Anti-piracy directive could expose consumers

Minor copyright infringements could lead to harsh sanctions under the anti-piracy directive approved by the European Parliament on Tuesday, according to a UK civil liberties group. The directive could trigger sweeping changes to the UK's intellectual property laws, it says, including raids, equipment seizures and the freezing of bank accounts used for file copying.

"It is very disappointing that the amendments we had worked on to limit the scope of the directive to commercial piracy didn't pass," said Ian Brown, director of the Foundation for Information Policy Research. "What we have ended up with is a vague, potentially wide-ranging directive. Groups concerned about the directive will now have to try to persuade 25 member states to do good implementations, since we have not been able to prevent these problems at a European level."

Once the Intellectual Property Rights Enforcement Directive (IPRED) directive is approved by ministers, as is expected on 11 March, member states will have two years to adopt the directive's provisions into national law, which is a process that gives states significant leeway in interpretation.

However, in adapting previous intellectual-property directives, governments have not tended to use this leeway, Brown noted. In an analysis of the EU Copyright Directive (EUCD) of 2001, for example, FIPR found that most countries were failing to protect researchers, business competition and consumers in their implementations of the directive, while giving full force to measures that criminalise the circumvention of copyright controls, resulting in legislation mirroring the US' controversial Digital Millennium Copyright Act. The EUCD was implemented in UK law last autumn.

The intellectual property rights directive's vague wording promises a period of legal uncertainty for firms as well as consumers, Brown said.

The European Parliament said it had worked to limit the applicability of the directive to intellectual property violations carried out without commercial intent or effect. Civil liberties and consumer-rights groups said this measure, a compromise between the parliament and national governments in order to speed the directive's adoption, was ineffectual.

The amendment, which appears in the directive's preamble rather than in the main body of the text, only covers specific measures such as freezing bank accounts. While its wording limits the scope of the directive to offences on a "commercial" scale, the word "commercial" is vaguely defined as "anything which creates a direct or indirect economic advantage". "You could argue that a file-sharer gets an economic advantage by downloading a song," Brown said.

UK intellectual property law already allows some of the civil sanctions included in the IPRED, such as Anton Pillar orders, which allow the homes and offices of suspected offenders to be raided by rights holders. But UK courts have limited these provisions and instituted safeguards that are not included in the directive, FIPR said.

The group also noted that such provisions will come as a surprise to most other member states. "The UK and Ireland are the only [countries] with anything like that at the moment," Brown said. "Most [other EU countries] only have those provisions for criminal cases, which would only allow the police to carry out such raids. Other countries are concerned that the directive creates these privatised police forces."

He argued that in countries such as Spain, which treats confidential information as intellectual property, the IPRED could be used to harass journalists.

An earlier version of the directive would have made criminal sanctions available in all intellectual property cases, something demanded by large rights-holder associations such as the Business Software Alliance and the International Federation of the Phonographic Industry. With these provisions removed from the final version of the directive, a coalition of rightsholder groups said it would push for criminal sanctions through other channels.

"Creative industries will continue to press for criminal sanctions at the EU level and call on the institutions to address this issue urgently," a statement released by the coalition read. "Pirates often use relatively easy profits from piracy to fund other criminal activity such as arms trafficking and drug dealing."

The UK already offers criminal sanctions for intellectual property cases, but only in cases of large-scale organised piracy. Rightsholders are pushing for criminal sanctions across the EU and in all intellectual property cases.

Such sanctions would make it simpler for rightsholders to prosecute offenders, since small-scale suspects such as individual file-traders could be investigated by the police, instead of requiring a potentially expensive civil lawsuit. The sanctions would also mean the possibility of jail time for individual offences, rather than a fine, as is the usual outcome in successful civil cases.

FIPR's Brown said he was not aware of a country, including the US, that allowed for criminal sanctions in small-scale intellectual property cases.