JURI Tabled Amendments

This page provides an analysis of the amendments tabled by Members of the European Parliament to [ffii:action:ipred2 IPRED2], along with amendments derived from the reports resulting from the votes in the [ffii:action:ipred2/ITRE_Tabled_Amendments ITRE] and [ffii:action:ipred2/LIBE_Tabled_Amendments LIBE] committees. The amendments were voted on in Brussels on March 20. Successful texts have been highlighted in yellow.

If the Vote outcome column shows "cad", this means an amendment was not voted on, because of the result of a vote on an earlier amendment. (The vote was considered "caduc").

Other documents:

Legislative Proposal

Number

Submitter

Recommendation

Vote outcome

Text

10

Guidoni, Holm

+++

-

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 judgment of the Court of Justice of the European Communities in Case C-176/03 Commission v Council1, by seeking to extend its sphere of legislative intervention into an area in respect of which it has no competence;

11

Mastenbroek

+++

-

The European Parliament rejects the Commission proposal.

12

Guidoni, Holm

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 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).

Article 1

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights.
These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States.

28

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.

27

Roithová

++

-

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.

29

Guidoni, Holm

30

Lehne

0

+

This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights in the context of counterfeiting and piracy.
These measures shall apply to such intellectual property rights as are provided for in Community legislation and/or national legislation in the Member States.

Am 27, 28, 29 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 30 does not specify the rights to which the directive applies not specify precise rights and does not fix the ECJ C-176/03 conformity problem (it also lets the directive apply to non-harmonised rights).

Article 1, paragraph 1

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights.

3

Zingaretti

0

+

This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights, as defined below.

31

Lichtenberger

++

cad

This Directive lays down the criminal measures necessary to combat trade mark counterfeiting and copyright piracy effectively.

32

Graefe zu Baringdorf

0

cad

This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights. These measures shall apply only to those intellectual property rights which are defined in Article 2.

ITRE 3

ITRE

0

cad

This Directive lays down criminal measures necessary to combat and deter the intentional infringement of intellectual property rights on a commercial scale.


Justification

Am 3 and 32 in itself do not limit anything.

Am 31 follows TRIPs 61

ITRE 3 goes beyond TRIPs and combatting counterfeiting.

Article 1, paragraph 2

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States.

4

Zingaretti

Withdrawn

N/A

These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States.

35

Zingaretti

-

+

These measures shall apply to intellectual property rights, other than patents, provided for in Community legislation and/or national legislation in the Member States.

33

Roithová

++

cad

These measures shall apply to intellectual property rights, in so far these rights systems are harmonised in Community legislation.

34

Guidoni, Holm

36

Lichtenberger

++

cad

It harmonises criminal measures at EU level where this is necessary in order to combat trademark counterfeiting and copyright piracy carried out on a commercial scale.

LIBE 3

LIBE

---

cad

At least the following intellectual property rights are covered by the scope of the Directive:[[BR]]a) copyright;
b) rights related to copyright;
c) sui generis right of a database maker;
d) rights of the creator of the topographies of a semiconductor product;
e) trademark rights;
f) design rights;
g) utility model rights;

ITRE 4

ITRE

+

cad

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

LIBE 3 and Am 35 include several unexamined (and therefore often invalid) rights such as database rights (only valid if "substantial investment"), design rights and utility model rights (also called "petty patents").

ITRE 4 proposes to limit application to those cases the Commission mentioned, although in principle health/safety risks are an orthogonal issue unrelated to IPR infringements and should not be mixed in this directive.

Am 36 proposes to limit application to those cases the Commission mentioned.

Am 4 partially addresses ECJ C-176/03 compliance. For better compliance with C-176/03, the addition "in so far these rights systems are harmonised in Community legislation" is needed (e.g., we have Community Trademark law, but it only harmonises the registration office and not the substantive rules).

Am 33, 34 add the pieces missing in Am 4.

After Article 1 pararaph 2

Number

Submitter

Recommendation

Vote outcome

Text

37

Mastenbroek

-

-

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.

LIBE 4

LIBE

+

+

In particular, this Directive does not apply to any infringement of an intellectual property right related with:
-patents, utility models, and supplementary protection certificates;
-parallel importation of original goods, which have been marketed with the agreement of the rightholder in a third country.

ITRE 5

ITRE

++

-

Without prejudice to measures that already exist in Member States, the measures laid down in this Directive shall apply only to wilful trademark infringement, including counterfeiting, and copyright piracy.

26

Mayer

--

-

The measures in question shall include for example
(a) copyright;
(b) rights related to copyright;
(c) sui generis rights of a database maker;
(d) trademark rights;
(e) design rights;
(f) utility model rights;

+

Commercial rights under a patent are excluded from the scope of this Directive.

38

Mastenbroek

0

-

Exchanges of content between individuals on a not-for-profit basis shall be excluded from the scope of this Directive.

ITRE 6

ITRE

0

-

The non-profit exchange between individuals of legally acquired content is excluded from the scope of this Directive.

Am 26 has an open scope and includes several unexamined rights (database rights, design rights, utility model rights).

LIBE 4 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, utility model or plant variety rights should remain included in the scope.

ITRE 5 properly limits the scope of the directive to fields for which the Commission provided examples.

Am 37 is unclear because it seems to decouple the normally cumulative conditions of "willful" and "commercial". An oral amendment to delete "wilful" could turn this amendment into a very useful one.

ITRE 6 and Am 38: A politically involved citizen forwarding an newspaper article, for instance about a new law, is not protected by these amendments. Furthermore, the exact meaning of "exchange" is not clear enough (exchange with or without copying). To properly protect consumers, the formulation "commercial activity with an intention to earn a profit" is needed (see Art 2).

Article 2

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

0

N/A

For the purposes of this Directive, “legal person” means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.

Or

Zingaretti

-

+

For the purpose of this directive:
(a) 'intellectual property rights' means one or more of the following rights:
- copyright,
- rights related to copyright,
- sui generis right of a database maker,
- rights of the creator of the topographies of a semiconductor product,
- trademark rights, in so far as extending to them the protection of criminal law is not inimical to free market rules and research activities
- design rights,
- geographical indications,
- trade names, in so far as these are protected as exclusive property rights in the national law concerned,
- and in any event the rights, in so far as provision is made for them at Community level, in respect of goods within the meaning of Article 2(1)(a) and (b) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights; and in any event with the exclusion of patents
(d)
'legal person' means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.

-

+

(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain a direct or indirect economic or commercial advantage; this would normally exclude acts carried out by private users for personal and non-commercial not for profits purposes;

+

+

(c) 'intentional infringements of an intellectual property right' means deliberate and conscious infringement of the right concerned for the purpose of obtaining an economic advantage on a commercial scale, or acceptance of such infringement .

5

Zingaretti

Withdrawn

N/A

For the purpose of this directive:
(a) 'intellectual property rights' means one or more of the following rights:
- copyright,
- rights related to copyright,
- sui generis right of a database maker,
- rights of the creator of the topographies of a semiconductor product,
- trademark rights,
- design rights,
- trade names, in so far as these are protected as exclusive property rights in the national law concerned,
- and in any event the rights, in so far as provision is made for them at Community level, in respect of goods within the meaning of Article 2(1)(a) and (b) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights;
(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage; this would normally exclude acts carried out by private users for personal and non-commercial purposes;
(c) 'intentional infringements of an intellectual property right' means deliberate and conscious infringement of the right concerned for the purpose of obtaining an economic advantage on a commercial scale.
(d)
'legal person' means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.

39

Lichtenberger

+

cad

For the purposes of this Directive:[[BR]](a) the terms “counterfeiting” and “piracy” shall be interpreted by reference to Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights [OJ L 196, 2.8.2003, p. 7.];
(b) “infringements on a commercial scale” means a large number of repeated infringements committed in pursuit of a direct pecuniary gain, but excluding infringements committed by private users for personal purposes;
(c) “intentional infringement” of an intellectual property right means a deliberate and conscious infringement of an intellectual property right in bad faith and on a commercial scale.

40

Fontaine

--

cad

1. For the purpose of this directive:
(a) 'intellectual property rights' means one or more of the following rights:
- copyright,
- rights related to copyright,
- sui generis right of a database maker,
- rights of the creator of the topographies of a semiconductor product,
- trademark rights,
- design rights,
- geographical indications,
- trade names, in so far as these are protected as exclusive property rights in the national law concerned,
- and in any event the rights, in so far as provision is made for them at Community level, in respect of goods within the meaning of Article 2(1)(a) and (b) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights;
(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage; this would normally exclude acts carried out by private users for personal and non-commercial purposes;
(c) 'intentional infringements of an intellectual property right' means deliberate and conscious infringement of the right concerned for the purpose of obtaining an economic advantage on a commercial scale; and including in particular the counterfeiting of medicines as defined by the World Health Organisations ;
(d)
'legal person' means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.
2. For the purposes of this Directive, 'counterfeiting' means the fact of any person:
(a) holding with no legitimate reason, importing under any customs arrangements or exporting goods presented under a counterfeit trade mark;
(b) offering for sale or selling goods presented under a counterfeit trade mark;
(c) reproducing, imitating, using, affixing, deleting or modifying a trade mark, a collective mark or a certified collective mark in violation of the rights conferred by the registration thereof and of the prohibitions stemming therefrom;
(d) knowingly supplying a product or service other than that which is requested of that person under a registered trade mark.

41

Berger

--

cad

For the purposes of this Directive:[[BR]](a) “intellectual property rights” means one or more of the following rights:
- copyright,
- rights related to copyright,
- sui generis right of a database maker,
- rights of the creator of the topographies of a semiconductor product,
- trademark rights,
- design rights,
- trade names, in so far as these are protected as exclusive property rights under the national law concerned,
- and in any event the rights, in so far as provision is made for them at Community level, in respect of goods within the meaning of Article 2(1)(a) and (b) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights;
(b) “intentional infringement of an intellectual property right” means deliberate and conscious infringement of the right concerned for the purpose of obtaining an economic advantage on a commercial scale;
(c) "on commercial scale" refers to a commercial activity carried on with an intention to earn a profit, which causes significant direct loss for the holder of that right; this would normally exclude acts carried out by private users for personal and non-commercial purposes;
(d)
“legal person” means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.

42

Mayer

--

cad

For the purpose of this directive:
1) 'legal person' means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations;
2) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage; this would normally exclude acts carried out by private users for personal and non-commercial purposes;
3) 'intentional infringements of an intellectual property right' means deliberate and conscious or approvingly accepted infringement of the right concerned for the purpose of obtaining an economic advantage on a commercial scale, .


-- (Or:de "„vorsätzliche Verletzung eines Rechts des geistigen Eigentums” eine zur Erlangung eines wirtschaftlichen Gewinns in gewerbsmäßigem Umfang verübte absichtliche und bewusste oder billigend in Kauf genommene Verletzung dieses Rechts." NB: the official EN translation fails to include this alternative dolus eventualis, also misses the word "normally" in the exclusion)

43

Mayer

--

cad

For the purpose of this directive:
1) 'legal person' means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations;
2) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage; but excludes acts carried out by private users for personal purposes not centred on profit;
3) 'intentional infringements of an intellectual property right' means deliberate and conscious infringement of the right concerned for the purpose of obtaining an economic advantage on a commercial scale.

44

Roithová

++

cad

For the purposes of this Directive:[[BR]](a) “intellectual property rights” means one or more of the following rights:
- copyright,
- trademark rights;
(b)
“legal person” means any legal entity having such status under the applicable national law, except for States or any other public bodies acting in the exercise of their prerogative of public power, as well as public international organisations.

45

Guidoni, Holm

or The oral, later added, amendment contains a serious mistake. Under (c) "or acceptance of such infringement." is new. It may be meant as dolus eventualis. But unfortunately it doesn't mean the same thing at all. The way it is formulated it creates a wide secondary liability, it does not extend the intentionality. The secondary liabilities "aiding or abetting and inciting" are already heavily critisised, now an other is added.

The commercial scale definition comes from the considerations part of the civil law IPRED1 directive (2004/48/EC), not even from its articles. The amendment's text is imprecise - it uses civil law considerations as a criminal law article. Compare this with the Max Planck Institute formulation "commercial activity with an intention to earn a profit". The latter is solid criminal law.

The oral amendment furthermore has the same problems as am 5.

Am 5:

am 43 Mayer: "direct or indirect economic or commercial advantage" is too broad and lacks clarity.

am 39 : introduces the concept of bad faith; commercial scale: includes aspect of "repetition" ie. regular activity. As a second level amendments it overrules t

am 44 and 45 properly limit the scope of the directive to fields for which the Commission provided examples.

Article 2, new clause -1

Number

Submitter

Recommendation

Vote outcome

Text

46

Zingaretti

Withdrawn

N/A

For the purpose of this directive:
(a) 'intellectual property rights' means one or more of the following rights:
- copyright,
- rights related to copyright,
- sui generis right of a database maker,
- rights of the creator of the topographies of a semiconductor product,
- trademark rights, in so far as extending to them the protection of the criminal law is not inimical to free market rules and research activities,
- design rights,
- geographical indications
- trade names, in so far as these are protected as exclusive property rights in the national law concerned,
- and in any event the rights, in so far as provision is made for them at Community level, in respect of goods within the meaning of Article 2(1)(a) and (b) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights,[GU L 196 del 2.8.2003, pag. 7.] and in any event with the exclusion of patents;
(b) 'infringements on a commercial scale' means any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage; this would normally exclude acts carried out by private users for personal and non-commercial purposes;
(c) 'intentional infringements of an intellectual property right' means deliberate and conscious infringement of the right concerned for the purpose of obtaining an economic advantage on a commercial scale.


Justification

After Article 2

Number

Submitter

Recommendation

Vote outcome

Text

47

Roithová

++

-

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.

51

Guidoni, Holm

48

Handzlik

++

cad

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. For the purposes of this Directive, “commercial scale” refers to a commercial activity with an intention to earn a profit.

49

Mastenbroek

+

cad

For the purposes of this Directive, “commercial scale” means the scale of a commercial activity carried on with a view to directly earning a financial profit.

50

McCarthy

--

cad

For the purposes of thie Directive, “infringement on a commercial scale” means any infringement of an intellectual property right committed for the purpose of obtaining a direct or indirect economic or commercial advantage, including any act which causes significant harm to rightholders.
Copying by a natural person for private use and for ends that are neither directly nor indirectly commercial, within the meaning of Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [OJ L 167, 22.6.2001, p. 10] shall not fall within the scope of this Directive.

LIBE 5

LIBE

-

cad

“On a commercial scale” means acts carried out with the intention to earn a direct 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.

ITRE 8

ITRE

+

cad

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.

52

McCarthy

0

cad

For the purposes of this Directive, “intentional infringement of an intellectual property right” means an infringement of the right concerned committed with knowledge of the relevant facts.

53

Guidoni, Holm

+

cad

For the purposes of this Directive, “commercial scale” means the scale of a commercial activity carried on with the intention to earn a profit.

54

Roithová

+

cad

For the purposes of this Directive, “commercial scale” means the scale of a commercial activity carried on with a view to earning a profit.

55

Mastenbroek

+

cad

For the purposes of this Directive, “infringement on a commercial scale” means infringement for profit of an intellectual property right which is designed to cause significant direct financial loss to the holder of that right.

ITRE 9

ITRE

0

cad

For the purposes of this Directive, "intentional infringement of an intellectual property right" means deliberate and knowing infringement of that right.

56

Roithová

++

cad

For the purposes of this Directive, “infringement on a commercial scale” means a commercial activity with an intention to earn a profit, which causes significant direct loss for the holder of that right.

57

Guidoni, Holm

58

Mastenbroek

0

cad

For the purposes of this Directive, “intentional infringement of an intellectual property right” means deliberate and wilful infringement of that right.

ITRE 10

ITRE

-

cad

For the purposes of this Directive, 'counterfeiting' includes:
(a) holding with no legitimate reason, importing under any customs arrangements or exporting goods presented under a counterfeit trade mark;
(b) offering for sale or selling goods presented under a counterfeit trade mark;
(c) reproducing, imitating, using, affixing, deleting or modifying a trade mark, a collective mark or a certified collective mark in violation of the rights conferred by the registration thereof and of the prohibitions stemming therefrom;
(d) knowingly supplying a product or service having a different registered trade mark from that of the product or service requested.

Am 47/51 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 inherently disproportionate.

Am 48 combines Am 47/51 with a definition of "commercial scale" that excludes private, not-for-profit infringements.

Am 49/53/54 and Am 56/57 provide definitions of "commercial scale" resp. "infringement on a commercial scale" which exclude private, not-for-profit infringements. They all make clear that there should be an intent to earn a profit. Am 55 says that the intent should not only be to earn a profit, but also to cause a loss to the rights holder.

Am 50 is unclear. It defines "commercial scale" as, among others, acts which "cause significant harm to rights holders." It then explicitly excludes a certain class of private infringements, but includes copying performed by natural private persons which are "indirectly commercial". Sharing a file with someone else is criminalised in many cases, the young generation is criminalised. No relationship with the common market or with fighting organised crime. Criminal measures aimed at ensuring certain business models - a violation of art 5 TEC.

LIBE 5 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 it also applies to private persons committing civil infringements rather than (organised or not) criminal acts.

Am ITRE 10: points (a) and (b) are circular definitions (define "counterfeiting" in terms of "counterfeiting"), so do not clarify anything. Point (c) applies to every single conflict over the validity and scope of a trademark, and thereby would apply to e.g. all lawsuits (and even threatened lawsuits) between companies over trademarks. See e.g. Burger King v. Wholebake and L'Oreal et al v. Bellure et al. Every single trademark lawsuit becomes a criminal rather than a civil conflict with this amendment.

Article 3

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

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.

59

Guidoni, Holm

++

-

Member States shall ensure that copyright infringements are treated as criminal offences, if the following elements are fulfilled cumulatively:
(a) emulation in an unmodified fashion of protected material;
(b) commercial activity with the intention to earn a profit;
(c) significant direct loss caused to the rightholder; and
(d) intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

61

Roithová

++

-

Member States shall ensure that copyright infringements are treated as criminal offences, if the following elements are fulfilled cumulatively:
(a) emulation in an unmodified fashion of protected material;
(b) commercial activity with a view to earning a profit;
(c) significant direct loss caused to the rightholder; and
(d) intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

62

Roithová

++

-

Member States shall ensure that copyright infringements are treated as criminal offences, if the following elements are fulfilled cumulatively:
(a) emulation in an unmodified fashion of protected material;
(b) commercial activity with a view to earning a profit;
(c) intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

60

Mastenbroek

+

-

1. Member States shall ensure that the intentional infringement of an intellectual property right on a commercial scale is treated as a criminal offence.
1a. Member States shall ensure that intentional copyright infringements are treated as criminal offences, if the following elements are fulfilled cumulatively:
(a) commercial activity with a view to earning a financial profit;
(b) the aim of causing significant direct financial loss for the rightholder; and
(c) deliberate and conscious infringement of the copyright involved.
1b. Member States shall ensure that intentional trademark infringements are treated as criminal offences, if the following elements are fulfilled cumulatively:(a) use of a sign which is identical with the trademark in relation to goods or services which are identical with those for which the trade mark is registered;
(b) commercial activity with a view to earning a financial profit;
(c) the aim of causing significant direct financial loss for the rightholder; and
(d) deliberate and conscious infringement of the trademark involved.

63

Lichtenberger

+

-

Member States shall ensure that attempting, aiding or abetting and inciting trademark counterfeiting and copyright piracy are treated as criminal offences where the attempting, aiding or abetting and/or inciting:
(a) is conducted for the purposes of assisting organised crime, or
(b) constitutes a serious threat to health or safety.

Or

Gargani

-

+

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.

64

Lehne

--

cad

Member States shall ensure that all acts of counterfeiting and piracy, and attempting, aiding or abetting and inciting counterfeiting and piracy, are treated as criminal offences

65

Fourtou

--

cad

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, taking due account of the specific features of each intellectual property right.

66

Bowles

+

cad

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 when there are aggravating circumstances of organised crime, piracy or serious risk to health or safety.

67

Fontaine

--

cad

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.

ITRE 11

ITRE

--

cad

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


Justification

Am 62 properly based on the recommendations by Max Planck Institute. It is essential to limit the directive to cases of clear piracy and counterfeiting. See also 70 for trademark rights.

Without the first element, the directive will criminalise IPR disputes that are essentially of a civil nature and occur between legitimate commercial enterprises.

Without the second element, the directive will criminalise non commercial acts, acts by consumers, the young generation. This is disproportional in itself and not a common market issue.

59 and 61 stronger than 62. See also 68 and 69 for trademark righs.

Am 65 and Am 67 The directive aims to combat piracy. Non commercial infringements are to be left to national legislators (subsidiarity, proportionality). Examples of such infringements are: copying a poem and sending it in a letter to a friend. Attach a newspaper article to an email. A teenager sharing a music file. Regarding the last example: research shows the music industry can benefit from filesharing if new business models are adopted. Criminal law isn't meant for maintaining monopolies. We should not criminalise the young generation for private interests, civil law is meant for that.

Am 64 removes "commercial scale", see Am 65 and 67. Also removes "intentional", which is an essential element of a crime. Removing "intentional" is disproportional, it makes unintentional acts crimes.

63 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. The end result will be more fragmented than the current situation.

After Article 3

Number

Submitter

Recommendation

Vote Outcome

Text

68

Roithová

++

-

Member States shall ensure that trademark infringements are treated as criminal offences, if the following elements are fulfilled cumulatively:
(a) use of a sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is registered;
(b) commercial activity with a view to earning a profit;
(c) significant direct loss caused to the rightholder; and
(d) intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

69

Guidoni

LIBE 6

LIBE

++

-

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.

ITRE 12

ITRE

-

-

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 or inciting:
(a) is conducted for the purposes of assisting organised crime, or
(b) constitutes a serious threat to health or safety.

70

Roithová

++

-

Member States shall ensure that trademark infringements are treated as criminal offences, if the following elements are fulfilled cumulatively:
(a) use of a sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is registered;
(b) commercial activity with a view to earning a profit;
(c) intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

71

Guidoni, Holm

++

+

Criminal sanctions shall not 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 European Union.

ITRE 13

ITRE

+

cad

Criminal penalties 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 intellectual property rights therein in a third country.

72

Guidoni, Holm

++

+

Member States shall ensure that the fair use of a protected work, including such use by reproduction in copies or audio or by any other means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, does not constitute a criminal offence.

73

Roithová

++

cad

Criminal sanctions shall not 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 European Union.

74

Roithová

++

cad

Member States shall ensure that the fair use of a protected work, including such use by reproduction in copies or audio or by any other means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, does not constitute a criminal offence.


Justification

68 and 69: see also 59 and 61

70 see 62

LIBE 6 properly limits Trademark rights infringements to counterfeiting.

ITRE 12 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. The end result will be more fragmented than the current situation

ITRE 13: 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 71 and 72 are better, since parallel importation most often does not involve a third country.

Am 72 and 74 protect the freedom of the press.

Article 4

Number

Submitter

Recommendation

Vote Outcome

Text

Original

Commission

N/A

1. For the offences referred to in Article 3, the Member States shall provide for the following penalties:
a) for natural persons: custodial sentences;
b) for natural and legal persons:
i) fines;
ii) confiscation of the object, instruments and products stemming from infringements or of goods whose value corresponds to those products.
2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases:
(a) destruction of the goods infringing an intellectual property right;
(b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence;
(c) a permanent or temporary ban on engaging in commercial activities;
(d) placing under judicial supervision;
(e) judicial winding up;
(f) a ban on access to public assistance or subsidies;
(g) publication of judicial decisions.

75

Lichtenberger

++

-

(deleted)

76

Roithová

++

-

For the offences referred to in Article 3, the Member States shall provide for effective, proportionate and dissuasive penalties.

78

Guidoni, Holm

77

Mastenbroek

++

-

For the offences referred to in Article 3, the Member States shall provide for effective, proportionate and dissuasive penalties in accordance with national laws.

Article 4, paragraph 2

Number

Submitter

Recommendation

Vote Outcome

Text

Original

Commission

N/A

2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases:
(a) destruction of the goods infringing an intellectual property right;
(b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence;
(c) a permanent or temporary ban on engaging in commercial activities;
(d) placing under judicial supervision;
(e) judicial winding up;
(f) a ban on access to public assistance or subsidies;
(g) publication of judicial decisions.

79

Mastenbroek

++

-

(deleted)

80

Fontaine

-

-

2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases:
(a) speedy destruction of all the goods infringing an intellectual property right, save for the retention, without bond, of samples as evidence;
(b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence;
(c) a permanent or temporary ban on engaging in commercial activities;
(d) placing under judicial supervision;
(e) judicial winding up;
(f) a ban on access to public assistance or subsidies;
(g) publication of judicial decisions.
(ga) payment, by the infringer, of the costs of guarding the goods
-- ((Or: fr; ITRE revised translation))

LIBE 7

LIBE

-

-

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, such as:
(a) exclusion from entitlement to public benefits or aid;
(b) temporary or permanent disqualification from the practice of commercial activities;
(c) placing under judicial supervision;
(d) a judicial winding-up order;
(e) temporary or permanent closure of establishments which have been used for committing the offence;
(f) publication of judicial decisions;
(g) destruction of the goods infringing an intellectual property right.

Article 4, paragraph 2, introductory sentence

Number

Submitter

Recommendation

Vote Outcome

Text

Original

Commission

-

N/A

2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases:

ITRE 14

ITRE

0

-

2. For the offences referred to in Article 3, the Member States shall provide that the following penalties are also available in appropriate cases, where the public interest so requires:

Article 4, paragraph 2, point (a)

Number

Submitter

Recommendation

Vote Outcome

Text

Original

Commission

N/A

(a) destruction of the goods infringing an intellectual property right;

81

Manders

0

+

(a) destruction of the goods, including materials or equipment used for infringing an intellectual property right;

LIBE 8

LIBE

0

cad

(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.

ITRE 15

ITRE

-

cad

(a) speedy destruction of all goods infringing an intellectual property right, save for the retention, without bond, of samples to be used in evidence;

Article 4, paragraph 2, point (b)

Number

Submitter

Recommendation

Vote Outcome

Text

Original

Commission

N/A

b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence;

82

Mayer

-

+

b) total or partial closure, on a permanent or temporary basis, of the establishment used primarily to commit the offence;

Article 4, paragraph 2, after point (f)

Number

Submitter

Recommendation

Vote Outcome

Text

ITRE 16

ITRE

-

+ (15-13)

(fa) an order requiring the infringer to pay the costs of keeping seized goods.

ITRE16 provides a disincentive for the speedy destruction of the goods.

After Article 4

Number

Submitter

Recommendation

Vote Outcome

Text

83

Manders

---

-

2a. Member States shall take the necessary measures to ensure that any purchase of goods infringing an intellectual property right is considered as fencing.

Justification

Direct criminalisation of consumers. Acts that are no infringement become a crime. According to Manders also meant to make downloading a crime (while making a copy for private use is normally not an infringement). Major change in substantive law in a directive only meant to address enforcement of existing substantial law.

Infringes the fundamental non-analogy principle of criminal law. "goods infringing an interoperability right" are not necessarily result of criminal offences. The wording of Art 3 and the amendments to it reflect that "infringements" are not the same as "crimes".

Article 5

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

N/A

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
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:
(a) to a maximum of at least EUR 100 000 for cases other than the most serious cases;
(b) to a maximum of at least EUR 300 000 for cases referred to in paragraph 1.

84

Roithová

++

-

(deleted)

85

Lichtenberger

86

Guidoni, Holm

87

Fontaine

--

-

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
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:
(a) to a maximum of at least EUR 300 000 for cases other than the most serious cases, and up to five times the amount of profit made by the counterfeiter;
(b) to a maximum of at least EUR 600 000 for cases referred to in paragraph 1, and up to ten times the amount of profit made by the counterfeiter;

Article 5, paragraph 1

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

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.

6

Zingaretti

Withdrawn

N/A

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 they are of a serious nature or when they 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.

88

Zingaretti

--

+

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 they are serious crimes within the meaning of Article 3(5) of Directive 2005/60/EC of the European Parliament and of the Council, of 26 October 2005, on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing [GU C 309 del 25.11.2005, pag. 15.] or 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.

89

Manders

--

cad

1. Each Member State shall take the necessary measures to ensure that, when committed by natural persons or criminal organisations, or where they carry a health or safety risk, the offences referred to in Article 3 are punishable by a maximum sentence of at least four years’ imprisonment. Moreover, Member States shall ensure that the punishment imposed is proportionate to the offence committed.

90

Mayer

NV

N/A

(German language version correction)

Article 5, paragraph 2

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

N/A

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:
(a) to a maximum of at least EUR 100 000 for cases other than the most serious cases;
(b) to a maximum of at least EUR 300 000 for cases referred to in paragraph 1.

91

Mayer

--

-

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/or non criminal fines:
(a) to a maximum of at least EUR 100 000 for cases other than the most serious cases;
(b) to a maximum of at least EUR 300 000 for cases referred to in paragraph 1.

Article 5, paragraph 2, point (a)

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

N/A

(a) to a maximum of at least EUR 100 000 for cases other than the most serious cases;

7

Zingaretti

0

+

(a) to a maximum of at least EUR 100 000 for cases other than those referred to in paragraph 1;

92

McCarthy

--

cad

(a) to a maximum of at least EUR 300 000 for cases other than the most serious cases;

Article 5, paragraph 2, point (b)

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

N/A

(b) to a maximum of at least EUR 300 000 for cases referred to in paragraph 1.

93

McCarthy

--

-

(b) to a maximum of at least EUR 500 000 for cases referred to in paragraph 1.


Article 5, paragraph 2, points (a) and (b)

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

N/A

(a) to a maximum of at least EUR 100 000 for cases other than the most serious cases;
(b) to a maximum of at least EUR 300 000 for cases referred to in paragraph 1.

ITRE 17

ITRE

+

--

In the case of financial penalties, the courts in each Member State shall determine the amount of the fine imposed, taking into account the damage caused and the value of the infringing goods or the profit derived therefrom and, as the main consideration in all cases, the economic situation of the infringer, as shown by his assets, income, family obligations, dependents and other personal circumstances.

After Article 5

Number

Submitter

Recommendation

Vote outcome

Text

94

Mayer

0

+

Member States shall take the necessary measures to ensure that repeated offences committed within the meaning of Article 3 by natural and legal persons in a Member State other than their country of origin or domicile are taken into account when determining the level of the penalties in accordance with paragraphs 1 and 2 of this article.

95

Manders

--

cad

Member States shall take the necessary measures to ensure, when determining the level of the penalties to be imposed on natural persons or legal entities for offences referred to in Article 3, that previous offences committed in another Member State by the persons or entities concerned are taken into account.

Note

Article 3(5) of Directive 2005/60/EC specifies that:

"serious crimes" means, at least
(a) acts as defined in Articles 1 to 4 of Framework Decision 2002/475/JHA;
(b) any of the offences defined in Article 3(1)(a) of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances;
(c) the activities of criminal organisations as defined in Article 1 of Council Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union;
(d) fraud, at least serious, as defined in Article 1(1) and Article 2 of the Convention on the Protection of the European Communities' Financial Interests;
(e) corruption;
(f) all offences which are punishable by deprivation of liberty or a detention order for a maximum of more than one year or, as regards those States which have a minimum threshold for offences in their legal system, all offences punishable by deprivation of liberty or a detention order for a minimum of more than six months.

Article 6

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

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.

96

Roithová

++

-

(deleted)

8

Zingaretti

Withdrawn

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 of a serious nature or where they 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.

97

Zingaretti

0

+

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 serious crimies within the meaning of Article 3(5) of Directive 2005/60/EC of the European Parliament and of the Council, of 26 October 2005, on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing [GU C 309 del 25.11.2005, pag. 15.] or 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.

98

Manders

--

cad

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 the Framework Decision 2005/212/JHA of 24 of February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, at least where the offences constitute a serious crime, or where they carry a health or safety risk.

99

Mayer

--

cad

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 of a serious nature or where they 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.

100

Guidoni, Holm

+

cad

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.

101

Mastenbroek

102

Fontaine

0

NV

(French language version correction)

LIBE 9

LIBE

+

cad

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.

ITRE 18

ITRE

-

cad

The Member States shall, without infringing fundamental rights, 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 the Framework Decision 2005/212/JHA of 24 of February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, at least where the offences are a serious crime, or where they carry a health or safety risk.


Justification

Am 6: not conform ECJ C-176/03. Furthermore the amendment uses the term "serious crime" which is not defined and therefore confusing. "Health or safety risk": any product, whether genuine or pirated, must not endager health; this is an orthogonal issue and outside the scope of this directive.

Am 8: uses the term "serious crime" which is not defined and therefore confusing, see Am 6.

After Article 6

Number

Submitter

Recommendation

Vote outcome

Text

LIBE 10

LIBE

++

+

Member States shall ensure that, through criminal, civil and procedural measures, the misuse of threats of criminal sanctions is prohibited and made subject to penalties.
Member States shall prohibit procedural misuse, especially where criminal measures are employed for the enforcement of the requirements of civil law.

103

Roithová

104

Lichtenberger

105

Guidoni, Holm

106

Mastenbroek

++

cad

Member States shall ensure that, through criminal, civil and procedural measures, the misuse of threats of criminal sanctions is prohibited and made subject to penalties. Member States shall also prohibit procedural misuse.

LIBE 11

LIBE

+

+

Member States shall ensure that the rights of defendants shall be duly protected and guaranteed.

107

Mastenbroek

Article 7

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

-

N/A

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.

LIBE 12

LIBE

++

-

(deleted)

108

Lichtenberger

109

Guidoni, Holm

110

Roithová

111

Mastenbroek

9

Zingaretti

Withdrawn

N/A

The Member States must ensure that the holders of intellectual property rights concerned, or their representatives and advisers, are allowed to assist the investigations carried out by joint investigation teams into the offences referred to in Article 3.

Or

Zingaretti

-

+

The Member States must ensure the cooperation of the holders of intellectual property rights with the joint investigation teams in accordance with the arrangements for which provision is made in Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams.

112

Fontaine

--

-

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.
With this in view, holders of intellectual property rights shall be provided with information in particular on:
- details of the circumstances and place of the seizure,
- the number of persons apprehended,
- the quantity of products or goods concerned.

113

Wallis, Bowles

+

+

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.

The Member States shall put in place safeguards that are sufficient to ensure that such assistance does not compromise the rights of the accused person, such as by affecting the accuracy, integrity or impartiality of evidence.

114

Zingaretti

Withdrawn

N/A

The Member States must ensure that the holders of intellectual property rights concerned, or their representatives and advisers, are allowed to assist the investigations carried out by joint investigation teams into the offences referred to in Article 3 in accordance with the arrangements for which provision is made in Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams [OJ L 162 of 20.6.2002, p. 1]
-- ((Or:it FFII translation))

115

Mastenbroek

+

cad

The holders of intellectual property rights concerned, or their representatives, and experts, shall be allowed to provide information to the investigation teams investigating the offences referred to in Article 3.

ITRE 19

ITRE

+

cad

The Member States must ensure that the holders of the intellectual property rights concerned, or their duly mandated representatives and experts, shall provide information to the joint investigation teams investigating the offences referred to in Article 3.


Justification

or How must the Member States ensure right holders will cooperate? Will it become a crime if a rights holder does not want to enforce his rights?

Am 9: "advisors" is less neutral than "experts" and the comma before it was removed, so "their" also applies to the advisors. The neutrality of police investigation is even more jeopardized than with the Commission proposal, 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."

After Article 7

Number

Submitter

Recommendation

Vote outcome

<:99%> Text

116

Fourtou

--

-

For this purpose, the holders of intellectual property rights shall receive information in particular on:
- details of the circumstances and place of the seizure,
- the number of persons apprehended,
- the quantity of products or goods concerned.

ITRE 20

ITRE

+

+

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 data [OJ L 281, 23.11.1995, p. 31.] shall be fully respected in the course of investigations and judicial proceedings.

117

Mastenbroek

+

cad

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 data [OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation (EC) No 1883/2003 (OJ L 284, 31.10.2003, p. 1.)] shall be fully respected in the course of investigations and judicial proceedings.

118

McCarthy

-

+

Member States shall provide that, where law enforcement authorities seize infringing items or obtain other evidence of infringement, the authorities make such evidence available for use in pending or contemplated civil proceedings against the alleged infringer brought by the rightholder in a jurisdiction within the European Union, and, where practicable, that those authorities inform the relevant rightholder or his representative of such seizure or evidence. Member States may require that any such provision of evidence to the rightholder be made subject to reasonable access, security or other requirements to ensure the integrity of the evidence and to avoid prejudice to any criminal proceedings that may ensue.

Article 8

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

N/A

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.

119

Roithová

++

-

(deleted)

120

Guidoni, Holm

121

Mastenbroek

122

Karas

+

-

Where a Member State makes prosecution of offences covered by Article 3 dependent on an a report or application made by the right-holder, it shall take the steps required to ensure that at least those authorities and agencies competent for the purposes of criminal investigations:
(a) where goods are suspected to infringe an intellectual property right, notify the right holder of the suspected infringement of his rights and,
(b) where the suspicion is sufficiently well founded, are in a position to confiscate the goods for three working days following receipt of the notification by the right holder, so as to enable the right holder to make a report or apply for prosecution.

123

Fontaine

-

-

Member States shall ensure that the possibility of initiating investigations into, or prosecution of, offences covered by Article 3 is available even in the absence of 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.

ITRE 21

ITRE

-

-

Member States shall ensure that the possibility of initiating investigations into, or prosecution of, offences covered by Article 3 may be initiated even without 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.

After article 8

Number

Submitter

Recommendation

Vote outcome

Text

LIBE 13

LIBE

+

cad

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 data [OJ L 281, 23.11.1995, p. 31.] shall be fully respected in the course of investigations and judicial proceedings.

Article 9, paragraph 1

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

N/A

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.

124

Mastenbroek

+

-

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/EC 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.

am 124ensures that the new criminal measures will work hand in hand with the former IPR Enforcement Directive.

Recital 5

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

-

N/A

(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.

1

Zingaretti

-

+

(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, as defined by this directive, other than patents.

13

Mastenbroek

++

cad

(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. Full implementation of those measures and remedies is a prerequisite for developing any further measures and remedies.

14

Mastenbroek

++

cad

(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 that Directive is a prerequisite for developing any further measures and remedies.

Justification

am 13/14 reflects the fact that the directive starts the third step of criminal law harmonisation before the first and second.

After Recital 6

Number

Submitter

Recommendation

Vote outcome

Text

15

Fontaine

0

+

(6 a) In its resolution of 7 September 2006 on counterfeiting of medicinal products, the European Parliament took the view that the European Union should equip itself as a matter of urgency with the means to combat effectively illicit practices in the area of piracy and the counterfeiting of medicines..

Justification

am 15 is just another reference to an external document. However the content of the directive needs to reflect the focus on counterfeit and piracy as claimed. Other amendments of the same MEP show that she intends to go beyond that scope. It is rather inappropriate to use these references in a dishonest manner.

Recital 7

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

(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.

16

Mastenbroek

+++

-

(deleted)

Justification

Am 16 ensures ECJ 176/03 compliance. The directive proposal does not harmonise penalties.

Recital 8

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

(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.

LIBE 1

LIBE

+

-

(deleted)

17

Mastenbroek

18

Guidoni, Holm

19

Mayer

+

+

(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. The co-operation of the intellectual property rightsholders concerned should constitute a supporting role that will not interfere with the neutrality of the state investigations.

20

Fontaine

-

cad

(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.

Recital 9

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

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.

ITRE 1

ITRE

+

-

(deleted)

22

Guidoni, Holm

21

Mastenbroek

+

-

(9) In order to promote mutual trust between Member States, uniform EU safeguards should be put in place to protect the fundamental rights of suspects and defendants in criminal proceedings. Common EU standards should be applied in the first instance, including: access to legal representation, access to interpretation and translation, ensuring that persons in need of specific attention because they are unable to follow the proceedings receive it, consular assistance to foreign detainees and notifying suspects and defendants of their rights in writing. These safeguards should reflect the traditions of the Member States in following the provisions of the European Convention on Human Rights (ECHR) and of the Charter of Fundamental Rights of the European Union. In any case, the rights laid down in the ECHR should be regarded as minimum standards with which Member States should in any event comply, just as they should comply with the case-law of the European Court of Human Rights.

23

Karas

-

-

(9) Member States should be allowed to provide for or retain either a system requiring proceedings to be initiated ex officio or a private prosecution system. Where a private prosecution system exists, the authorities should, however, inform right holders of suspected infringements of their rights, and it should be permissible, where a suspicion is sufficiently well founded, to temporarily confiscate goods constituting an infringement of rights.

24

Fontaine

-

-

(9) To facilitate investigations or criminal proceedings concerning intellectual property offences, these may be initiated even in the absence of a report or accusation made by a person subjected to the offence.

am 21 off-topic, but an important addition.

am 23 reflects the concern that the directive as proposed by the Commission forces the member states to change the current rules of IP enforcement of the market. That should rather be avoided at the appropriate place.

am 24: IP rights are private rights and have to be freely exercised by the rightsholder.

After Recital 9

Number

Submitter

Recommendation

Vote outcome

Text

ITRE 2

ITRE

++

+

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.

LIBE 2

LIBE

Justification

ITRE/LIBE 2: Self-explanatory, difficult to argue against.

Recital 10

Number

Submitter

Recommendation

Vote outcome

Text

Original

Commission

--

N/A

(10) This Directive does not affect specific liability systems such as that laid down for Internet service providers in Articles 12 to 15 of Directive 2000/31/EC on electronic commerce[13].

Or

Zingaretti

+

+

This Directive does not affect specific liability systems such as that laid down for Internet service providers in Articles 12 to 15 of by Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.

Recital 10 a (new)

Number

Submitter

Recommendation

Vote outcome

Text

Or

Zingaretti

+

+

This Directive does not affect specific liability systems such as that laid down by Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

25

Mastenbroek

+

-

(10a) It is understood that the non-commercial sharing of files between individuals is excluded from the scope of this Directive.


Justification

Am 25 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.

Recital 12 a (new)

Number

Submitter

Recommendation

Vote outcome

Text

2

Zingaretti

--

+

(12a) It is necessary to ensure adequate protection of intellectual property rights in the audiovisual sector, as indicated by Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access [1]. [1] OJ L 320 of 28.11.1998, p. 54.


Justification

Am 2 Open-ended intellectual property concepts should not mixed with criminal sanctions at all.

ipred2/JURI Tabled Amendments (last edited 2009-08-15 22:27:12 by localhost)

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