|
|
Proposed Ammendment to the IP Enforcement Directive
Tabled by Finnish MEP
Piia-Noora Kauppi,
(Amendment 1)
Article 2
Scope
1. Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as those means may be more favourable for right holders, the measures provided for by this Directive shall apply to any infringement of the rights deriving from Community and European acts on the protection of intellectual property, as listed in the Annex, and from the provisions adopted by the Member States in order to comply with those acts when the infringement is committed for commercial purposes or causes significant harm to the rightholder.
1. Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as those means may be more favourable for right holders, the measures provided for by this Directive shall apply to any infringement of the rights deriving from Community and European acts on the protection of intellectual property, as listed in the Annex, and from the provisions adopted by the Member States in order to comply with those acts when the infringement is committed for commercial purposes or causes significant harm to the right holder, provided that the infringement in question constitutes an act of counterfeiting.
Justification
The Directive needs to be clear about the type of infringements that it covers. The reference to infringements which cause significant harm to the right holder is too vague. Accordingly, the final part of paragraph 1 should be amended so that the Directive applies only to serious infringements such as clear cases of counterfeiting.
The second part of the Amendment also clarifies the relationship
between this Directive and the e-commerce Directive. The e-commerce
Directive s provisions on intermediary liability are the result of
detailed and lengthy discussions and a careful compromise that should not
be
re-opened.
(Amendment 2)
Article 2
Scope
2. This Directive shall be without prejudice to the particular provisions on the enforcement of rights contained in Community legislation concerning copyright and notably those found in Directive 2001/29/EC.
2. This Directive shall be without prejudice to the particular provisions on the enforcement of rights and exceptions contained in Community legislation concerning copyright and notably those found in Articles 2-5 of Directive 2001/29/EC.
Justification
Ensures the stability of Community law on copyright. Emphasises that citizens may exercise the exceptions to copyright and neighbouring rights enumerated in Article 5 of Directive 2001/29/EC.
(Amendment 3)
Article 2
Scope
3. This Directive shall not affect :
a) the Community provisions governing the substantive law on intellectual property, Directive 95/46/EC, Directive 1999/93/EC or Directive 2000/31/EC;
b) Member States international obligations and notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement).
3. This Directive shall not affect :
a) the Community provisions governing the substantive law on intellectual property, Directive 95/46/EC, Directive 1999/93/EC or Directive 2000/31/EC; particularly Articles 12, 13, 14 and 15 of the latter on the service providers liability for mere conduit , caching and hosting ;
b) Member States international obligations and notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement ).
(c): The Community provisions regarding the reverse engineering of products for compatibility, Directive 91/250/EEC'
Justification
Ensures the stability of Community law on electronic communications. Introduces symmetry between right holders and citizens. Reinforces Community law provisions on the production of interoperable products.
(Amendment 4)
Article 3
General obligation
Member States shall provide for the proportionate measures and procedures needed to ensure the enforcement of the intellectual property rights covered by this Directive.
These measures and procedures shall be such as to remove from those responsible for an infringement of an intellectual-property right the economic benefits of that infringement. They shall be fair and equitable, and shall not be unnecessarily complicated or costly, nor entail unreasonable time-limits or unwarranted delays.
These measures and procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade.
Member States shall provide for the proportionate measures and procedures needed to ensure the enforcement of the intellectual property rights covered by this Directive.
These measures and procedures shall be such as to remove from those responsible for an infringement of an intellectual-property right the economic benefits of that infringement. They shall be fair and equitable, and shall not be unnecessarily complicated or costly, nor entail unreasonable time-limits or unwarranted delays.
These measures and procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and shall not be applied in such a manner as to facilitate anti-competitive behaviour.
Justification
Intellectual property law is a delicate balance between providing enough protection to encourage creativity while not providing so much protection that competition is stifled. This balance is enshrined, inter alia, in section 7 of the TRIPS agreement. One concern is abuse of technical anti-circumvention provisions, such as those in the Copyright Directive, to prevent interoperability. This is due to be reviewed by the Commission with the review of the Copyright Directive starting next year. The present Directive should not pre-empt that review.
(Amendment 5)
Article 5
1. Member States shall recognise as persons entitled to apply for application of the measures referred to in this Chapter the holders of intellectual property rights, as well as all other persons authorised to use those rights, in accordance with the applicable law, or their representatives.
1. Member States shall recognise as persons entitled to apply for application of the measures referred to in this Chapter the (one word deleted) owners of intellectual property rights, as well as (delete one word) other persons authorised to use those rights, in accordance with the applicaple law (3 words deleted).
Justification
The current text allows all persons entitled to use IP rights to apply for measures. This may cause confusion. Ideally this matter should be dealt with in substantive IP law and not in this Directive. Therefore, this Amendment pretends to allow only the owner of an intellectual property right to apply for the proposed enforcement measures.
(Amendment 6)
Article 7
1. Member States shall lay down that, where a party has presented reasonably available evidence sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, the judicial authorities may order that this evidence be produced by the opposing party, provided that the protection of confidential information is assured.
1. Member States shall lay down that, where a (delete 1 word) claimant alleging infringement of intellectual property rights covered by this Directive has presented (delete 2 words) evidence to a court which, in the court s view, is sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, the judicial authorities may, in appropriate cases and in a proportionate manner, order that this evidence be produced by the opposing party, provided that the protection of confidential information is assured.
Justification
The current wording of this article creates confusion. It establishes a too open procedure, with a low standard of proof, thereby imposing a disproportionate evidence-production burden on network operators and other intermediaries. The suggested text seems more balanced and provides legal certainty.
(Amendment 7)
Article 9
Right of information
1. Member States shall lay down that, in order to deal with proceedings involving an infringement of an intellectual property right, or in response to a request for provisional or precautionary measures, the judicial authorities shall order, at the request of the right holder, unless particular reasons are invoked for not doing so, any person to provide information on the origin of the goods or services which are thought to infringe an intellectual property right and on the networks for their distribution or provision, respectively, if that person:
(a) was found in possession, for commercial purposes, of the infringing goods;
(b) was found to be using the infringing services for commercial purposes; or
(c) was indicated by the person referred to in point (a) or (b) as being at the origin of the goods or services or as being a link in the network for distributing those goods or providing those services.
1. Member States shall lay down that, in order to deal with proceedings involving an infringement of an intellectual property right, or in response to a request for provisional or precautionary measures, the judicial authorities (one word deleted) may order, (two words deleted) in response to a justified and proportionate request (4 words deleted) submittted by the applicant, unless particular reasons are invoked for not doing so, any person to provide available information in accordance with applicable judicial procedures on the origin of the goods or services which are thought to infringe an intellectual property right and on the networks for their distribution or provision, respectively, if that person:
(a) was found in possession, for commercial purposes, of the infringing goods;
(b) was found to be using the infringing services for commercial purposes; or
(c) was indicated by the person referred to in point (a) or (b) as being, for commercial purposes, either at the origin of the goods or services or as being a link in the network for distributing those goods or providing those services.
Justification
The current wording presents an important contradiction between this article and the Data Protection Directive (Dir. 58/2002/EC). The present proposal goes much further than the mentioned Directive by requiring disclosure of personal information in the case of civil infringements. The Amendment seeks to let the Courts determine if a request to obta in evidence is proportionate and justified, in particular in terms of the invasion of privacy, the damage caused to the right holder and the value of evidence to any legal proceedings the right holder intends to pursue. The new formulation of clause (c) makes it consistent with clauses (a) and (b). Targets the strong sanctions of the directive at commercial counterfeiting and piracy without damaging the consensus for such measures that would be caused by action against alleged small-scale personal infringers of intellectual property rights or against innocent parties involved in the distribution of free software.
Limits possiblities for courts to make excessive disclosure orders. 9.1 (c) was suggested by FIPR.
(Amendment 8)
Article 20
Criminal law provisions
1. Member States shall ensure that all serious infringements of an intellectual property right, as well as attempts at, participation in and instigation of such infringements, are treated as a criminal offence. An infringement is considered serious if it is intentional and committed for commercial purposes.
2. Where natural persons are concerned, Member States shall provide for criminal sanctions, including imprisonment.
3. As regards natural and legal persons, the Member States shall provide for the following sanctions:
(a) fines;
(b) confiscation of thegoods, instruments and products stemming from the offences referred to in paragraph 1, or of goods whose value corresponds to those products.
In appropriate cases, Member States shall also provide for the following sanctions:
(a) destruction of the goods infringing an intellectual property right;
(b) total or partial permanent or temporary closure of the establishment used primarily to commit the infringement;
(c) a permanent or temporary ban on engaging in commercial activities;
(d) placing under judicial supervision;
(e) judicial winding-up;
(f) a ban on access to public assistance or subsidies;
(g) publication of judicial decisions.
4. For the purposes of this Chapter, the term legal person shall be understood to mean any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.
1. Member States shall ensure that all serious infringements of an intellectual property right, as well as attempts at, participation in and instigation of such infringements, are treated as a criminal offence. An infringement is considered serious if it is intentional and committed for commercial purposes, and it causes substantial financial loss to the rights holder.
2. Where natural persons are concerned, Member States shall provide for criminal sanctions, including imprisonment.
3. As regards natural and legal persons, the Member States shall provide for the following sanctions:
(a) fines;
(b) confiscation of thegoods, instruments and products stemming from the offences referred to in paragraph 1, or of goods whose value corresponds to those products.
In appropriate cases, Member States shall also provide for the following sanctions:
(a) destruction of the goods infringing an intellectual property right;
(b) total or partial permanent or temporary closure of the establishment used primarily to commit the infringement;
(c) a permanent or temporary ban on engaging in commercial activities;
(d) placing under judicial supervision;
(e) judicial winding-up;
(f) a ban on access to public assistance or subsidies;
(g) publication of judicial decisions.
4. For the purposes of this Chapter, the term legal person shall be understood to mean any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.
Justification
To be constituted as a criminal offence, the conduct should at very least cause substantial financial loss to the rights holder otherwise its application could be too wide.
(Amendment 9)
Article 21
Legal protection of technical devices
1. Without prejudice to particular provisions applicable in the field of copyright, related rights and the sui generis right of the creator of a database, Member States shall provide for appropriate legal protection against the manufacture, import, distribution and use of illegal technical devices.
1. Without prejudice to particular provisions applicable in the field of copyright, related rights and the sui generis right of the creator of a database, Member States shall provide for appropriate legal protection against the manufacture, import, distribution and use of illegal technical devices. This protection shall not be implemented in such a way as to create barriers to the Single Market, or to facilitate anti-competitive behaviour.
Justification
The balance between protection and competition must be maintained whenever new intellectual property rights or sanctions are created. In view of the widespread concern about technical anti-circumvention provisions in the copyright field to prevent interoperability, care is needed to ensure that other technical anti-circumvention provisions do not also cause similar problems. For example, a technical device might be designed to protect the authenticity of goods and also be used to restrict the operation of goods to a particular national market. Such devices must not enjoy unqualified European legal protection.
|
|
|
|
