In March last year the European Parliament (EP) approved a directive that allowed harsher sanctions against infringers on the intellectual-property (IP) rights of others. Crucially this directive, known as the Intellectual Property Rights Enforcement Directive (IPRED), was amended to prevent criminal sanctions from being made available in all IP cases.
At the time, a coalition of rightsholder groups said it would continue to press for criminal sanctions at the EU level. Two weeks ago the European Commission announced that it had adopted proposals for a directive that would allow criminal-law provisions to combat infringements of IP rights. The Commission claimed that the proposed measures were merely "to align national criminal law", but some are concerned that the law will go much further and jeopardise open source developers, file sharers and companies using software that infringes intellectual property.
So what does the directive propose? The directive claims that it will apply to "all intentional infringements of an IP right on a commercial scale". The penalties to those caught offending include four years' imprisonment; fines; seizure and destruction of the offending goods; closure of the establishment used to commit the offence; a ban on engaging in commercial activities; and denial of access to legal aid.
Current law
The UK already offers criminal sanctions against those accused of infringing trademark or copyright, but not against those accused of infringing patents. The law in the UK is generally used only in cases of large-scale organised crime, while the European directive appears to offer enforcement against any type of IP infringement on a commercial scale.
Richard Penfold a partner at law firm DLA Piper Rudnick Gray Cary, said the proposed directive will "beef up criminal provisions" for those accused of infringing IP in the UK and will make IP infringement a more serious offence in many EU member states. He says the directive is aimed at organised crime but could impact free and open source software and businesses that are using infringing software.
Paul Stevens, a partner at law firm Olswang, says he did not think the law would affect the situation in the UK, as the directive was primarily about harmonisation and the UK justice system is likely to take a reasonable view to minor infringements.
Talkback
It's basically 'IT Terrorism'.
- The European Commission makes the bombs (easily abused laws).
- The corporations place them on the victims (developers and users of free software) .
- The courts press the button (hand out the prison sentences).
- Everyone becomes afraid of being a victim (stops developing and using free software), thereby creating an afflicting blanket of fear throughout a community (terrorism).
This is only being done because there's no point in a giant corporation suing someone (free software developer) who doesn't have a lot of money. The Corporations need another threat to maintain their monopolies, and the European Commission seems happy to oblige ...again.
What do the EC do anyway? Apart from make a bad name for themselves by causing unjustified grief to good people (Open Source Movement), whilst blatantly protecting the bad (MS). We need to get rid of them, they're a waste of our taxes.
Sigh. The EC is still clueless. They still haven't figured out that they are being used by large cooperations to do their dirty work for them.
Picture the following scenario. Someone big wants to pressure someone small. File a complaint and threaten with severe legal action. What will the laywer of the smaller firm/guy/whatever say: well, you could fight it but then you don't know for sure what the outcome will be and it'll suck up all your time in the mean time, you still run the risk of financially bleeding to death before the end by means of legal cost or bad PR so the only realistic option you have is to simply give into their demands which will include a gag order so nobody else will know about it.
The other way around? Yeah right. Do you have the means and time to fight a big boy all the way to the top? No, I didn't think so. Even governments seem to be unable to make them play by the rules in ways that will hurt their revenue seriously if they don't comply. And it takes even them years to get there.
And what about organized crime then? Oh geez, how long before they move themselves to a country that has different laws, simply doesn't care less, is corrupt anyway, whatever.
No, sledgehammers like this should be restricted only to people and organizations that already have been proven to be (part of) a criminal organization by existing traditional laws.
How about the developers of the software used to perform IP infringement? If I make some software that allows users to take backups of DVDs and then some mafia uses that to do large-scale copying, could I get put in jail for aiding and abetting?
-Lars
How can anyone say that the UK will not jump on board this bandwagon. We are completely within the power of an undemocratic "dodgy" government. The latest gimmick plan is the creation of "supercop" who can take away your license and vehicle if he doesn't like the look of you.
In a recent case, a mother had to pay a few grand (over twice the real value) in damages because her very young daughter downloaded some "free" music.
These people are not stupid, even if the EC are, they know exactly what they intend the law to be used for and once implemented they will take full avantage.
I would say get out of the EU now, but quite honestly what we have here is no better.
Especially into developing countries where well defined and registered IP cannot be saved because companies are flagarantly voilating IP.
Look at the recent article in an Indian daily
http://www.financialexpress.com/fe_full_story.php?content_id=158221