Consolidated text Criminal Measures IP directive manipulated

On 25 April 2007 the European Parliament rejected criminalisation of parallel importation when it voted on the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COD 2005/127).

In the consolidated text the amendment excluding parallel importation from criminalisation, is missing. As a result the consolidated text does criminalise parallel importation. The consolidated text is the opposite of the vote.

In Intellectual Property Watch Professor Annette Kur, Research Fellow at the Max Planck Institute for Intellectual Property, Competition and Tax Law called the change "a turnaround". She added: "People who engage in parallel imports are not criminals".

Our analysis shows the consolidated text violates the European Parliament Rules of Procedure. Adopted amendments have to show up in the consolidated text. Democracy is violated.

The consolidated text has to be corrected as soon as possible. Innocent people are criminalised.

Update: MEP Eva Lichtenberger wrote the President of the European Parliament a letter. Heise has the story.

Update: despite on going discussion the Official Journal of the European Union published the corrupted text. See second part of this PR and Heise II

Update: Eva Lichtenberger received a letter by Pöttering, he says it was indeed wrong to remove adopted amendment 15. A new consolidated text will be published. See also IP Watch

Examples

These activities are criminalised because amendment 15 is missing:

European Court of Justice example:

"[T]he European Court permitted an Austrian Company, Silhouette, to apply its trademark rights in the name 'Silhouette' in order to prevent the re-importation into Austria from Bulgaria of its no-longer-fashionable spectacle frames, where it hoped to have the frames remaindered in obscurity."

Here someone imported genuine but no-longer-fashionable spectacle frames. It is one thing this is an infringement, it is not criminal behaviour.

Missing amendment

The provisional version of the directive adopted by the European Parliament on 25 April 2007, replaces text of amendment 15 with the text of amendment 38. This appears to have been done because of a perception that there was a conflict between the two amendments. However, on close examination, it is clear that there is no such conflict and that there was therefore no reason to omit amendment 15, an amendment which had been adopted by Parliament in the plenary vote and by all relevant Committees before then. In addition, it is clear that replacing amendment 15 with amendment 38 is a violation of the European Parliament's Rules of Procedure. The only appropriate solution is to incorporate both amendments in the consolidated text of the directive: Amendment 38 should be incorporated in article 1 (or 2) and amendment 15 should be incorporated into article 3.

No conflict

With some exceptions, Parliament voted to impose mandatory criminal sanctions for infringements of intellectual property rights, as defined in Member States' national law. Amendment 15 excludes parallel importation of genuine goods from outside the European Union from criminal sanctions under the directive. There are sound public policy reasons for not imposing mandatory criminal sanctions for importation of genuine goods where the usual risks to consumers from counterfeit goods are not in issue, and copyright owners have not suffered loss from an unauthorized reproduction. Amendment 15 was adopted by the Parliament in its plenary vote on April 25, 2007 and by all three committees before then.

Amendment 38 purports to exclude parallel importation of goods if the rights owner consents to such importation from the scope of the directive. Importation with rightsholder consent is not considered to be an infringement of an intellectual property right. Accordingly, although Amendment 38 appears to create an exclusion to the directive, it is an ineffective exclusion because it purports to exclude behaviour that would not be infringing, and hence would be outside of the scope of the directive in any event.

In the provisional consolidated text, the text of amendment 15 has been replaced by the text of the ineffective exclusion, amendment 38. As a result, parallel importation of genuine goods from outside of the EU is no longer excluded from criminalisation under the directive.

There is no ground for replacing amendment 15 with amendment 38 after the Parliament's plenary vote. The amendments are not in conflict and can perfectly go together since the exclusions are cumulative. Amendment 38's second part goes to the scope of the directive, whereas amendment 15 goes to the definition of the crime. Criminal legislation can have limitations in both.

Rules of Procedure

The European Parliament's Rules of Procedure require that adopted amendments be incorporated in to the consolidated text. Parliament adopted both amendments 15 and 38. For the reasons explained above, the amendments do not conflict, so there is no valid ground for replacing amendment 15 with amendment 38 after Parliament's plenary vote. In these circumstances, the replacement appears to violate the Rules of Procedure in the following respects:

The requirement for individuated amendments

RoP 151.1.c provides that amendments must be restricted to the individual article of the text to which they relate. Amendment 38 is directed at the text of Article 1 (or 2). Amendment 15 is directed at the text of Article 3. Amendment 38 cannot have an impact on Article 3, and therefore cannot take the place of Amendment 15. As the two amendments respectively amend different articles, both amendments need to be incorporated in the consolidated text.

For completeness, we note that RoP 151.1c permits amendments to make identical changes to a particular form of words throughout the text (RoP 151.1.c) but as this is not the case here, the rule does not apply.

No Lapse by a Compromise Amendment

For completeness, we also note that this is not a situation where a prior vote on a compromise amendment has caused the lapse of a subsequent amendment.

Amendment 38 was not a compromise amendment according to the Rules of Procedure:

No Lapse by a Previously Adopted Competing Amendment

Again, for completeness, we note that this is not a situation where a previously adopted amendment has made a competing amendment lapse under RoP art. 151.2, because amendments 15 and 38 do not conflict, for the reasons explained above.

Even if there had been a conflict between amendments 15 and 38, the adoption of amendment 15 would have made amendment 38 lapse (and not vice versa) since amendment 15 was voted first.

Under Rule of Procedure 155.5, amendments can not be voted on collectively if there are competing alternative amendments to the same text. Amendment 15 was not taken out of the block vote, a further indication if any were needed, that the two amendments were not seen as conflicting. To the contrary, amendments 15 and 38 are not alternatives, they are cumulative and were tabled for different articles. Thus RoP 155.5 was not violated. For precisely the same reasons, amendment 38 can not stand in stead of amendment 15, and once amendment 15 was adopted by the Committees and Parliament in its plenary vote, it was not appropriate to omit it and purport to replace it with amendment 38.

Solution

For the reasons outlined above, the appropriate solution is to incorporate both amendments in the consolidated text. Amendment 38 should be incorporated in Article 1 (or 2) and amendment 15 should be incorporated into Article 3.

You may like to take a look at our flyer.

In this document we pasted 4 amendments together.

Here we show the consolidated text, with the important parts highlighted. Here are the official texts at the EP server: amendments and consolidated text.

Note: The EP took the amendments down.

Parallel importers are not criminals

Goods are marketed in a region by the trade mark rights holder or with his consent. Someone buys these goods and sells them in an other region, this is called parallel importation. Basically this is trade. But if the goods are trade marked, it is an infringement of trade mark. The rights holder can sue the parallel importer. But should parallel importation be a crime too? No copying is involved, genuine goods are bought and sold, it is not piracy. The Max Planck Institute wrote about this: "16. Parallel importation of genuine goods which have been marketed with the consent of the rightsholder in a non-EU country and/or measures accessory to such imports cannot be considered as piracy or counterfeiting. In accordance with what was said above, harmonisation of IP penalties should not be contemplated for such cases."

Following the Max Planck position, amendment 15 excludes parallel importation from criminalisation. It was adopted by all Committees (ITRE, LIBE and JURI), and in Plenary.

In the IP-Watch article the Mr Mayer assistant confirmed "a huge difference". Professor Annette Kur, Research Fellow at the Max Planck Institute for Intellectual Property, Competition and Tax Law is quoted: ' "In my opinion this is a change of considerable weight," said Kur. Parallel imports of products marketed by EU companies outside the union for lower prices were a much seen phenomenon. While civil right sanctions are in place, criminal law sanctions would be wrong, according to Kur. ' She added: "People who engage in parallel imports are not criminals," There is even a long, ongoing debate about whether parallel importing was a violation of trademark law at all.

More

Our earlier analysis has some more detail, a reconstruction and the letter to the representatives of the Member States

ipred2/Mistake in EP provisional consolidated text Criminal Measures IP directive (last edited 2009-08-15 22:27:04 by localhost)

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