Teresa Hackett wrote to the FSFE-IE list:
the European Parliament will vote on 8.3.2004 on the enforcement
directive. The rapporteur, Mme Fourtou, has written to MEPs asking
them to support the Council position. Below is the extract which
deals with OSS and further below is the full text, fyi.
James Heald:
Well, it's nice to know Mme Fourtou was listening to at least
*some* of the talk I gave in Strasbourg :-) [ie the bit about OSS
licenses are based on IP rights too]
What I went on to say, of course, was that there is a very delicate
balance to be maintained between the needs of supposed
rightsholders (often very powerful), and the need to avoid undue
harassment of innocent deliberately-targeted innovative small
companies and software projects.
If Mme Fourtou wants to introduce the needs of OSS projects into
the debate, then bring it on. It opens a space the size of a barn
door between the goalposts for free-source organisations to
officially publicly respond to this letter.
Teresa:
I'd certainly like IFSO to respond to this. But I'm not an open
source/FS expert myself and I suspect that there won't be a queue of
people with the time/knowledge/interest to produce the right sort of
thing quickly. (BTW, we will discuss mechanisms for quick response
actions at the next IFSO meeting). Do you know of anyone at FSF
Europe who could help? Might also be more appropriate for a European
level organisation to get involved.
I think probably the more organisations that chip in responses, to the
more MEPs, the better.
Anyone from AFFS feel like stepping up to the plate ?
Cheers,
James.
--------
Extract
The Directive supports interoperability and open source software models.
The proposed Directive will not undermine the ongoing development of
open source software in the EU. First it does not affect the 1991
Software Directive. Thus the acts of reverse engineering to achieve
interoperability that have been permitted under the Software Directive
for over a decade will continue to be permitted. Indeed, any conduct
permitted by the Software Directive will still be permitted after the
adoption of the Enforcement Directive.
Moreover, enforcement of IPRs is good for OSS developers just as it is
for commercial software developers. Obligations regarding the use of
open source software are established in the respective OS licenses and
grounded upon IPRs . The ability to enforce these IPRs is a critical
element in maintaining the open source system. Failure to achieve a
minimal harmonisation of IPR enforcement rules in an enlarged EU will
expose software developers – both commercial and open source – to
situations in which they are unable to enforce their respective rights.
-------------
Full text:
EU Directive on measures and procedures to ensure the enforcement of
intellectual property rights
I ask you to support the Council Political Agreement and the reasons for
that are:
The Council Political Agreement should be adopted in first reading.
Intellectual property is the foundation of human creativity and
innovation. In Europe, over 5% of the GDP is generated through creative
works. Millions of citizens directly depend upon intellectual property
protection for their livelihood. Many more benefit from its
contributions. Yet widespread counterfeiting and piracy put European
consumers and creators at risk. These activities steal jobs and tax
revenues from economies. They hamper the growth of legitimate online
services and threaten the well-being of consumers.
The EU has been considering acting since 1998, when the Commission first
released its Green Paper on the problem of counterfeiting and piracy in
the EU. In 2000, the European Parliament agreed unanimously that strong
action was needed. The proposed Directive is an opportunity to give
meaning to this commitment and ensure that creativity is fostered
throughout the enlarged Community’s 25 Member States. Now is the time
for the European Parliament to act by adopting the Council Political
Agreement in first reading.
The Council Political Agreement should not be further weakened.
The Council Political Agreement is not as far-reaching as the Legal
Affairs Committee might have hoped. While it reflects some best
practices and remedies already existing remedies from the Member States,
the Agreement is less effective in some areas than existing rules in the
Member States. It creates a bare minimum in terms of meaningful
legislation that should not be further weakened.
It is, however, an important first step toward eliminating
counterfeiting and piracy in the EU. It brings the EU closer to
achieving the Lisbon goal of making Europe the world’s leading
knowledge-based economy. Ultimately, its adoption will send an important
signal to countries outside the EU about the EU’s commitment to
creativity and innovation.
No one will go to jail as a result of the proposed Directive.
The Political Agreement adopted by the Council does not establish
criminal penalties. It is a purely civil instrument. No one will be
going to jail on the basis of this text – despite what some have said.
The criminal penalties initially contemplated by both the Parliament and
the Commission have now been abandoned. As conceived by the Council, the
Directive will not impose harsh criminal sanctions on individuals. It
does not provide for any of the criminal remedies available under the US
Digital Millennium Copyright Act (DMCA).
The Directive’s measures do not apply without restriction.
Consistent with the Legal Affairs Committee’s Report and the TRIPs
Agreement, the Council proposal permits effective action against any
acts of infringement of IPRs.
This does not mean that the Directive’s measures now apply without
restriction, however. Instead, under the Council Agreement, certain
Articles of the Directive (Articles 7(2), 9 and 10(1)(a)) only apply
where the conduct involved is on a “commercial scale”. This approach
provides for the limits that some have demanded and excludes acts done
by end consumers acting in good faith.
The Directive provides a “right of information” that is balanced,
limited and that fully and appropriately respects individual privacy.
Some have suggested that the “right of information” (Article 9) could
lead to abuse and potentially intrude on individual privacy. This is not
true. Article 9 includes several safeguards against abuse. First, the
Council Agreement limits this right to conduct occurring on a
“commercial scale”. Second, requests for information must be “justified
and proportionate”. Most importantly, only a judicial authority can
order that information be provided. Finally, use of the measure must not
prejudice rules on confidential information, on treatment of personal
data, and on the right against self-incrimination. And as with all
measures in the Directive, the right of information is subject to the
general requirement in Article 3 that measures be fair and proportionate.
Given these many safeguards, ISPs can be assured that they will not be
flooded with numerous and potentially unfair requests for information.
And individuals can be confident their privacy will be respected.
Existing intellectual property rights and exceptions are unaffected by
the Directive.
The EU has a long-established and well-balanced framework of
intellectual property legislation which includes the 1991 Software
Directive and the 2001 Copyright Directive. The proposed Enforcement
Directive respects this framework, as it should. Article 2 of the
proposed Directive states unequivocally that the Directive does not
affect existing Community legislation on intellectual property,
including the Software and Copyright Directives.
Because the proposed Directive does not change the substantive IP rules,
conduct that did not infringe an intellectual property right before the
adoption of the proposed Directive will not infringe one after the
Directive’s adoption. The proposed Directive does not create new or
different rights, nor does it alter the exceptions to these rights.
Instead, the proposed Directive simply defines workable tools needed to
enforce existing rights, as the EU is required to do by the WTO TRIPs
Agreement.
The Directive does not require that Internet Service Providers ‘police’
their networks, nor does it subject ISPs to new or greater liability for
illegal activity occurring on their networks.
Some have suggested that the Directive will impose undue burdens on
Internet service providers (ISPs), to the detriment of the Information
Society. The rules relating to the liability of ISPs for illegal content
carried on their networks are established in Articles 12-15 of the 2000
“E-Commerce Directive”. These rules are fair and workable and reflect a
balance among many competing interests. They have worked well in
practice. The proposed Directive respects those rules – as it should.
Article 2(3)(a) of the proposed Directive expressly states that the
Directive shall not affect the E-Commerce Directive and, more
particularly, shall not affect Articles 12-15 of the E-Commerce
Directive. This means that the existing rules on ISP liability will not
change. And it means that ISPs will not be required to monitor or
“police” their networks.
There are many other safeguards for ISPs (and others) in the proposed
Directive. For example, with regard to the right of information,
requests for information must be justified and proportionate. Other
measures in the Directive are similarly limited. These limitations
ensure that ISPs will not be faced with limitless requests for
injunctions, demands for information or seizure of their equipment.
The Directive is good for consumers and respects their legitimate
expectations.
Some have suggested that this Directive is bad for consumers. First and
foremost, we must remember that it is counterfeiting and piracy that are
bad for consumers. It is consumers who are the real victims of
counterfeiters. They buy products that they believe to be genuine, only
to discover that they have been misled. In the most extreme instances,
consumers can be physically harmed by counterfeit products.
It is also important to note that the Directive itself includes
safeguards for consumers and preserves their legitimate expectations.
For example pursuant to Article 3, the application of the Directive’s
measures must be proportionate in all instances. Article 2 make clear
that the private copying exception as established in the EU Copyright
Directive remains unaffected.
The Directive fully respects EU data privacy laws.
The EU is committed to protecting individual privacy. The proposed
Directive respects this commitment. Over and again, its measures require
that privacy be fully respected. For example, any order made under
Article 9 (the right of information) must not prejudice provisions on
the treatment of personal data. A judicial authority must be involved,
further ensuring that privacy is respected. Other provisions are
similarly limited.
We must recall, however, that privacy should be a shield rather than a
sword. Those who are committing illegal acts must not be allowed to
cloak themselves behind spurious claims to privacy.
The Directive is good for SMEs and mindful of EU competition laws.
Some have suggested that this Directive will stifle competition in the
EU and/or make the EU an unattractive forum for SMEs. To the contrary,
strong rules on enforcement will enhance competition.
The Directive itself contains safeguards to ensure that SMEs are not
prejudiced by its application. As a general rule, Article 3 instructs
Member States to apply the Directive in a manner that avoids the
creation of barriers to legitimate trade. The measures themselves also
include safeguards against abuse. For example, the Directive’s rules on
civil ex parte (surprise) searches (Article 8) requires that judicial
authorities have the ability to obtain from right holders an adequate
security or equivalent assurance; this ensures that where a search is
wrongly conducted, the defendant can be compensated for any resulting
prejudice. Other Articles contain similar safeguards.
Finally, it is important to recall that this Directive is based on the
best practices in the Member States. We are unaware of any evidence that
suggests that these tools have been misused against SMEs or that they
have stifled competition in any way. Indeed, the evidence is to the
contrary: weak IP protection undermines competition.
The Directive supports interoperability and open source software models.
The proposed Directive will not undermine the ongoing development of
open source software in the EU. First it does not affect the 1991
Software Directive. Thus the acts of reverse engineering to achieve
interoperability that have been permitted under the Software Directive
for over a decade will continue to be permitted. Indeed, any conduct
permitted by the Software Directive will still be permitted after the
adoption of the Enforcement Directive.
Moreover, enforcement of IPRs is good for OSS developers just as it is
for commercial software developers. Obligations regarding the use of
open source software are established in the respective OS licenses and
grounded upon IPRs . The ability to enforce these IPRs is a critical
element in maintaining the open source system. Failure to achieve a
minimal harmonisation of IPR enforcement rules in an enlarged EU will
expose software developers – both commercial and open source – to
situations in which they are unable to enforce their respective rights.
There is no longer a concern that the Directive’s remedies will be
applied unjustly in patent disputes.
Despite initial opposition by the Legal Affairs Committee, who had
sought to exclude these from the scope of the Directive, the Council
text applies to patent infringements. The Legal Affairs Committee
properly believed that certain of the Directive’s measures (double
damages and strong criminal sanctions) should not apply to patent
infringements. This concern has been mitigated by the elimination of
double damages and criminal sanctions from the Directive.
Patent litigation is almost exclusively conducted between competing
commercial organisations involved in the same area of trade. Patent
litigation tends to focus on questions about the validity of the
relevant patent, and not necessarily on counterfeiting matters. In these
circumstances, strong criminal sanctions and double damage remedies are
less appropriate. Given that these remedies have been eliminated from
the Directive, however, there is no longer a concern that they will be
unjustly applied in patent disputes.