This page provides an analysis of the amendments tabled by the members of the LIBE Committee to the [ffii:action:ipred2 IPRED2 directive]. Tabled amendments have been voted on on Monday, 11 December 2006, at 19:00 .
If the Vote outcome column says "N/A", this means the amendment was not voted on because it was masked by the adoption of a previously voted amendment. "W" means that the submitter withdrew his/her amendment.
Also available is the official text of the final adopted report (Word doc).
Legislative Proposal
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
5 |
Catania, Guidoni, Buitenweg |
+++ |
- |
The Committee on Civil Liberties, Justice and Home Affairs calls on the Committee on Legal Affairs, as the committee responsible, to propose rejection of the Commission proposal. |
6 |
Mastenbroek |
Justification
The legal means to combat piracy are already available (TRIPs). Only a thorough investigation as to the legal and factual conditions could show more criminal measures are needed. Apart from very general remarks regarding its competence, nothing in the explanatory memorandum to the proposal indicates that such an investigation was undertaken by the Commission, and, if so, what specific results it produced. There is also no evaluation yet of Directive 2004/48 (IPRED1) and whether there is in fact a real need for extra criminal sanctions in addition to the harsh civil measures it allows (e.g., confiscation for up to 30 days before the defendant is heard, and private agents which can carry out search warrants).
Title
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
0 |
|
Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights. |
10 |
Guardans |
+ |
- |
Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights in the fight against counterfeiting and piracy. |
Am 10 only changes the title. It matches the official justification of the directive but not the articles of an unamended Commission's proposal.
Article 1
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
--- |
|
This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights. |
24 |
Mastenbroek |
++ |
- |
This Directive lays down the criminal measures necessary to ensure the enforcement of copyrights and trademark rights, in so far these rights' systems are harmonised and provided for in Community legislation. |
22 |
Catania, Guidoni, Buitenweg |
++ |
- |
This Directive lays down the criminal measures necessary to ensure the enforcement of copyrights and trademark rights, in so far these rights systems are harmonised in Community legislation. |
23 |
Guardans |
|||
21 |
Wieland |
-- |
a+, b+, c+, d+, e+, f+, g-, h-, i+, j-, k- |
This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights. |
g) patent rights, including rights derived from supplementary protection certificates; |
||||
i) utility model rights; |
||||
j) plant variety rights; |
||||
25 |
Cappato |
+ |
- |
1. This Directive lays down criminal measures necessary to combat and deter the intentional infringement of intellectual property rights on a commercial scale |
26 |
Cappato |
+ |
N/A |
2. It harmonises these criminal measures at EU level where this is necessary to combat the intentional infringement of intellectual property rights committed under the aegis of a criminal organisation, or where they carry a health or safety risk. |
Justification
Com has an open scope (IPR as an undefined term, numerus clausus principle infringed)
Am 22, 23, 24 limit the scope of the directive to those cases for which the Commission has provided some justification (intentional trademark counterfeiting and copyright piracy on a commercial scale), and only to the extent permitted by ECJ C-176/03.
Am 21 leaves the scope open ("at least the following rights") and moreover explicitly includes various IPR's without arguing why they should be included (other than that the Commission deemed them included in IPRED1). No substantial arguments are presented at all. Not all these rights are Community law, the amendment is not conform ECJ C-176/03. This amendment's justification on the other hand, which states that all infringements to be covered by the directive should be inside the directive and not left to the Commission, is quite correct.
Am 25 leaves the scope open, the conditions of "intentional infringement" and "commercial scale" (which need to be further defined to have a limiting effect, see After Article 2, new) are better placed in art 3.
Am 26 proposes to limit application to those cases the Commission mentioned (but did not substantiate), although in principle health/safety risks are an orthogonal issue unrelated to IPR infringements and should not be mixed in this directive (endangering public health should always be punishable, regardless of IPR infringement or not).
After Article 1 (new)
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
27 |
Guardans |
+ |
+ |
In particular, this Directive does not apply to any infringement of an intellectual property right related with: |
29 |
Mastenbroek |
- |
N/A |
Without prejudice to measures that already exist in Member States, the measures laid down in this Directive shall apply only to wilful, commercial and intentional trademark infringement or copyright piracy. |
28 |
Cappato |
+++ |
N/A |
Without prejudice to measures that already exist in Member States, the measures laid down in this Directive shall apply only to wilful trademark infringement or copyright piracy. |
30 |
Cappato |
0 |
N/A |
The non-profit exchange between individuals of legally acquired content is excluded from the scope of this Directive. |
31 |
Mastenbroek |
0 |
- |
The non-profit exchange between individuals of content is excluded from the scope of this Directive. |
Justification
Am 27 excludes a number of IPRs which for whose inclusion the Commission provides no explanation, and where commercial scale infringement is often of a non-criminal nature. However, there is no indication why other rights such as database or plant variety rights should remain included in the scope.
Am 28 properly limit the scope of the directive to fields for which the Commission provided examples.
Am 29 as a derivate of Am 28 takes both TRIPs 61 wording (wilful) and the corresponding EU synonym (intentional). It is not clear: are 'wilful' and 'intentional' two different case groups (are wilful, commercial and intentional case groups or criteria which all apply?)
Am 30 and Am 31 may not have any effect at all, depending on how "exchange" is interpreted (giving one item in return for another, or sharing/copying).
After Article 2 (new)
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
33 |
Catania, Guidoni, Buitenweg |
++ |
- |
For the purposes of this Directive, “infringement” means an infringement where the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion. |
1 |
Wieland |
- |
W |
For the purposes of this Directive, acts "on a commercial scale" means acts carried out for direct or indirect economic or commercial advantage. |
35 |
Guardans |
- |
+ |
“on a commercial scale” means acts carried out with the intention to earn a direct |
- |
or indirect |
|||
+ |
economic or commercial profit, or acts carried out at such a large scale that may cause a significant direct loss for the holder of that right. |
|||
36 |
Mastenbroek |
+ |
N/A |
For the purposes of this Directive, “commercial scale” means “commercial activity with an intention to directly earn a financial profit”. |
37 |
Catania, Guidoni, Buitenweg |
+ |
N/A |
For the purposes of this Directive, “commercial scale” means “commercial activity with an intention to earn a profit”. |
39 |
Mastenbroek |
+ |
N/A |
For the purposes of this Directive, "infringement on a commercial scale" means for-profit infringement of an intellectual property right which aims to cause significant direct financial loss to the holder of that right. |
34 |
Cappato |
+ |
N/A |
For the purposes of this Directive, "infringement on a commercial scale" means for-profit infringement of an intellectual property right which causes significant direct loss to the holder of that right. |
40 |
Catania, Guidoni, Buitenweg |
++ |
N/A |
For the purposes of this Directive, “infringement on commercial scale” means commercial activity with an intention to earn a profit, which causes significant direct loss for the holder of that right. |
32 |
Wieland |
+ |
N/A |
For the purposes of this Directive, acts carried out "in a commercial manner" means acts committed with the intention of obtaining, through their repeated commission, a source of income of a certain permanence and significance. |
41 |
Mastenbroek |
+ |
- |
For the purposes of this Directive, "intentional infringement of an intellectual property right" means deliberate and wilful infringement of that right. |
38 |
Cappato |
+ |
- |
For the purposes of this Directive, "intentional infringement of an intellectual property right" means deliberate and knowing infringement of that right. |
Justification
Am 33 is a very good general amendment which lays down a basic condition for both copyright piracy and trademark counterfeiting, as defined by the Max Planck Institute in its position paper on the directive. By using the phrasing "emulates the characteristic elements or distinctive sign" it also addresses potential concerns that amendments demanding 1:1 identical copies might be too narrow. This amendment is essential to make a distinction between piracy and normal business conflicts over the extent of protection. Without this distinction, the directive is disproportionate and may be annulled.
Am 1:
The definition of "commercial scale" in combination with the scope includes several business acts which are not necessarily criminal in nature. In all of the following cases the final verdict was "no infringement", but if the accused had risked criminal penalties they might not have even started their business activities. Moreover, even if there had been an infringement none of the cases below pertain to criminal organisations or activities, although they would fulfill all requirements of this directive in the Commission's and Mr Zingaretti's version:
Trademarks and trade names, e.g. Hasbro v. Clue Computing -- Starbucks v. STARPREYA -- Gerolsteiner Brunnen v. Putsch
Copyright, e.g. Lewis Perdue v. Dan Brown (The Da Vinci Code) -- Jennifer Armour v. Beyoncé -- YachtWorld v Nautical Solutions Marketing Inc
Database right, e.g. the British Horseracing Board v. William Hill -- Électre v. T.I. Communication and Maxotex, Groupe Moniteur and others v. Observatoire des Marchés Publics, ...
- Additionally, the definition of "commercial scale" does include most IPR-infringements by private persons for non-criminal purposes, since those private persons most likely obtain an indirect or even direct economic advantage by doing so (by e.g. spending less money).
Am 35 gives a fairly weak definition of commercial scale, since an individual downloading copyrighted material from the Internet while not being licensed to do so may be considered to "earn an indirect economic profit" (by not having to pay for this material). Given that it uses "or" between the two sentences, either is enough to fullfil the conditions. Therefore the same criticism as to Am 1 applies, since the first part of this amendments is almost the same as Am 1.
Am 36 and Am 37 give basic definitions for commercial scale.
Am 34 and Am 39 are similar to what was approved in ITRE. Am 40 changes "for-profit", it becomes "commercial activity with an intention to earn a profit". This is better since judges cannot read minds to discover the intention. There needs to be an activity which can be used to deduct a particular intention.
Am 32 is a very good definition for activities on a "commercial scale" (its justification talks about commercial scale, the amendment about "commercial manner" -- probably a translation inaccuracy). Compare also Wieland's other 'on a commercial scale' am 1 for article 2. Am 32 does not mask an 'infringement on a commercial scale' amendment for article 2 (at least when worded as Am 40 which recurses on "commercial activity" and adds 'loss' due to the infringement), but it could well be that Am 32 will be used to inhibit voting on Article 2 'commercial scale infringement' amendments.
Article 3
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
-- |
|
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. |
45 |
Mastenbroek |
+ |
- |
(1) Member States shall ensure that the intentional infringement of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are is treated as a criminal offence. |
43 |
Catania, Guidoni, Buitenweg |
+++ |
- |
Member States shall ensure that copyright infringements are treated as criminal offences, if the following elements are fulfilled cumulatively: |
44 |
Guardans |
+ |
- |
Member States shall ensure the treatment as criminal offences of all intentional copyright infringements committed on a commercial scale. |
42 |
Cappato |
+ |
- |
Member States shall ensure that the intentional infringement of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are is treated as a criminal offence. |
2 |
Wieland |
--- |
- |
Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, organising, directing, aiding or abetting, facilitating and inciting such infringements, are treated as criminal offences. |
Justification
Am 45 is similar to Am 43/Am 48 combined, but potentially broader as it does not replace the general 'IPR infringement' criminalisation clause. What infringements are covered by case group (1) other than copyright piracy (2) or trademark counterfeiting (3)?
Am 43 takes on board the recommendations made by Max Planck Institute, solve the problems with the Commission text and Am 2, and properly define which infringements may need criminal sanctions. Am 43 + 48 is essential to limit the directive to cases of clear piracy and counterfeiting. In less straightforward cases – in particular when the conflict concerns the scope of protection granted vis-à-vis similar goods or achievements – sanctions under civil law can usually be regarded as sufficient from a Community perspective (notwithstanding rules of national law). Am 43 contains only the counterfeiting part, and piracy is covered by Am 48.
Am 44 and Am 42 properly remove aiding/abetting/... from the scope of the directive.
Am 2 widens a broad scope. Facilitating refers to indirect support. For instance the existence of internet communication protocols indeed facilitates copyright infringements. Consequently developers of new technology would be made liable for side effects of technological progress. With Am 2 intention is not required anymore. Criminal measures would become stronger than existing civil liabilities.
Moreover national law systems have their own general systems dealing with for "attempting, aiding or abetting and inciting". The Community does not have the right to harmonise these systems, not even after C-176/03. Harmonisation on a directive by directive basis will create different rules for aiding/abetting/... depending on the crime committed (as shown by Am 36). The end result will be more fragmented than the current situation.
After Article 3 (new)
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
46 |
Cappato |
0 |
- |
Furthermore Member States shall ensure that attempting, aiding, or abetting and inciting such infringements are treated as criminal offences where the attempting, aiding, or abetting and inciting: |
51 |
Guardans |
- |
- |
The offence definition shall include as well the acts of attempting, organising, directing, aiding or abetting, facilitating and inciting the infringements specified in this article. |
50 |
Catania, Guidoni, Buitenweg |
++ |
N/A |
Criminal sanctions are not to be applied in cases of parallel importation of original goods, which have been marketed with the agreement of the rightholder in a country outside the EU. |
47 |
Cappato |
+ |
N/A |
Criminal sanctions are not to be applied in cases of the parallel importation of original goods which have been marketed with the agreement of the holder of the right in a third country. |
48 |
Catania, Guidoni, Buitenweg |
++ |
- |
Member States shall ensure that trade mark infringements are treated as criminal offences, if the following elements are fulfilled cumulatively: |
49 |
Guardans |
+ |
+ |
Member States shall ensure the treatment as criminal offences, when committed on a commercial scale, of all intentional trade mark infringements consisting in the use of a sign which is identical with the trade mark in relation to goods or services which are identical with those for which the trade mark is registered. |
52 |
Wieland |
0 |
- (18/22) |
1. Each Member State shall take the necessary measures to ensure that legal persons can be held liable for any of the offences referred to in Article 3 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on one of the following: |
Justification
Am 51 includes aiding/abetting/..., which increases fragmentation of national law systems. See Am 2.
Am 50. In such cases a genuine product, made by the right holder or with his consent, is sold. This cannot be considered as piracy or counterfeiting.
Am 47: In such cases a genuine product, made by the right holder or with his consent, is sold. This cannot be considered as piracy or counterfeiting. Am 50 is better, since parallel importation most often does not involve a third country.
Am 48 is the piracy counterpart of Am 43.
Am 49 is ok, but misses the "intent to earn a profit" and "deliberate and knowing infringement" conditions ("intentional" may or may not cover the latter condition, depending on the national legislation).
Am 52 defines basics of criminal law: Who is liable? In the context of organised crime it is an important question which clarifies somewhat unprecise organised crime terminology. However, 2005/0127 COD is a special purpose directive project. Council strongly questioned an inclusion of legal/judicial person definitions. Am 52 exceeds the scope of the directive.
Article 4
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
-- |
|
1. For the offences referred to in Article 3, the Member States shall provide for the following penalties: |
2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases: |
||||
53 |
Catania, Guidoni, Buitenweg |
++ |
- |
For the offences referred to in Article 3, the Member States shall provide for effective, proportional and dissuasive penalties. |
55 |
Mastenbroek |
++ |
- |
2. (deleted) |
54 |
Wieland |
0 |
+ |
2. For the offences referred to in Article 3, the Member States shall also provide, in appropriate cases, for the necessary measures to ensure that a natural or legal person held liable is punishable by effective, proportionate and dissuasive penalties, |
- |
which may include criminal or non-criminal fines and other penalties, |
|||
+ |
such as: |
|||
56 |
Guardans |
0 |
+ |
2.(a) destruction of the goods infringing an intellectual property right and, in appropriate cases seizure or destruction of the materials or elements principally used for the creation or manufacture of those goods. |
3 |
Wieland |
- |
N/A |
(b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence; |
Justification
Am 53 and Am 55 are the only ones that certainly conform with ECJ case C-176/03.
Am 54 might be compliant with ECJ case C-176/03 as well because of its use of "for example", but for legal certainty Am 53 and Am 55 are preferable. A Council Framework decision is at this time still the correct place to specify the actual criminal measures to be taken (while a first pillar instrument can only state that appropriate criminal measure must be possible in certain circumstances).
Article 5
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
-- |
|
1. Each Member State shall take the necessary measures to ensure that, when committed by natural persons, the offences referred to in Article 3 are punishable by a maximum sentence of at least four years' imprisonment when committed under the aegis of a criminal organisation within the meaning of Framework Decision …. on the fight against organised crime, or where they carry a health or safety risk. |
57 |
Catania, Guidoni, Buitenweg |
++ |
- |
(deleted) |
58 |
Guardans |
- |
- |
1. Each Member State shall take the necessary measures to ensure that, when committed by natural persons, the offences referred to in Article 3 are punishable by a maximum sentence of at least four years' imprisonment when committed under the aegis of a criminal organisation within the meaning of Framework Decision …. on the fight against organised crime, when they have caused an important quantitative damage to the rightsholder, or where they carry a health or safety risk. |
59 |
Newton Dunn |
- |
- |
1. Each Member States shall take the necessary measures to ensure that, when committed by natural persons, the offences referred to in Article 3 are punishable by a maximum sentence of at least four years’ imprisonment when committed under the aegis of a criminal organisation within the meaning of Framework Decision …. on the fight against organised crime they are considered to be a serious crime, or where they carry a health or safety risk. |
60 |
Newton Dunn |
- |
- |
2. Member States shall take the necessary measures to ensure that, when committed by natural persons or legal entities, the offences referred to in Article 3 are punishable by effective, proportionate and dissuasive penalties. These penalties shall include criminal and non criminal fines: |
61 |
Newton Dunn |
0 |
- |
Member States shall take the necessary measures to ensure that repeat offences committed by natural persons or legal entities in another Member State of the offences referred to in Article 3 are taken into account when deterring the level of the penalties referred to in paragraph 1 and 2 of this Article. |
Justification
Am 57: art 4 as amended by Am 53 already mentions the sanctions that conform with ECJ C-176/03.
Am 58 remains incompatible with ECJ C-176/03 by specifying the minimal maximum jail sentence, and widens the scope of applicability to any situation where "important quantitative damage" has been done to a rightsholder
Am 59 remains incompatible with ECJ C-176/03 and moreover makes use of the undefined term "serious crime", thereby increasing legal uncertainty.
Am 60 remains incompatible with ECJ C-176/03 by specifying specific minimal maximum fines.
Am 61 is a matter of general EU judicial cooperation and too specific. It will open new competence questions which inhibit or delay the adoption of the directive.
Article 6
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
- |
|
The Member States shall take the necessary measures to allow the total or partial confiscation of goods belonging to convicted natural or legal persons in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime Related Proceeds, Instrumentalities and Property, at least where the offences are committed under the aegis of a criminal organisation, within the meaning of Framework Decision …. on the fight against organised crime, or where they carry a health or safety risk. |
64 |
Guardans |
- |
+ |
In the cases provided for in article 5 of this Directive, the Member States shall take the necessary measures to allow the total or partial confiscation of goods belonging to convicted natural or legal persons in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime Related Proceeds, Instrumentalities and Property, at least where the offences are committed under the aegis of a criminal organisation, within the meaning of Framework Decision …. on the fight against organised crime, or where they carry a health or safety risk. |
63 |
Wieland |
0 |
W |
The Member States shall take the necessary measures to allow the total or partial confiscation of goods belonging to convicted natural or legal persons in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime Related Proceeds, Instrumentalities and Property, at least where the offences are committed under the aegis of a criminal organisation, within the meaning of Framework Decision …. on the fight against organised crime, or where they carry a health or safety risk. |
66 |
Newton Dunn |
- |
N/A |
The Member States shall take the necessary measures to allow the total or partial confiscation of goods belonging to convicted natural or legal persons in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime Related Proceeds, Instrumentalities and Property, at least where the offences are committed under the aegis of a criminal organisation, within the meaning of Framework Decision …. on the fight against organised crime a serious crime, or where they carry a health or safety risk. |
62 |
Catania, Guidoni, Buitenweg |
+ |
N/A |
The Member States shall take the necessary measures to allow the total or partial confiscation of goods belonging to convicted natural or legal persons in accordance with Article 3 of Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime Related Proceeds, Instrumentalities and Property, at least where the offences are committed under the aegis of a criminal organisation, within the meaning of Framework Decision …. on the fight against organised crime, or where they carry a health or safety risk. |
65 |
Mastenbroek |
Justification
Am 63 goes in the right direction by removing the unrelated health and safety risk conditions, but leaves the scope open ("at least where ...").
Am 64 also removes this conditions, but also takes out the "organised crime" condition and refers to article 5 which should be deleted.
Am 66 makes use of the undefined term "serious crime", thereby increasing legal uncertainty.
Am 62/63 closes the scope of where this article can be applied.
After Article 6 (new)
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
67 |
Catania, Guidoni, Buitenweg |
++ |
+ |
6 a) (new) Member States shall ensure that through criminal, civil and procedural measures, the misuse of threats of criminal sanctions can be prohibited and subject to penalties. |
68 |
Mastenbroek |
++ |
N/A |
6 a) (new) Member States shall ensure that through criminal, civil and procedural measures, the misuse of threats of criminal sanctions can be prohibited and subject to penalties. Member States shall also prohibit procedural misuse. |
69 |
Mastenbroek |
+ |
? |
6 b) (new) Member States shall ensure that the rights of defendants shall be duly protected and guaranteed. |
Justification
Am 67, 68: The potential for a rightholder to deter potential infringers (i.e., competitors) increases considerably if he can threaten them with criminal penalties. Both international (TRIPs) and European law require the prevention of misuse of IP rights. Misuse disrupts free competition, in contravention of Art. 28 et seq. and 81 et seq. EC.
Am 69 is self-evident.
Article 7
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
- |
|
The Member States must ensure that the holders of intellectual property rights concerned, or their representatives, and experts, are allowed to assist the investigations carried out by joint investigation teams into the offences referred to in Article 3. |
70 |
Catania, Guidoni, Buitenweg |
++ |
+ |
(deleted) |
71 |
Guardans |
|||
72 |
Mastenbroek |
|||
73 |
Wieland |
0 |
N/A |
The Member States must ensure that the holders of intellectual property rights concerned, or their representatives, and experts, are able to contribute in an appropriate way to the success of the investigations. |
74 |
Cappato |
+ |
N/A |
The Member States must ensure that the holders of the intellectual property rights concerned, or their duly mandated representatives and experts, are allowed to assist shall provide information to the joint investigation teams into investigating the offences referred to in Article 3. |
75 |
Mastenbroek |
+ |
N/A |
The Member States must ensure that The holders of intellectual property rights concerned, or their representatives, and experts, are allowed to assist provide information to the joint investigation teams into investigating the offences referred to in Article 3. |
Justification
Am 70/71/72 rejects privatisation of investigations, about which the Max Planck Institute wrote: "The obligation of Member States to delegate functions within the conduct of criminal investigations to private parties in such a diffuse manner is therefore incompatible with the fundamental structure of a democratic society."
Am 73 is unclear about how exactly these third parties are allowed to contribute and may still taint the required independence of criminal investigations.
Am 74 and Am 75 make this recital harmless.
Article 8
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
-- |
|
Member States shall ensure that the possibility of initiating investigations into, or prosecution of, offences covered by Article 3 are not dependent on a report or accusation made by a person subjected to the offence, at least if the acts were committed in the territory of the Member State. |
76 |
Catania, Guidoni, Buitenweg |
++ |
- |
(deleted) |
77 |
Mastenbroek |
Justification
Am 76/77: Criminal investigation authorities should not be able to act on their own initiative without a prior complaint of the rights owner, because licensing arrangements are not published and the rights owner has the fundamental right to dispose of his rights as he desires. See also Am 17.
After Article 8 (new)
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
78 |
Cappato |
+ |
+ |
Article 8 of the Charter of Fundamental Rights of the European Union, which concerns the protection of personal data, and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1 shall be fully respected in the course of investigations and judicial proceedings. |
79 |
Mastenbroek |
Am 78 and Am 79 are self-evident, in particular in the light of the "innocent until proven guilty" principle of criminal law.
Article 9
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
0 |
|
1. Member States shall bring into force the provisions necessary to comply with this Directive by ……. at the latest [eighteen months after the date of its adoption]. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. |
80 |
Mastenbroek |
0 |
- |
1. Member States shall bring into force the provisions necessary to comply with this Directive by ……. at the latest [eighteen months after the date of its adoption] and only after Directive 2004/48 has been fully implemented. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive. |
Justification
Directive 2004/48 has already been implemented by most (if not all) member states. A more interesting condition would be extension until the effectiveness of Directive 2004/48 has been evaluated, as well as the need for extra criminal sanctions on top of it.
Recital 5
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
- |
|
(5) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights11 lays down measures, procedures and civil and administrative remedies. A sufficiently dissuasive set of penalties applicable throughout the Community is needed to make the provisions laid down in this Directive complete. Certain criminal provisions need to be harmonised so that counterfeiting and piracy in the internal market can be combated effectively. The Community legislator has the power to take the criminal-law measures that are necessary to guarantee the full effectiveness of the rules it lays down on the protection of intellectual property. |
11 |
Mastenbroek |
+ |
- |
(5) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights11 lays down measures, procedures and civil and administrative remedies. The full implementation of these measures and remedies are a prerequisite for developing any other additional measures and remedies. |
12 |
Mastenbroek |
+ |
- |
(5) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights11 lays down measures, procedures and civil and administrative remedies. The full implementation of directive 2004/48/EC is a prerequisite for developing any other additional measures and remedies. |
Justification
Recital 7
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
-- |
|
(7) The level of sentencing for natural and legal persons who have committed such offences must be harmonised. In particular, the rules on prison sentences, fines and confiscation must be harmonised. |
13 |
Mastenbroek |
+ |
- |
(deleted) |
Justification
Am 13 ensures ECJ 176/03 compliance.
Recital 8
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
-- |
|
(8) Provisions must be laid down to facilitate criminal investigations. The Member States must ensure that the holders of intellectual property rights concerned, or their representatives, and experts are allowed to assist the investigations carried out by joint investigation teams. |
14 |
Catania, Guidoni, Buitenweg |
+ |
+ |
(deleted) |
15 |
Guardans |
|||
16 |
Mastenbroek |
Justification
Am 14, 15, 16: the Commission's recital is almost literally the same as the related article without further explanations or justifications. See also Am 70.
Recital 9
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
Original |
Commission |
-- |
|
To facilitate investigations or criminal proceedings concerning intellectual property offences, these may not be dependent on a report or accusation made by a person subjected to the offence. |
17 |
Catania, Guidoni, Buitenweg |
++ |
- |
(deleted) |
18 |
Mastenbroek |
Justification
Am 17, 18: The Commissions proposal weakens exercising intellectual property rights. It enables the State to intervene in cases where a rights holder consents to the infringement of his rights, or where a private licensing agreement unknown to the outside world is in effect.
Mutual patent indemnification contracts (agreement not to sue each other or respective customers without explicit license), which are usually not published, are rendered meaningless. In the case of unilateral permissions the user even receives no contract. This provision would cause a shift to a more formal and bureaucratic IPR licensing system resulting in higher transaction costs for both the rights holder and the user. Ams 17 and 18 keeps the current flexible regime.
Recital 9 a (new)
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
19 |
Cappato |
+ |
+ |
(9a) The rights set out in the Charter of Fundamental Rights of the European Union should be fully respected when defining criminal acts and penalties, during investigations and in the course of judicial proceedings; |
Justification
Am 19: self-explanatory and evident.
Recital 10 a (new)
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
20 |
Mastenbroek |
+ |
N/A |
(10a) It is understood that the non-commercial sharing of files between individuals is excluded from the scope of this Directive. |
Justification
Am 20: Criminal law is meant only for the extremely serious acts which are impossible to solve in an adequate manner with civil law (civil law is always preferred to criminal law since it's constructive rather than destructive: geared at compensation of the victim rather than punishment of the perpetrator). Including minor offences such as non-commercial (illegal) file sharing in the criminal scope would violate the proportionality principle.
Texts to have been debated in the event of rejection of the motion as amended
Recitals
Number |
Submitter |
Recommendation |
Vote outcome |
Text |
7 |
Catania, Guidoni, Buitenweg |
+ |
N/A |
(1a) Agrees with the Dutch Government, which in July 2006 stressed that the legal instruments to combat piracy already existed and rejected the present directive as unnecessary, taking the view also that the Commission has no competence to propose a directive making intellectual property rights infringement an offence. |
8 |
Catania, Guidoni, Buitenweg |
+ |
N/A |
(1b) Agrees with the Dutch Parliament, which believes that there is no clear need for a directive of this kind and that the Commission is wrongly interpreting the judgement of the Court of Justice of the European Communities in Case 176/03, extending its sphere of legislative intervention into an area for which it has no competence. |
9 |
Cappato |
+ |
N/A |
(1a) Draws the attention on the statement of the Dutch Government of July 2006 that the legal instruments to combat piracy already exist and therefore deems the present Directive unnecessary, and moreover that the Commission has no competence to propose a directive making intellectual property rights infringement a criminal offence. |
Justification
Am 7, Am 8 and Am 9 remind the legislator of the letter sent by the Dutch Parliament to Commissioner Frattini, in which they noted that the present directive is unnecessary and goes beyond what is allowed by ECJ 176/03. These amendments do not change anything by themselves, but serve as reminder to the other political players.
