IP ENFORCEMENT NEARS EC VOTE WITH COMMON GROUND AS GOAL
Under pressure from the Irish Presidency, the European Parliament (EP) and Council are scurrying to find common ground internally and with each other on a controversial European Commission (EC) directive aimed at beefing up enforcement of intellectual property (IP) rights. With a vote scheduled for the Feb. 10 EP plenary session -- but likely to be pushed back until later that month or March, we're told -- the Presidency is negotiating with both the rapporteur of the EP Legal Affairs (JURI) Committee and shadow rapporteurs from other political groups to find a way to reconcile opposing Council and EP views, a European Union (EU) diplomat said. The directive continues to be controversial, with telcos and ISPs contending it could subject them to massive liability and the consumer electronics industry saying its sanctions weren’t clear enough.
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In Dec. the Presidency unveiled a draft common position that one European civil liberties group said combined many of the “worst proposals” in the Commission’s and EP’s versions while sidestepping most of the good ideas. At the time, both the Council IP Working Group and EP said they had a lot more talking to do to reach compromise.
The Irish Presidency, which took office Jan. 1, wants the directive on a fast track, the EU diplomat told us. But the Council has yet to reach consensus on the text, she said.: “Quite a lot of questions are still open.” Among them are the 3 stickiest issues: (1) What the scope of the directive should be. The Presidency’s draft would cover patents, a provision that JURI members had deleted. The Council may favor having the directive cover only IP rights already regulated under community law, the EU diplomat said. (2) Whether IP infringements should be treated as crimes. The Presidency’s draft would penalize a wide range of infringements rather than adopting the “appropriate sanctions” text agreed to by JURI members, and would require judges in assessing penalties to take into consideration the circumstances of each case, including whether an infringement was intentional or inadvertent, European Digital Rights (EDRI) reported last month. (3) Whether the directive should cover only infringements committed for commercial purposes or all infringements.
Telcos and ISPs are particularly worried about several provisions, said a spokesman for the European Telecom Network Operators’ Assn. (ETNO). Among other things, they want the directive to apply only to the serious infringements posited in the original EC draft -- that is, those done for commercial gain and those causing “significant harm” to rightsholders. They don’t want the directive broadened to include patents and other IP rights not listed originally, the spokesman said. Telcos are dead set against piracy, he said, but they don’t want to be held extensively liable for being mere conduits of infringing materials. ETNO is part of the European NetAlliance, whose members also include BT Cable & Wireless, Deutsche Telekom, the European Cable Communication Assn., the Finnish Federation for Communications & Teleinformatics, KPN, MCI, Telecom Italia, Telenor, TeliaSonera, Verizon, Vodafone and Yahoo.
The draft also has drawn fire from German Data Protection Comr. Peter Schaar, European Digital Rights (EDRI) EU Affairs Dir. Andreas Dietl said Thurs. In an interview with a German publication, Schaar said the directive risked cutting deeply into the confidentiality of communications and into citizens’ personal rights by giving IP owners too many rights of information, EDRI said. Schaar also criticized the potential expansion of the directive from commercial to all infringements, saying it wouldn’t be proportionate to make “everyone exchanging private copies” into an infringer.
The European Information, Communications & Consumer Electronics Technology Assn. (EICTA) welcomes changes made by JURI in its final (Dec.) report on the draft, EU Affairs Mgr. Saida El Ramly said. EICTA is readying a letter in which it will tell MEPs that: (1) It approves of the committee report’s making clear the directive doesn’t affect the e- commerce directive’s rules on ISP liability. (2) The report strengthens protections for authentication devices, an improvement important to EICTA members, which are hardware manufacturers. (3) Expansion of the scope of the directive to all infringements is proper. However, El Ramly said, the EICTA letter will “nit-pick” several of the articles, including one on criminal sanctions that she said the JURI report makes too vague to be implementable.
The directive is up for discussion Feb. 11 at a meeting of the Committee of Permanent Representatives, the EU diplomat said. Ambassadors from the member states will try to decide then whether they want to reach agreement with the EP so the directive can be approved on its first reading in the Parliament, she said. If they can’t agree, she said, then after the EP acts the document will go to the Council for its vote. But because the EP session ends in May and reopens later in the year with a new batch of MEPs, the diplomat said, the Presidency wants the directive adopted as soon as possible. That’s not as easy as it seems, she said, because the Presidency acts on behalf of all member states, and each of them must be satisfied with the form the directive takes.