14 February 2004
Contact: Robin Gross, IP Justice Executive Director
European Union Poised to Attack P2P File-Sharers
IP Enforcement Directive Targets Non-Commercial Infringements
The final weeks of the European Union’s push to enact the Intellectual Property Rights Enforcement Directive are heating up with a battle brewing between consumers and the recording industry over the directive’s targeting of Peer-2-Peer (P2P) file-sharing software and other non-commercial infringements.
Article 2, which determines the directive’s scope, remains a crucial concern for consumers. Through “trialogue” meetings, the European Council, Parliament, and Commission are headed toward agreement to make the directive applicable to any intentional infringement of an intellectual property right. This would substantially widen the directive’s scope from its original mission of harmonizing Member States’ enforcement provisions against large-scale commercial infringers and counterfeiters.
“Unless the directive’s scope is properly tailored to apply only in cases involving infringements for commercial purposes, it will be used against millions of European consumers for minor non-commercial infringements,” said Robin Gross, Executive Director of IP Justice, an international civil liberties organization that promotes balanced intellectual property laws.
This directive creates the “nuclear weapons” of law enforcement that will be used by recording industry executives to combat infringement. It combines the most extreme enforcement provisions found throughout Europe and imposes them collectively onto all of Europe, for example England’s Anton Pillar orders that would permit recording industry executives to raid and ransack the homes of alleged users of file-sharing software or it’s Mareva injunctions that would freeze the bank accounts of alleged infringers without a hearing. These powerful provisions must be limited to appropriate circumstances, such as cases committed for commercial purposes, or this powerful arsenal will be unleashed against average consumers who nominally infringe with no commercial purpose or gain.
The hurry to pass the directive on its initial reading is a direct response to the EU’s pending enlargement of Eastern Europe, states that would object to many of the directive’s extreme provisions. If this directive had to go through the process of a second reading, as most EU directives must, it would face substantial changes since many of the new EU states have more pressing concerns than creating powerful new enforcement tools for foreign corporations to use against their citizens for minor infringements. Only the directives that are un-controversial or to which there is near unanimous agreement are supposed to be enacted under a single reading procedure. This directive is particularly inappropriate to pass on a first reading because of the enormous disagreements over its main provisions and the possibility of last-minute amendments that substantially change its entire meaning.
If the EU wishes to apply these new powers against users of P2P file-sharing software, it should permit the public an opportunity to participate in the debate by permitting a full hearing with a second reading to adequately address the controversial issue.
Growing public concern over the directive resulted in much recent progress. According to reports of EU negotiations, the directive will no longer attempt to exceed its jurisdiction by creating criminal law sanctions (Article 20) and the right of information (Article 9) will be limited to “appropriate court cases” to ensure that a case has been filed before personal information is forcibly disclosed. Together with an exclusion of (Article 21’s) ban on technical devices, these changes would mark an improvement in the directive’s overall handling of consumer rights.
While some progress has been made in recent weeks to reign in a few of the directive’s provisions, its dangerously bloated scope remains a major concern for consumers. P2P file-sharers and non-commercial infringers have unwittingly become the intended target of this directive and ordinary consumers are caught in the crossfire. In order to maintain a balance between consumer rights and the legitimate enforcement of intellectual property rights, the directive must be narrowed to cases involving commercial infringement or counterfeiting only.
An open public debate on the directive between the Commission, Parliament, and the Council will likely be scheduled for February 23 or 24 in Brussels. Members of the public and press are encouraged to attend since it may be the last public meeting on the directive before it goes to a full debate in the EU Plenary on March 8-11, 2004 . (IP Justice will report details on this key meeting as soon as they become available.)
For More Information on IPR Enforcement Directive:
IP Justice 11 February Strasbourg Statement to MEPs:
“Protecting Civil Liberties, Competition and Innovation in the EU Intellectual Property Rights Enforcement Directive”