The European Commission has launched a proposal for a new Directive that aims at no less than harmonising penalties for infringements against copyright laws. The proposal, adopted by the Commission at the end of January, is currently under discussion in the Legal Affairs Committee of the European Parliament. A first draft of a 'Working Document' was presented to that Committee by its rapporteur on 28 April.
The proposition, which was drafted under the auspices of Internal Market Commissioner Frits Bolkestein, is largely modelled after existing provisions in England and Wales (the Anton Pillar and the Mareva injunction) and in France (saisie-contrefaçon).
The document contains references to the TRIPS agreement, the Bern Convention and in particular to the EU Copyright Directive 2001/29/EC. It calls on Member States to 'ensure that any infringement of an intellectual property right is punishable by penalties. These penalties must be effective, proportionate and deterrent.' The proposal explicitly covers technical copy protection, and it gives semi-authoritative powers to 'rights management or professional defence bodies', who shall be 'entitled to seek application of the measures and procedures referred to in this Chapter'. In order to safeguard evidence, the proposal foresees 'the physical seizure of the infringing goods, if necessary without the other party having been heard'.
Damages are set as 'double the royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question'. On top of that fine, the infringing good may be destroyed.
With regards to criminal law, Member states are called upon to '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.' Where natural persons are concerned, Member States shall provide for criminal sanctions, including imprisonment.'
The draftswoman for the EP Committee is Janelly Fourtou, a French Conservative (UDF) with ties to the publishing industry, who has a history of dealing with sanctions against infringements. She made her parliamentary debut four years ago with a report on the EU Green Paper on Combating Piracy and Counterfeiting in the EU that broadly reflected the interests of the entertainment industry.
In her Working Document, she criticizes that the Commission Proposal 'focuses on infringements committed for commercial purposes or causing significant harm to right holders', a view which, according to her, 'has been severely criticised by some industries'. She gives extensive room to the repetition of the copyright industry's arguments, namely that the Commission Proposal was too soft on 'certain forms of piracy'. She plans, however, to co-operate closely with the commission and other Groups in the EP in order to pass the proposition in First Reading.
Besides Legal Affairs the only Committee involved is Industry; the vote in Legal Affairs is foreseen for September 11 (indeed), the one in Plenary for the week following 20 October.
Proposal for a Directive of the European Parliament and of the Council on
measures and procedures to ensure the enforcement of intellectual property
rights
http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0046en01.pdf
Working Document presented by Fourtou to the European Parliament's Legal
Affairs Committee
http://www.europarl.eu.int/meetdocs/committees/juri/20030428/495099EN....
(Contribution by Andreas Dietl, consultant on EU privacy issues)