Enforcement of intellectual property rights

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Proposal for a Directive on measures and procedures to ensure the enforcement of intellectual property rights (COM (2003) 46)
Janelly Fourtou's Draft Report on this Directive
199 Amendments to the Fourtou Report

Debate and Vote in EU Parliament Plenary, March 9, 2004

The European Council, which has to agree with the European Parliament on the finished text, has in its first Draft Common Position adopted the Parliament's proposals where they broaden the scope - namely the extension to infringements committed for private use and not causing any harm - and added some deteriorations of legal standards of its own. Both versions were, during the first two monts of the year 2004, reconciled in a series of 11 so-called informal trilogue meetings between the Parliament rapporteur and shadow rapporteurs and the Council. The outcome of these discussions was presented as a Council Common Position The most obviously problematic proposals are:

• The directive's scope is much too wide: it should be limited to inten­tional commercial infringements only. Certain types of intell­ectual property rights such as patents should be excluded in their entirety from the scope of the directive.
• The directive lacks balance and proportionality since average consumers face the same treatment as major commercial counter­feiters for minor infringements with no commercial impact.
• The proposal provides no definition for "intellectual property rights", although the directive applies to all types of intellectual property. Since EU Member States define "intellectual property rights" differently, it is unclear which rights actually apply. The EU itself does not define the term intellectual property properly either, but it considers a very wide range of provisions to be concerning intellectual property
• The directive permits Hollywood attorneys to hire private police forces to invade the homes of alleged infringers. Known as Anton Piller orders, these measures were previously only available in extremely rare cases in the UK against large commercial infrin­gers. But the directive permits rightsholders to carry out these private raids against citizens throughout the EU for minor infrin­ge­ments that involve no financial motivation or benefit at all.
• Mareva injunctions, which permit rightsholders to freeze the bank accounts and other assets of alleged infringersbefore a court hearing, become EU law under this proposal.
• The directive creates a new "Right of Information" that allows rightsholders to obtain personal information on users of Peer-2-Peer (P2P) file-sharing software. Similar broad subpoena powers created under the controversial US Digital Millennium Copyright Act have been abused by the recording industry to obtain perso­nal information on thousands of consumers in the US.
• An Internet Service Provider's (ISP's) servers and equipment can be seized and destroyed without any hearing for the allegedly infringing activity of their customers.
• Directives of this importance must undergo adequate debate and consideration by the entire EU and not be rushed through on a "First Reading." This proposal should properly be sent into a "Second Reading" where its controversial provisions can be publicly considered.
• Finally, the introduction of anonymous witnesses in IPR cases as suggested by the Rapporteur in her amendment introducing Article 3a would introduce an instrument that is legally so redoubtful that some member states have abstained from introducing it even in terrorism cases.

But unfortunately, the European Parliament adopted in its plenary session of March 9 in Strasbourg the Council Common Position without any amendment.

Dyrektywa 2004/48/WE Parlamentu Europejskiego i Rady z dnia 29 kwietnia 2004 r. w sprawie egzekwowania praw własności intelektualnej
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Dyrektywa 2004/48/WE Parlamentu Europejskiego i Rady z dnia 29 kwietnia 2004 r. w sprawie egzekwowania praw własności intelektualnej