EU mulls criminalising IP infringement in Europe

The UK and other EU member states could find themselves burdened with legislation that criminalises the infringement of patents that have not even been validated in court.

Software patents in particular are not proved valid, even after they have been granted, until a court cases establishes that claim.

Yet proposed legislation under the auspices of the Council of Ministers at the EU – a directive on ‘criminal measures aimed at ensuring the enforcement of intellectual property (IP) rights’ – would result in exactly that effect.

Until this month, the Council of Ministers, made up of representatives from all member states, had had pretty much total control over the passage of this directive, to the extent that only unanimous approval would see it pass into legislation. That’s to say, any one member state could veto the proposal.

Only 10 of the 25 member states currently make patent infringement a criminal offence. The Netherlands is one such nation but was already considering making patent infringement a civil matter, as criminal procedures were unsuitable for this type of crime. And in terms of the patent aspect, most prosections seek fiscal damages, licensing agreements or injunctions rather than prison terms if successful.

In short, it seemed unlikely that the directive would find its way into legislation in its current form until recently.

A couple of weeks ago the terms of the directive were changed so that it fell not just under the remit of the Council of Ministers but also of the European Parliament.

This means that despite the reluctance of many member states to criminalise aspects of IP infringement, the involvement of the European Parliament means that they lose their powers of veto. A simple ‘qualified majority’ – roughly two-thirds approval – might just push this through, forcing member states to change national law to comply with the directive whether or not they agree.

And it’s not just businesses that would suffer. Criminal law is paid for from the public purse, and under the proposed legislation, law enforcement of member states would be expected to seek out IP infringements and pursue them. Yet the beneficiary of these expensive suits is most likely to be a commercial entity, not the general consumer.

The goal of this directive ‘on criminal measures aimed at ensuring the enforcement of intellectual property rights’ is to combat the organised crime behind the piracy and counterfeiting that is damaging European businesses. Yet the broad brush approach is sweeping too many aspects of intellectual property law that is already adequately covered by provisions in existing legislation, according to the Freedom for a Free Internet Infrastructure (FFII).

‘The EU-Commission proposed means which divert law enforcement resources and which are not well suited to combat organised crime,’ said André Rebentisch, FFII WIPO representative. ‘Appropriate definitions for counterfeiting and copyright piracy are already available in other EU regulations, but here the Commission prefers rather vague terminology which puts our knowledge economy at risk.’

But with the recent change to give the European Parliament influence in the passage of the directive and the removal of the powers of veto from individual member states, we might being frogmarched into a world where companies are criminalised for creating software that infringes patents that may not even stand up in court.

Pieter Hintjens, FFII President, said: ‘We’re very concerned when we see IP enforcement being idolized like this, regardless of the consequences. There is a huge and vital debate about whether we need patents at all in the software industry. This law ignores that debate and seeks to enforce those patents, labeling businessmen as common criminals, terrorists, or mafiosi.’

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