Below, we provide a number of examples which demonstrate the consequences of the IPRED2 directive text as voted by the European Parliament in its first reading.
Harm to preserving our cultural heritage
In order to preserve digital sound recordings for posterity, a library unlawfully breaks the <<technical protection measure>> wrapping the digital recording, each time it lawfully receives a sound recording either by purchase or by legal deposit. This is intentional infringement (in pursuit of a lawful purpose) in order to reformat the recordings for sensible preservation. It happens routinely for hundreds of recordings. It is thus probably on a commercial scale.
Criminalising aids for the disabled
A certain Member State has no legal exception to copyright for the benefit of blind people. But in the same Member State a law requires universities and schools to provide teaching and learning materials to all people on an equitable basis, whether they have a disability or not. When a blind student comes to the university library, the library is caught by a conflict of laws. At present, the library can change a printed book into Braille or into audio format, complying with the second law, but infringing copyright.
At present the library is in breach of civil law over the copyright infringement: it infringes in order to help the blind student, knowing that the right-holders will not take legal action, because it would be absurd and unpopular for them to do so. However, once the Enforcement Directive is adopted, it becomes a criminal offence for the library to repeatedly and knowingly infringe. It has to stop providing copies in alternative formats for disabled people.
Criminalising regular communications between colleagues
If I email a copy of a market research report to my colleague at work, I am likely to infringe copyright and my firm saves anywhere between a few thousand to ten thousand euros. I would also be criminally liable under the EP's approved definitions.
Spare parts makers threatened with criminal fines (design rights)
Dyson makes vacuum cleaners. Another company, Qualtex, made spare parts for these vacuum cleaners. Dyson sued Qualtex for infringing on its unregistered design rights, because the spare parts had the same appearance as the originals. Qualtex tried to defend itself by saying they had to be designed that way because of "must match" and "must fit" requirements, as in those cases design rights to not apply. The judge however ruled those exceptions did not hold in this case.
This was a civil suit, and the result is that Qualtex had to stop making spare parts. In general, if criminal sanctions are possible for spare parts makers because their replacement parts might infringe on a design right and not fall under the exceptions of the law, this will significantly stifle the spare parts market. After all, which director wants to risk criminal sanctions for providing spare parts?
(Description of the Dyson/Qualtex case)
Criminal punishment for distributing address list of self-help groups (database rights)
In 1999, a Belgian pharmacy chain (Belpharma) copied a list of addresses of self-help groups from the website of a national health service organisation (UNMS), and distributed it as flyers in its pharmacies. After a complaint by UNMS, the judge decided that this list of addresses constituted a database and ordered Belpharma to cease infringing on UNMS' database rights.
This infringement was clearly intentional (they copied the list of addresses, including mistakes) and commercial scale (Belpharma offered an extra service for attracting more customers). Threatening the management of Belpharma with criminal fines for distributing a copied (freely available) list of address of self-help groups is however disproportionate.
(Description of the UNMS/Belpharma case)
MP3 players incite IPR infringements
The EFF wrote a very detailed case on this topic in response to the "Induce Act" proposed in the US, which would also criminalise inciting copyright infringements. The short version goes like this (from the point of view of a large music publisher):
Apple sells the popular iPod mp3 player. These players can both play purchased music, and music downloaded from the Internet. Given the huge capacities of these players, almost no one can fill them up only with music they have bought. Moreover, if these players would not be able to play music downloaded from the Internet, their appeal would be significantly lower.
Apple is thus clearly inciting people to illegally download music for putting on their iPod mp3 players.
In fact, the CEO of Universal Music has already said this in public. He wants part of Apple's income from iPod sales, because
"These devices are just repositories for stolen music, and they all know it," UMG chairman/CEO Doug Morris says. "So it's time to get paid for it."
I.e., Apple is supposedly knowing selling devices for storing "stolen music" on them, thus inciting/aiding/abetting infringements.
The young generation are a bunch of common criminals
The original Commission proposal does not define what "commercial scale" means. The adopted amendment 39=59, say it means "to obtain a commercial advantage". It goes on to say that this "excludes" private users, but this is simply not true. That extra sentence about private users is not phrased as an explicit exclusion, but as an statement which supposedly explains what the first part achieves.
However, "obtaining a commercial advantage" can be interpreted as "spending less money". For example when someone illegally downloads a song from the Internet, that person has a commercial advantage. Therefore Zingaretti's proposals would criminalise pretty much the entire younger generation, as most of them have downloaded at least a few songs or movies from the Internet.
Whether or not illegal downloading for personal use should remain a pure civil offence, or whether it should be covered by criminal law, is a separate discussion. However, the decision to either make it criminal or not should be made clearly and not via a confusing and unclear amendment.