IP Directive to harmonise criminal law across Europe

A European Parliament committee has voted in favour of an EU-wide law which would criminalise intentional infringements of an intellectual property right on a commercial scale.

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.