European Parliament hearing, 22 November 2005 (see report)

FFII Presentation by Ante Wessels

In order to fight piracy, IPRED 2 makes all commercial violations of "intellectual property rights" a crime. All commercial violations. But not all commercial violations of these rights are piracy. Trademark and patent infringements are always commercial infringements, but by no means always piracy. This criminalisation of acts by commercial organisations that are not pirates is very serious. The principal issue is that IPRED 2 confuses piracy and commercial infringement. IPRED 2 criminalises companies that are not pirates.

* Take copyright. The question whether a work is an 'independent recreation" or a "violation of copyright" is a subtle question. Questions like these should be handled in civil courts, not in criminal courts. For reasons of human rights, criminal laws require precise definitions. And criminal law should be the ultimum remedium. With IPRED 2, any journalist can be prosecuted that makes a citation that is a bit too long.

* Take Patent law. Patent law definitions are unclear and drifting. In some sectors, like the software industry, it is impossible not to violate patents. Microsoft has been violating many patents, and had to pay huge damages. But do we really want to see Bill Gates in prison? He can go to jail, together with Europe's software developers, since IPRED 2 criminalises companies that are not pirates.

Trade mark counterfeiting and copyright piracy are already forbidden in European countries. On a world-wide scale, the TRIPS treaty sees to that. Furthermore, IPRED 1 is being implemented right now. At the moment no assessment can be made whether an instrument is missing. Yet prison sentences go up more than a 100 times in some cases.

IPRED 2 is excessive and distorts carefully balanced national procedural law systems.

For the sake of protection of carefully balanced national procedural law systems, subsidiarity and legal security,

in order to keep Europe's software developers out of jail,

we ask you to reject these superfluous and detrimental proposals.

The European Parliament rejected the software patents directive. We heartily thank you for that. The IPRED 2 directive and framework should go the same way.

Thank you.