Supporters of the Directive say it is aimed at organised crime, but opponents claim that it could criminalise legitimate activities. The proposed directive is also controversial because if passed it would become the first directive to impose criminal penalties across Europe.
The Second Intellectual Property Rights Directive (IPRED2) was passed by 374 votes to 278 yesterday after a reading at Monday's plenary session. It now passes to the Council of Ministers.
Backers of the proposal said that it was designed to apply only to commercial-scale IP infringers, and that it was focused on industrial IP infringement, not the acts of individuals.
Much of the opposition to the Directive centred on the fact that it would criminalise patent infringement, which would instantly make a large number of European businesses criminal organisations.
"Until now, large-scale copyright or trademark infringement has been a crime here, while patent infringement has been a matter for civil litigation," said Ross Anderson of the Foundation for Information Policy Research in its submission to the UK Government's consultation on the proposal. "The new proposal will force the UK to make patent infringement a crime, and to criminalise incitement to infringement. The criminalisation of patent infringement will damage competition, resulting in higher prices for consumers."
But the rapporteur in charge of the Directive, Italian MEP Nicola Zingaretti, said that patents were in fact excluded from the scope of the proposed directive. "According to the rapporteur "this directive is to fight organised crime"," said a European Parliament statement. "That is why patents and personal use are out of the scope. He stressed the risk linked to counterfeited medical products and the effects of piracy on EU economy."
"The report on criminal measures for enforcing intellectual property rights leaves too many questions and causes more problems than we started with," said UK Green MEP Jean Lambert. "Many of the areas to be covered by the Directive, such as copyright, are already dealt with effectively by national civil laws. There is simply no justification for introducing EU-wide criminal penalties for such minor infringements."
Lobby group the Foundation for a Free Information Infrastucture (FFII) said that one problem with the proposal is that it extends the criminalising of inciting someone to infringe copyright to countries where that is currently not a crime.
"Today, 'inciting' is only criminal in some member states, and in exceptional cases such as hate speech," said FFII analyst Jonas Maebe. "Elevating intellectual property rights to the same level is a scary development."
"On the positive side, it explicitly mentioned several statutory exceptions to IPRs, where criminal measures should not be applied," said Maebe.