the creator of the
creator of the topographies of a |topographies of a semiconductor
semiconductor product, trademarks, |product, trademarks, designs,
patents, including supplementary |utility models and plant variety
protection certificates, |rights, to the extent that
geographical indications, |protection of these rights is
including indications of origin, |provided for by Community law or
designs, utility models and plant |by the national law of the Member
variety rights, to the extent that |State concerned and from the
protection of these rights is |provisions adopted by the Member
provided for by Community law or |States in order to comply with
by the national law of the Member |those acts ***when the
State concerned. In this respect, |infringementis committed for
Member States shall ensure that |commercial purposes or causes
the judicial authorities take due |significant harm to the right
account of the specific |holder***.
characteristics of each case, |
including the intentional or |
unintentional character of the |
infringement, when determining the |
applicable sanctions or other |
measures. |


Maintain the objective of the original Commission proposal which was
to combat organised crime and was aimed at infringements carried out
for commercial purposes and which significantly harmed the
rightholder. It was not intended to criminalise all infringements
irrespective of their nature or character.

Article 2 paragraph 3
This Directive shall not affect: |This Directive shall not affect:
(a)the Community provisions |(a)the Community provisions
governing the substantive law on |governing the substantive law on
intellectual property, Directive |intellectual property, Directive
95/46/EC, Directive 1999/93/EC or |95/46/EC, Directive 1999/93/EC or
Directive 2000/31/EC in general, |Directive 2000/31/EC in general,
and the provisions of Articles 12 |and the provisions of Articles 12
to 15 in particular of that |to 15 in particular of that
Directive. |Directive.
(b)Member States' international |(b)Member States' international
obligations and notably the |obligations and notably the
Agreement on Trade-Related Aspects |Agreement on Trade-Related Aspects
of Intellectual Property Rights |of Intellectual Property Rights
(the "TRIPS Agreement"). |(the "TRIPS Agreement").
|(c)Community provisions regarding
|the reverse engineering of
|products for interoperability,
|Directive 91/250/EC in particular
|the provisions of Articles 5 and
|(d)Community provisions regarding
|the protection of patents.***


The provisions of the software directive with regard to reverse
engineering should be maintained (European Parliament report
A5-0468/2003 Amendment 15).

Patents must be excluded because of their special nature and to
prevent the directive from mixing competitive product development with
counterfeiting and piracy.

See also European Parliament report A5-0468/2003 Amendment 5 to
Recital 13: "...while excluding patents and certain activities which
do not involve intellectual property in the strict sense."

Article 20
Without prejudice to the civil |Without prejudice to the civil and
and/or administrative measures |administrative measures and
provided for under this Directive, |procedures laid down by this
Member States shall adopt the |Directive, Member States shall
necessary measures to ensure that |***apply appropriate sanctions in
at least every infringement of an |cases where intellectual property
intellectual property right of a |rights have been infringed.***
serious and intentional nature is |
liable to penal sanctions. |


The effect of this provision is to criminalise all infringements. The
restriction to infringements of "a serious and intentional nature" is
meaningless when these are undefined.

Furthermore, it is inappropriate for criminal sanctions to be
introduced under a First Pillar co-decision procedure. (European
Parliament report A5-0468/2003 Amendment 43).

Recital 12
This Directive shall not affect |This Directive shall not affect
the application of the rules of |the application of the rules of
competition, and in particular |competition, and in particular
Articles 81 and 82 of the Treaty.|Articles 81 and 82 of the
|Treaty. ***Furthermore, the measures
|provided for in this Directive
|must not be used to prevent


IFSO supports the European Parliament amendment to Recital 12 to
ensure that the enforcement of intellectual property rights will not
be used as a pretext to exclude competitors from the market.


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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