The proposed EC Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights has been making the news and blogs recently. I have finally managed to read it, and it is scary. The Article 3 of the proposed directive states that:

Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.

Although I agree with the stated purpose of the directive – to send counterfeiters and criminal gangs to jail – I would say that the language is too broad. My worry, and that shared by many people, is that this can be misused by some unscrupulous IP owners to threaten potential competitors. This could make patent infringement into an entirely different field. Imagine a cease-and-desist letter, saying “comply or you’ll go to jail”.

It is true that many firms will not go to these lengths against users, but can we really be assured about that?

Categories: Enforcement

1 Comment


Anonymous · August 5, 2005 at 3:04 pm

This doesn't bode too well if IP rights include the copyright directive's DRM provisions, requiring legal protection against the circumvention of any technological measure "designed to prevent or restrict acts.. which are not authorised by the rightholder".It is one thing to allow DRMs to protect the underlying work, as they are presumably parasitic in that respect, but any act not authorised by the rightholder goes way beyond the scope of the underlying right. And now such infringements can be rendered criminal?Of course, this will only occur when the infringement is on a "commercial scale", but many people make money out of circumventing and modifying. Equally, such activity is not limited to playstation chippers and other nefarious types; Adobe recently backed off fully supporting Nikon's new camera in Photoshop, as Nikon had encrypted part of the photo file data. The danger is that the boundaries of intellectual property rights are impinging on real property rights with quite severe sanctions.

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