Law and Information

Shame on me – I almost missed this long-awaited report on Internet Governance. More on that score later on – click here for initial comments. The definition of Internet Governance is all-inclusive:

The Berkman Center’s wonderful Executive Director John Palfrey was kind enough to comment on my earlier post regarding the IPR-Enforcement Directive No. 2. It doesn’t come as a surprise that I share John’s fear that the vague “attempting, aiding or abetting and inciting”-standard as set forth in the proposed directive is very likely to cause much headache by increasing legal uncertainty in the current quicksilver technological environment. I’m convinced that it would have negative impacts on entrepreneurship and innovation for exactly the reasons JP mentions. In an email, our friend Mike McGuire at GartnerG2 points out that this sort of legislation – also causing uncertainty among VCs – could imperil the efforts of innovative technologies and services such as Weed, PeerImpact, playlist services, etc. that are just starting to hit the market.

However, it’s also important to note that the Commission’s proposal is only the beginning of a long conversation. Given the success of our colleagues in fighting criminal provisions in the context of the IPR Enforcement Directive No. 1 and, most recently and more generally (although not directly linked), in the case of the Software Patents Directive, I’m still hopeful that the proposed standard will not become law in Europe. Fingers crossed.

As to John’s question about the “health and safety”-rhetoric: This goes back to the 1998 Green Paper on the fight against counterfeiting and piracy in the single market (at p. 5):

Obviously, the authors had different things in mind than online piracy of digital content. Consider, for instance, counterfeiting of pharmaceutical products or the like. Indeed, the proposed directive and framework decision would apply to any infringement of any IP rights as provided by EU legislation and/or by member state laws, including:

• copyright,
• rights related to copyright,
• sui generis right of a database maker,
• rights of the creator of the topographies of a semiconductor product,
• trademark rights,
• design rights,
• patent rights, including rights derived from supplementary protection certificates,
• geographical indications,
• utility model rights,
• plant variety rights,
• trade names, in so far as these are protected as exclusive property rights in the national law concerned.

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:

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.