Draft EU-Directive sets forth Criminal Law Provisions Aimed At Fighting IPR Infringements

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A few days ago, the Commission of the European Communities presented a proposal for an EU-Directive on criminal measures aimed at ensuring the enforcement of IP rights along with a proposal for a Council Framework Decision to strengthen the criminal law framework to combat IP offences. The proposal seeks to reduce existing disparities between the EU member states’ systems of penalties (see also my comment here) that, according to the Commission, “make it difficult to combat the counterfeiting and piracy effectively.”

The proposal takes Article 61 of TRIPS, which criminalizes willful infringement on a commercial scale, as a starting place to take things a step further. Article 3 of the proposed Directive reads as follows:

“Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.” (Emphasis added.)

According to Article 2 of the proposed Framework Decision, member states must punish such offences by a maximum sentence of at least four years’ imprisonment if the offence is committed under the aegis of a criminal organization or it carries a health or safety risk. The applicable maximum fine must be at least EUR 300.000 for cases involving criminal organizations or posing a risk to public health and safety, and EUR 100.000 in less serious cases. The proposal allows Member States to apply tougher penalties.

Personally, I agree with the draft Directive’s objective to fight organized IP crimes and infringements that bear risks for public health and safety. However, the much broader provision on “attempting, aiding or abetting” and “inciting” infringements is highly problematic and should be removed or at least significantly limited in scope. Under this standard, for instance, software programmers would run the risk to be criminalized if their software could be used for large-scale copyright infringements, especially vis-�-vis the broad “commercial scale” criterion which does not require financial motives, benefits, or profits.

The latest EDRI-gram, among other things, outlines some of the scary scenarios of this provision, and provides background information by looking back at the fight surrounding the earlier IP Enforcement Directive 2004/48/EC.

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