Report from Strasbourg by James Heald:

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Thu 2/12/2004 10:54 AM
Subject: Attendance list / Report -- Strasbourg IPR meeting

Attached is a list of the attendees for yesterday s meeting on the IPR directive, suitable to load into a spreadsheet.

It is sorted by "importance", ie MEPs - staffers - assistants - speakers - lobbyists.

Sort on column F if you want to know where everybody sat.

A pretty impressive turnout: the rapporteur, all the shadow rapporteurs, 11 MEPs in total, plus 10 more assistants, the relevant staffers from GUE and ELDR and the Greens, plus lobbyists from Microsoft, IFPI (2), International Trademark Association, Motion Picture Association, Telecom Italia, and White and Case LLP.

Pretty much all the speaking was done by the panel.

Probably the most interesting speech for the audience was the speech by Georg Jakob, identifying several really quite nasty technical issues with the directive text, missing definitions, and problems caused by its very different relationships to the different international laws. He really had the room s attention, and I think it is pretty clear that if these are not fixed, the directive is going to cause legal havoc across the EU. Text will be forthcoming.

The other speeches were much more general. Toine Manders left angrily after an hour saying he was a busy man, part way through Jakob s speech, complaining that we had wasted 60 minutes with four speeches all saying very similar things that had already been endlessly raised, and now he had to leave and could not take part, now that there was something worth discussing (which he thought was misinformed). But I think for some of the other MEPs it may have been useful to make very clear why so many groups would still have such major problems with the text.

Of the lobbyists present, the only one that spoke was the man from the Trademarks Association, complaining that we were misrepresenting the directive because it would not change substantive law, just provisions for enforecement, and therefore there was nothing to worry about. As we had already made the point extensively that these measures are potentially such a gift for aggressive plaintiffs with very weak cases, especially in the areas of patents, confidential information, and rights with disputed ownership, this was a truly ludicrous argument from the trademark troll. We explained it to him again, and he walked out saying that he had never seen such a one sided panel. Various other MEPs did have to go due to time constraints, and the room did slowly thin out -- but I think if they did, they will probably quite carefully check what else was said with the assistants that remained.

It becomes increasingly clear to me that the critical issue with this directive is timing. A little clique of the the rapporteurs and her three shadows has hijacked a directive about counterfeiting and piracy, has enormously widened the scope of it because they want to nail more people they somehow managed to miss with the EUCD, and is now trying to ram it though all its stages in secret before the outside world notices -- despite the fact that this is one of the most economically important but complex and technical areas in the whole of law, and if it is blasted through by last-minute ambush amendments with no detailed scrutiny at all by /anybody/ outside the Parliament and the Council, the results could be commercially devastating.

The UK House of Lords was quite right to recognise that even it wouldn't have the detailed technical ability to scrutinise such a text, and recommends that any text should not be cleared until a detailed assessment has been made of the compatibility of Articles 6 to 9 with domestic law and human rights law; a specific impact assessment has been made of exactly what changes would need to be implemented in UK law; and there has been detailed consultation, especially with patent judges. These are not unreasonable requests, but definitive answers cannot be found while the text is still in flux (and while the text is still secret). Therefore there *must* be sufficient time allowed for reflection between an acceptable draft finally being agreed (the "beta" release), and the deadline for final amendments. I suggest that a "time out" of at least a calendar month is the bare minimum that is acceptable.

The weapons in this directive are the weapons that SCO is turning on the whole community. If we get this wrong, they will be put into the hands of inexperienced judges right across Europe without sufficient guidance, and Europe will be held to ransom by American-style legal shysters.

This is a huge issue for anyone at risk of being wrongly attacked -- that certainly includes Open Source, but also people at risk of inadvertantly growing protected plants, questionable trademark cases, alleged secrets cases, etc, etc, etc......

The list is almost endless -- this directive *must* undergo proper scrutiny.

James.