WORK IN PROGRESS
If you have a question, please mail it to ipred2@ffii.org.
Q: Why does professor Hilty say the proposal is "incompatible with the fundamental structure of a democratic society"?
A: The proposal includes "joint investigation teams". This could mean that police prosecution is - at least partially - "privatised". But the police has special authorities, including the exclusive right to exert violence if and when needed. It would be incompatible with the fundamental principles of a democratic society to extend such authority to private parties, especially if they are linked to parties who have specific interests.
Q: Many Italians are losing their jobs because of piracy and counterfeit of Italian clothes. Shouldn't piracy be punishable?
A: Actually, counterfeit Italian clothes makers and sellers are already criminally prosecutable and punishable in the entire EU. The reason is that the TRIPs treaty requires criminal sanctions for trademark counterfeiting, and both the EU as a whole and the individual member states are all TRIPS signatories.
Q: What would the difference compared with today be, if the Community gets competence to adopt measures relating to the criminal law of the Member States?
A: Fundamental to the European Union is the proportionality and subsidiarity principle: the member states are still sovereign states, and the Union is only allowed to interfere if specific interests are at stake, such as the Internal Market. The European Court of Justice has decided that criminal measures are allowed too - if needed to support the established EU objectives. Indeed there is a reason to enforce environmental law very strictly, as producers who do not observe environmental measures have an apparent market advantage. This directly hurts the Internal Market.
Q: If the Community's business is the completion if the Internal Market, how does enforcement of intellectual property rights relate to that, compared to enforcement of environmental law?
A: Enforcement of intellectual property is a completely different ballgame. There is no "common market" for piracy. Theoretically, organised crime may choose the member state with the lowest punishments. But the reality is that they would rather choose the member state with the lowest probability to get caught. So the really relevant thing are prosecution priorities. But such priorities still are set by the national governments, or even at a lower level. Only they can make a proper tradeoff whether e.g. intellectual property enforcement deserves more attention than e.g. public safety or tax fraud.
Q: Many politicians speak about European values, and intellectual property is also mentioned in the Charter of Fundamental Rights of the European Union. How does the directive connect to that?
A: Some politicians have argued that insufficient enforcement efforts may jeopardise the public morale. They equate "intellectual property" infringement to theft, which is incorrect both from the legal perspective and in the public opinion. The difference is obvious: if one steals a bicycle, its owner can no longer use it, while "intellectual property" relates to information which is "non-rivalrous", as economists say.
Q: What is the difference between criminal and civil law when it comes to intellectual and industrial property?
A: The purpose of civil law is to limit and remedy damage: to compensate an owner. The purpose of criminal law is to serve the public interest, not the owners interest. "Intellectual property" cases tend to be complicated. Police and public prosecutors don't have the skills for such cases. Even apparent straightforward piracy cases can be very complicated, e.g. if a registered trademark turns out to be invalid. This happens quite often: validity checking at registration time is limited, and moreover valid trademarks can become invalid over time e.g. by "dilution". If this happens in a criminal procedure, it would halt, since parties can no longer settle. A criminal procedure is a procedure between the state and the infringer. The owner is out of the loop.
Q: Can an MEP be put in jail for using her cellphone?
A: In theory yes - the patent Cellular phone having mail and schedule functions is not yet granted, but anyone doing anything that falls within the scope of it's claims would be a criminal according to the Commission proposal. Amending the scope of the directive would fix this. Btw, a similar patent is actually granted by the EPO: Electronic mail forwarding system.
Q: Will not making patent infringement criminal help making the patent system as we know it force cleaning up the mess of invalid software patents which are polluting the system, and force strict granting guidelines?
A: No, patents are often used to threaten competitors. Banks get nervous already if a company gets involved in a civil court case. The threat of a criminal case - or even the risk of being earmarked as a "criminal organisation" - would substantially increase the threat. This would further distort a proper balance.
Q: Isn't the police is cheaper than an attorney for an SME that can not afford a civil law suit?
A: Yes, it is, but otherwise police involvement does not help anybody. The police (and the public prosecutor) lack the specific skills needed for such complex cases. And the rights owner will seek damage remedies rather than punishment. From a public perspective, the righs owner rather than the taxpayer should pay for such cases - if only because he may make ineffficient decisions of he does not bear the full cost. And remember that a previous European directive already calls for full litigation compensation by the loosing party so someone who believes to have a realistic case has no reason not to go to court for financial reasons.
Q: If you light a fire, and you burn down a forest, you will be found guilty of the crime in Spain, whether or not you meant to burn down the forest. Why should not the same principle apply to infringements?
A: Criminal law generally requires intentional behaviour. Only in exceptional cases (severe) negligence is punished.
Q: Drug trafficking and piracy is almost always conducted by the same people. Isn't it a good thing that the directive makes it easier to catch the same people for different crimes?
A: Actually it is the opposite. As far as "intellectual property" infringement is commited by organised criminals, they often switch from drugs to e.g. fake CDs and DVDs. Which is not bad from a public health perspective.
Q: Isn't "aiding, inciting, abetting copyright infringements" of a great danger for software developers, especially P2P (or any client/server developer)?
A: With "real" crimes, like murder, rape, theft, it is logical to also criminalise aiding, inciting, abetting, for instance with 2/3 of the penalty. Only when crimes are messy, aiding, inciting, abetting become a problem. But messy crimes do not belong in criminal law anyway. If the definition of the crime is strict in IPRED2 - 1:1, commercial act, intention - P2P is not covered by the directive. So the short answer is: YES!
Q: Isn't it necessary to impose severe punishment on private people too who ignore the legitimate rights of e.g. copyright owners? Isn't such theft just as bad as conventional theft? Should't we fight massive infringement in the private sphere?
A: Historically, private compying was always exempt from copyright, both for privacy and enforcement reasons. Also, private people nowadays do pay for private copying, by means of levies on blank information carriers. But people really don't perceive such infringement as theft. Unlike some politicians believe, this is unlikely to change if (maximum) punishment is increased. Rather the opposite may occur: as proper enforcement in the private sphere is virtually impossible, people will learn yet another time that there is no real need to observe the law. Alternatively, the Internet may be turned into a police state. This will no doubt eventually backfire: increased public awareness of the problems of today's copyright system that is totally out of step with modern technology may eventually influence the public opinion to the extent that the copyright system will be severely curtailed.
Q: Isn't strict copyright enforcement really required in order to allow proper compensation for artists and to foster cultural diversity?
A: Actually distributors such as book and record publishers benefit much more from copyright than the actual authors. Musicians are even prepared to give records of their creations away as publicity. Scientific writers don't get paid but have to pay publishers - who are in a very powerful position. In the Internet era however, distributors are dispensable. They try to protect their outdated businesses by invoking ignorant politicians. Copyright reform has been on the agenda of scholars for a long time. It is time to implement the proposed changes. Eventually everybody should acknowledge that copyright does not primarily serve the purpose of profit maximisation: it is meant to foster culture first.
This needs more work:
Q: Can someone be un-put in jail retroactively?
A: In simple terms: nullum crimen sine lege. That means XYZ, but several "intellectual property" infringements today already are considered crimes in several member states. So far, the propensity for actual criminal prosecution was limited, and if it ever came to a conviction, the punishments were often mild. This may all change if the European legislator has shown it really wants criminal prosecution in this area. The policy will change - still complying with existing statutes. E.g. in several countries the public prosecutor can decide for policy reasons not to prosecute certain crimes, in view of limited capacity and the general interests. Such decisions may change due to new legislation.
