IP Justice Analysis of 3 EU Proposals (Council, EP, and Commission) on Key Issues

Commission[1]

European Parliament[2]

Council[3]

Comments

All civil infringements of Intellectual Property (IP)

All civil infringements of Intellectual Property (IP)

All civil infringements of Intellectual Property (IP)

~ Council position is recommended because it assures that the directive does not apply to criminal infringements.

~ Council position should be narrowed, however, to apply only in civil cases of commercial piracy and commercial counterfeiting.�

~ The directive should not apply in cases involving minor or commonly engaged in activities that technically constitute infringement.�

~ The directive should only apply in cases where there is an intent to infringe for commercial purposes.

Criminal � �for commercial purposes or causes significant harm�

All criminal infringements

* NOT applicable to criminal infringements

~ Under Council position, nations maintain sovereignty to determine criminal laws on their own.�

~ Criminalizing non-commercial infringements would change substantive criminal law in many states.

~ This procedure lacks proper authority to make criminal laws.�

~ Criminal provisions would likely be struck down in a legal challenge brought under the European Court of Justice.

~ Commission�s position would criminalize common everyday non-commercial infringements such as P2P file-sharing.

 

 

 

 

Commission

European Parliament

Council

Comments

�in order to deal with proceedings �.�

�in connection with proceedings for an alleged infringement ��

�in the context of proceedings concerning an alleged infringement ��

~ Council position is better, but needs improvement.� Commission and EP clearly do not require that a legal case be filed before personal information must be turned over.� Council position should be amended to clearly require that legal proceedings must have already begun before personal information is forcibly disclosed.� This would be consistent with most countries existing national laws.

~ The mere allegation of infringement is insufficient to obtain a person�s private information.� There should be a court hearing with a judge to weigh evidence before anyone�s personal info is turned over.� Only a judge is competent to weigh competing interests and balance conflicting rights.

~ Similar US DMCA subpoena powers have already provided Recording Industry Association of America with personal info on thousands of individuals based on mere allegation of infringement (for P2P use).

�for commercial purposes�

�No requirement of commercial purposes before personal information turned over

�on a commercial scale�

Should be requirement of infringement for commercial purposes before info is turned over.

 

(2a) ISPs cannot communicate with customers about the demand for their personal information if it could hamper investigation

 

EP position should be deleted.� Internet Service Providers (ISPs) should not be prohibited from communicating with their own customers about their disclosures of personal information.� This is burden for ISPs and it is unfair to a consumer to be prohibited from knowing that another private party is investigating you.

 

(4a) No general obligation to monitor systems for ISPs

 

EP position is good on this point.� ISPs should not be burdened with spying on their customers.� It would violate consumer privacy and data protection laws.� And this would unfairly shift burden from one industry to another to protect its own interest.

 

(4a) ISPs can be required to pro-actively contact police �without delay� of �presumed illegal activities�

 

~ ISPs should not be required to inform police of their customers� �presumed illegal activities.���

~ ISPs often lack control over the information on their networks.

~ Would undermine consumer privacy and data protections.

~ Imposes high costs on intermediaries.

~ Burdensome and unfair to shift burden of policing rightsholders� interests over to ISPs and other intermediaries.

~ Impossible to know what is �presumed illegal� since making fair use and using public domain materials are not obvious.

Commission

European Parliament

Council

Comments

�Serious� infringements are treated as criminal offences.

�Serious� if intentional and committed for commercial purposes.

Criminal � �members states shall apply appropriate sanctions in cases where IPRs have been infringed�

Criminal � �Member States may apply other appropriate sanctions in cases where IPRs have been infringed�

~ Council position is most reasonable because it permits states to enact criminal provisions according to their own discretion.�

~ Commission position is most extreme since it requires nations to criminalize �serious� infringements.�

~ Commission is making substantive European criminal law and not permitted under First Pillar procedures.

 

 

 

 

 

 

 

 

Commission

European Parliament

Council

Comments

Outlaws manufacture, import, distribution and use of illegal technical devices.

~ Outlaws manufacture, import, distribution, sale, hire, advertising, possession and use of illicit technical devices;

~ Outlaws import or distribution of tangible products to which illicit technical devices have been applied or whose technical devices have been removed, tampered with or disabled;

~ Outlaws applying rightsholders� technical devices on infringing products;

~ Outlaws removing, tampering with, disabling, or circumventing technical devices.

 

Outlaws manufacture, import, distribution and use of illegal technical devices.�

Five years of experience in US under Digital Millennium Copyright Act (DMCA) with similar �anti-circumvention� laws have shown these measures to restrict freedom of expression and create monopolies and barriers to innovation.� There should be no ban against technical devices in this directive.�

 

Council position is least dangerous to civil liberties, innovation, and competition.�

 

EP position is extremely broad, banning much more activity and information than other two proposals.

�Technical device� means any technology, device or component which, in the normal course of its functioning, is designed for the manufacture of authentic goods and the incorporation therein of elements which are identifiable by consumers and which make it easier to recognize the goods as being authentic.

�Technical device� means any technology, device or component designed to be applied to tangible products protected by an intellectual property right to facilitate the detection of counterfeit goods.

�Technical device� means any technology, device or component which is designed for the incorporation in tangible products protected by an industrial property right of elements which are manifestly identifiable by consumers and which make it easier to recognize the goods as being authentic.

EP position is most extreme and would protect any intellectual property right while the other two proposals are more narrowly aimed at piracy and counterfeiting.

�Illegal technical device� means any technical device which is designed to circumvent a technical device which permits the manufacture of infringing goods and incorporating the manifestly identifiable elements described above.

�Illicit technical device� means any technology, device or component which misleads, is designed to deceive or is likely to mislead as to the tangible product�s authenticity.

�Illegal technical device� means any technical device which is designed to incorporate in tangible products elements designed to deceive or mislead as to the product�s authenticity.

Council position requires intent to deceive so it will not be as broad of a ban on tools and activity as the other two proposals.� There should be a mal-intent before someone is liable for using or possessing technical devices.

 

Only �reasonable grounds to know� of an �infringement� of technical devices will create liability.

 

EP standard for liability is too low.

 

�Technical device� means any technology, device or component which is used to apply apparent or hidden security or authentication elements to a tangible or intangible product or its packaging whereby the security or authentication elements which are applied to the product also constitute a technical device

 

~ EP position would ban personal computers, since they are devices or components capable of removing/disabling watermarks.

~ Also applies to water-marking and other technology whose use is hidden from consumers or that consumers are unable to detect after they purchase the product.� Consumers will not be able to circumvent, remove, or disable such technology under EP position.

 

Applies to devices, products, components or services which:

a) are promoted, advertised or marketed for circumvention,

b) have only limited commercially significant purpose or use other than to circumvent, or

c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating circumvention.

 

 

 

�Infringement of a technical device� means:

– circumvention with technical device,

– removal of technical devices or rendering unusable in order to infringe,

– counterfeiting and imitation of technical device and using it to fake authenticity,

– INFORMATION IN ANY FORM about possible ways of disabling technical devices, except for purposes of scientific research.

 

EP position would create new and additional rights for IP holders.

 

Outlaws information about how technology works.� A simple carve-out for research is insufficient to cover the many additional legitimate uses of this information, such as news reporting and criticism.� This ban on technical information violates consumers� freedom of expression rights.

 

Theoretically permits use of technical devices by third parties when necessary to maintain competition.

 

EP recognizes that technical devices have the effect of restricting or eliminating competition.� But, still forbids the manufacture, import, and distribution of such devices, so exemption is meaningless for consumers who are unable to obtain the tools.