Parliament adopts intellectual property directive amid protests

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" The controversial directive on the enforcement of intellectual property rights (IPR) has been adopted in Parliament by a large majority amid protests that it is impinging on consumers' and citizens' rights.

The vote, which took place on 9 March, had been postponed in February in order to buy more time for the Irish Presidency to steer negotiations between Parliament, Council and Commission (see EurActiv, 10 February 2004). The delay was justified at the time by the fact that Member States were still divided on key issues such as the criminal sanctions to be applied to infringers and the scope of the directive.

The compromise struck between the three institutions notably includes a provision that excludes any criminal sanction against infringers. It will be up to Member States to decide whether they want to impose criminal sanctions or not. However, Commissioner Bolkestein declared after the vote that the Commission would propose EU measures on criminal sanctions for IP rights violations "in due course".

The compromise also makes enforcement measures applicable only to breaches made on a commercial scale with the view to making a profit, which in principle excludes final consumers acting "in good faith". Provisional measures such as the seizure of the incriminated goods (CDs, luxury handbags, etc.) can be applied and sanctions include the destruction of the goods as well as financial compensation.

Issues:

The IPR directive is aimed primarily at cracking down on piracy and counterfeiting by imposing criminal sanctions to infringers operating on a large-scale and for commercial purposes only. But opponents claim it has been amended in a way that gives rights holders (mostly coming from the music and film industries) disproportionate powers, allowing individuals to be sued for exchanging files online on the same grounds as large-scale infringers.

In a last attempt to convince MEPs to vote against the directive, protesters led by civil liberties group EDRi (European Digital Rights) organised a rally outside the Parliament's building on the eve of the vote in Strasbourg. The protesters were supported by Italian MEP Marco Cappato who tabled a set of amendments to block what they said is a tougher version of the US Digital Millenium Copyright Act. In the US, the DMCA served as the legal basis for music companies to sue individual US citizens caught swapping music online.

The rapporteur herself, French MEP Janelly Fourtou (EPP-ED), drew criticism for alleged conflict of interest as her husband Jean-René Fourtou is the CEO of Vivendi Universal, the troubled French media giant.

Positions:

The coalition of European creative industries welcomed the vote as "a first step in the fight against piracy and counterfeiting". It regretted however, that the directive does not harmonise criminal penalties and said creative industries will continue to press for criminal sanctions at EU level. The coalition called on the institutions to address the issue urgently.

Commenting on the vote, Jim Murray, the director of the EU consumers organisation (BEUC) said he was deeply disappointed. He claims the current text breaks away from the Commission's initial proposal by extending the scope of the directive to private copying, thereby giving industry "a weapon to intimidate customers in their own home".

An aide to MEP Janelly Fourtou, the Parliament's Rapporteur on the IPR directive, told EurActiv that consumer concerns were unfounded. According to the source, the directive does not call into question the exception to private copy as laid down in the copyrights directive. The source also maintained that it is a horizontal text that does not limit other sectoral rules such as the e-commerce directive which contains specific provisons on the protection of individuals' rights and privacy. In a press statement issued before the vote, Ms Fourtou said that the directive would not apply to final consumers acting in good faith.

Anticipating reactions from civil liberties groups, Internal Market Commissioner Frits Bolkestein said the IPR directive as voted by Parliament on 9 March was "keeping the emphasis on catching 'the big fish' rather than the 'tiddlers' who commit relatively harmless acts like downloading a couple of tracks off the Internet for their own use". The Commission holds that the draft directive "contains the necessary safeguards and limitations to protect the interests not only of the defendant but also of potentially innocent offenders, who have unknowingly been involved in illegal practices". However, Bolkestein is disappointed that no criminal sanctions are to be imposed at EU level and said the Commission will put forward a separate proposal in this matter.

The spokesperson of the Liberal (ELDR) group in Parliament, MEP Toine Manders, said the new IPR law was "good news for innovation and bad news for the counterfeiters". However, he regretted that individuals found in possession of a counterfeited luxury product would not be considered as offenders.

The Green group in Parliament generally welcomed the EU's intention to counter piracy but expressed concerns about the haste with which the directive is being rushed through. "We are applying a far too broad brush approach to this and we could end up unfairly penalising the consumer without really getting to grips with large scale breaches of intellectual property", Scottish MEP Neil Mac Cornick said in a statement.

Next steps:

The directive could be endorsed by Member States at the competitiveness Council on Thursday 11 March. The Commission indicates that a definitive official adoption is likely to take place in April. Once adopted, the Member States will have two years to implement it."