April 18, 2007

Dear Members of the European Parliament,

We, the undersigned, representing European consumers, innovators and library associations, strongly oppose certain provisions of the proposed directive on the enforcement of Intellectual Property Rights. The proposal is badly drafted. It will antagonize millions of young Europeans. The provisions defining criminal offences are so vague as to amount to a threat to civil rights. We urge you to amend the proposal in order to correct these faults. Please support the set of amendments, which are listed in the attachment, to protect the interests of consumers, innovators and libraries.

In particular, we ask you to:

1. Limit the scope of the directive to clear cases of copyright piracy and trademark counterfeiting, in accordance with the international standard set in the Trade-Related Aspects of Intellectual Property Agreement, by adopting the following amendment to Article 1:

'This Directive lays down the criminal measures necessary to ensure the enforcement of copyrights and trademark rights, in so far as these rights systems are harmonized in Community legislation.'

2. Provide legal certainty by adopting precise definitions of "on a commercial scale" and "intentional infringement", to ensure that the directive criminalizes only true criminal enterprises, involving copyright piracy and trademark violations done on a commercial scale, with the intention of earning a profit from the enterprise, by adopting the following amendment to Article 2:

'For the purposes of this directive:
(a) "intellectual property rights" means
- copyright,
- trademark rights.
(b) For the purpose of this directive "on a commercial scale" means a large number of repeated infringements committed in pursuit of a direct pecuniary gain, excluding in particular any act carried out by a private person not intended to earn a profit.
(c) "intentional infringement" of an intellectual property right means a deliberate, conscious and malicious infringement with regard to the existence of the infringed right.'

3. Avoid creating an unprecedented scope of secondary liability for Internet intermediaries, ICTs, software vendors and a range of legitimate business activity, by removing the words "aiding or abetting and inciting" and adopting the following amendment to Article 3:

'Member States shall ensure that the intentional infringement of an intellectual property right on a commercial scale is treated as a criminal offence.'

If these amendments are not adopted we urge you to reject the proposed directive in its entirety.

The undersigned organizations remain available to discuss our concerns with Members of Parliament at any time.

Thank you for your consideration.

Foundation for a Free Information Infrastructure

"It is essential to make a good distinction between legitimate businesses and pirates. While FFII welcomes taking out patents, it is not enough. And secondary liability is a major threat for software developers and internet service providers."
- Ante Wessels of the Foundation for a Free Information Infrastructure.

Electronic Frontier Foundation

"Criminal law needs to be clear to be fair. IPRED2 as it is currently drafted is neither. These amendments clarify that criminal sanctions should be saved for true trademark counterfeiters and copyright pirates. They would provide much-needed legal certainty for consumers and protect libraries, innovators and legitimate businesses from the threat of potential secondary liability for "inciting" infringement"
- Erik Josefsson, European Affairs Coordinator, Electronic Frontier Foundation.

BEUC, the European Consumer organisations

"Under this current proposal the children of MEPS, together with millions of other young Europeans, would be subject to ill-defined threats of criminal sanctions. In pressing for this draconian proposal the industry is fighting its own best current and future customers - not the best of business models."
- Jim Murray BEUC Director

EBLIDA, European Bureau of Library, Information and Documentation Associations.

"An essential role for libraries and archives is to provide and facilitate equal access to digital and online content in a European context. EBLIDA believes that the current draft of IPRED 2 creates legal uncertainty and confusion which will act as a barrier for libraries and archives in their efforts to digitize and bring digital information to end users. Libraries and archives must be able to continue their dissemination of information to the public for non commercial purposes without the threat of criminal measures."
- Andrew Cranfield Director EBLIDA