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Instead of scouts cookies, evildoers sell copied Britney Spears CDs and counterfeit medicines manufactured using child labour, and that must be stopped, in particular since legit Britney Spears CDs cause enough harm as it is and everyone is tired of Viagra spam. The Criminalisation Directive, also known as IPRED2 or the directive on "criminal measures aimed at ensuring the enforcement of intellectual property rights", is officially geared at combating these organised criminals and terrorists by hitting them where it hurts: fund raising.

The Commission proposed to concretise this aim by going after secondary telephone directory providers, farmers with fields cross- pollinated by genetically modified crops, and MP3 player manufacturers who refuse to pay Italy's most famous software patent troll. In spite of a commendable Industry Committee report by David Hammerstein MEP, the European Parliament currently seems to be headed towards brandishing every second company as a criminal organisation, their customers as fences, ISPs as abetters and many teenagers as common criminals. And all this because the French and the Dutch rejected the proposed Constitutional Treaty. Now that will surely make them see the wrongs of their way!

But first things first. The directive starts from the premise that every infringement of any "intellectual property right", alias IPR or exclusion right, is inherently a crime if committed intentionally and on a commercial scale. Many of these rights, such as design rights, database rights and utility models, are however not substantially examined at all, and therefore often invalid. Macrossan just saw one of its software patents invalidated in a UK court, and a Welsh vegetarian snack company selling a "Whopper" flapjack is not necessarily trying to be associated with Burger King's trademark, let alone that it is comparable to someone counterfeiting Gucci bags. And the exceptions to copyright law are equally numerous and complex as the cases where it does apply.

The World Trade Organisation's TRIPs treaty from 1995 takes these points into account and only requires commercial scale "copyright piracy" and trademark counterfeiting to be punishable by criminal sanctions. Since both the EU and all EU member states are party to TRIPs, this is in fact already the case in the entire EU. Any alleged lacking in enforcement can moreover be brought before the WTO TRIPs Dispute Settlement Body. This directive also adds that judges must be able to impose maximum penalties of at least 100,000 to 300,000 Euro, because according to its supporters fines are currently too low in Eastern Europe. Surprise: for example Czech Republic already has a maximum penalty of 750,000 Euro for selling counterfeit goods.

It has become clear that this directive is not really about organised crime or even about helping Rolex. The reason that we have this directive at all and that most MEPs have not yet resoundingly directed it to the dustbin is mainly a political one: competence extension. Criminal law is currently part of the Third Pillar of the EU, which means that the Council of Ministers holds all the power and must decide with unanimity. The Commission and many MEPs would like it to be transferred to the First Pillar, which would give them codecision power and reduce the Council decision requirement to a qualified majority. This is one of the things the Constitutional Treaty would have taken care of if it had been approved. And as someone in Parliament told us, "some idiot in the Commission had to pick this one out of all directives" as spearheading vehicle to get that change through after all.

Unfortunately, it doesn't stop there. The music publisher's association, the IFPI, handily hopped aboard the Institutional Power Transfer Express to ensure it pleases at least one other stakeholder. They said they did not like the initial proposal because it did not apply to private, not-for-profit infringements. This means they have to sue in civil courts rather than the police doing the job for them, which is bad PR. So they started claiming that this directive says it is ok to download music without permission and that this should be stopped. In response, Janelly Fourtou MEP, wife of the Chairman of the Supervisory Board of Vivendi Universal, Nicole Fontaine MEP and Klaus-Heiner Lehne MEP have tabled amendments in the European Parliament's Legal Affairs Committee (JURI) to take out the "commercial scale" requirement.

Toine Manders MEP even tabled the following amendment:

"2a. Member States shall take the necessary measures to ensure that any purchase of goods infringing an intellectual property right is considered as fencing."

Manders was unable to explain in a radio interview how a customer in a supermarket is supposed to know whether a product's packaging infringes on the trademark of another brand. He did state that he intends the amendment to apply to downloaders though. "Purchasing" can also mean "to acquire by effort", so he may be right. He noted that he sees this directive as a way to entrench "our European moral values", to teach people about "respecting intellectual property", although he does not believe it will actually be enforced against individuals. The IFPI presumably think otherwise.

Normally, JURI would have voted on the tabled amendments on 29 or 30 January. Last week, the vote was however suddenly taken off the agenda by the Christian Democrats (EPP). The reason turned out to be that the German government has decided to waste no time in resolving "the ratification crisis surrounding the constitutional treaty". They have started informal negotiations with MEPs for a first reading compromise with the following basic premise: if the Council gets to keep the sole decision power over the level of the sanctions, they will pass the directive and thus effectuate the competence transfer from Third to First Pillar concerning criminal law as provisioned by the Constitutional Treaty. The fact that a bunch of companies and citizens are caught in the crossfire is obviously of secondary importance.

If this manoeuvring sounds familiar, the reason might be that it was also done with the IPRED1 and Big Brother/Data Retention directives. In both cases the then Council Presidency made a pre-first reading compromise with Parliament -in the latter case even behind the back of the rapporteur - in order to rush through a harshly criticised and fundamentally flawed directive. And in both cases the official pretext was also fighting organised crime and protecting the children.

In the end, everything even seems to come together: the German implementation of IPRED1, the predecessor of the current directive which allows for very harsh sanctions in case of alleged civil infringements, explicitly allows for the data gathered via the Big Brother directive to be used in civil court cases concerning patents, utility models, trademarks and design rights. The decision of whether or not that data can be used is taken by a non-specialist judge, who is not necessarily aware of the validity of the asserted rights or their scope.

Yes, you too can be the target of an "anti-terrorist" directive, or even several at the same time. All you have to do is start up a business and join the knowledge economy. To Lisbon or to Prison? The way it looks now, you do not decide. The Commission, Council and a few morality masters in Parliament will do so for you. All you have to do is think of the children and be afraid of the terrorists, and everything will be fine.

FFII IPRED2 directive analysis and background information
http://action.ffii.org/ipred2

Radio interviews with Toine Manders (in Dutch only)
http://people.vrijschrift.org/~dieter/audio/kassa-070117.mp3 http://people.vrijschrift.org/~dieter/audio/radio-online-20061219.mp3

German Government Passes "Bill for Improving the Enforcement of Intellectual Property Rights" (24.01.2007)
http://www.ipjur.com/2007/01/german-government-passes-bill-for.php3

IPRED1 directive: overview by FIPR
http://www.fipr.org/copyright/draft-ipr-enforce.html

EU adopts Big Brother directive, ignores industry and civil society (14.12.2005)
http://press.ffii.org/Press_releases/EU_adopts_Big_Brother_directive%2...

MP3 patents: Sisvel (Italian patent troll) v. Sandisk (11.01.2007)
http://eetimes.eu/design/196900047

Trademarks: Burger King v. Wholebake (11.06.2006)
http://news.bbc.co.uk/1/hi/wales/5169520.stm

UK Macrossan software patent case (30.10.2006)
http://www.out-law.com/page-7429

(Contribution by Jonas Maebe - Foundation for a Free Information Infrastructure - FFII)