If
the proposed Directive on criminal measures aimed at ensuring
the enforcement of intellectual property rights becomes law,
attempting, aiding or abetting and inciting such infringements will
also be treated as criminal offences.
Under an accompanying Framework Decision,
those convicted will face penalties of up to €300,000 and four
years in jail.
On 20th March, the European Parliament's legal
affairs committee backed a plan proposed by Italian MEP Nicola
Zingaretti. The current version of the plan covers infringements of
copyright, database rights, trade marks, and design rights, but not
patents.
The proposal originated with the European
Commission in 2005 and is designed to combat what the Commission
sees as a growing problem of commercial-scale crime related to
intellectual property. The Directive will complement the existing
Intellectual Property Enforcement Directive, passed in 2004, which
focuses on civil penalties.
If
passed, the new Directive would be the first to harmonise criminal
law across Europe. The law would be added to the Enforcement
Directive and to the World Intellectual Property Organisation's
TRIPS Agreement on IP rights.
"A start was made on harmonisation with the
entry into force of the TRIPS agreement which lays down minimum
provisions on means of enforcing trade-related intellectual
property rights," said the document published in July 2005 by the
Commission. "These include the implementation of criminal
procedures and criminal penalties, but there are still major
disparities in the legal situation in the Community which do not
allow the holders of intellectual property rights to benefit from
an equivalent level of protection throughout the Community. As
regards criminal penalties, there are considerable differences,
particularly as regards the level of punishment laid down by
national legislation."
"Counterfeiting and piracy, and infringements
of intellectual property in general, are a constantly growing
phenomenon which nowadays have an international dimension, since
they are a serious threat to national economies and governments,"
it said. "The disparities between the national systems of
penalties, apart from hampering the proper functioning of the
internal market, make it difficult to combat counterfeiting and
piracy effectively."
Because the law would only apply to commercial
scale infringement, individuals engaged in music file-sharing or
other private infringements would not face criminal prosecution
under any laws passed under the Directive.
The EU does not have direct control over
criminal matters, but a 2005 ruling from the European Court of
Justice on environmental crimes forms the basis of the proposed
Directive. The Commission has reportedly interpreted that ruling as
meaning that though it cannot directly control criminal matters it
can order countries to create new criminal penalties in an area
over which it does have control.
A significant difference between the proposed
Directive and the Commission's original text is the new exclusion
of patents.
