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ProjectsEU DMCA++letter

EU IP Enforcement Directive Proposal COM (2003) 46(01)

The European Commission has proposed a directive which gives owners of copyrights, patents and all other kinds of exclusion rights greater powers to persecute infringers. The directive is championed in the European Parliament by MEP Janelly Fourtou (wife of Vivendi boss) and energetically supported by MEP Arlene McCarthy and others. Concerns have been raised by civil liberty groups that the proposal, by granting far-reaching powers to exclusion right titularies and neglecting civil rights and public concerns, may create various perverse effects.

->JURI: meeting documents 03-10-01
Further criminalisation of copying is still espoused by MEP Janelly Fourtout. Meanwhile MEP Arlene McCarthy is handling the project of a "European Network and Information Security Agency" with proposed amendments geared toward helping certain large companies strengthen their monopoly positions by establishing a "next generation secure computing base", known as NGSCB or TCPA.
->Fourtou (JURI) Report on EU IP Enforcement Directive
The rapporteur for JURI is Fourtou. CODE don't like her report, but one good thing in it is that she is proposing to exclude patents from the range of IP that the measures would apply to. She says she has been working closely with the interest groups and the Commission, because she hopes they will be able to adopt her report as law straight after the first reading, ie without any more alterations.
->Foutou's earlier interim report
It seems that some progress has been made since then.
->Luis Berenguer Fuster's draft opinion for ITRE
Berenguer Fuster's report doesn't explicitly propose to exclude patents, but proposes to limit the application of the provisions to "counterfeiting" only (Am.3 to Article 2 para 1), with a new amendment (Am. 4) to define counterfeiting: "For the purposes of this directive counterfeiting shall be deemed to exist when an intellectual property right is deliberately and fraudulently infringed".
->Amendments submitted by ITRE for EU IP Enforcement Directive
We couldn't find anything on the web to say which exactly which amendments made it into the final ITRE report and which didn't. Amendments submitted by Danielle Auroi add the words "In cases of deliberate counterfeiting or piracy" to the measures and procedures clauses. These are said to come from generica industry. They didn't make it into the final ITRE report. Possibly because the committee felt this limitation was already written in by the draftsman's amendments.
->CEC DGMarkt Intprop 2003: IP Enforcement Directive Proposal
The original text of the European Commission's proposal COM (2003) 46(01), i.e. "Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on measures and procedures to ensure the enforcement of intellectual property rights"

The directive as proposed by Commission of European Comminities (CEC) criminalizes copyright, patent and trademark infrigement, including imprisonment (article 20), has harder protection of DRM than EUCD (article 21), disregard for privacy (article 9), end of financial confidentiality (article 7) and a lots of other interesting ideas...

Almost all the litigation costs of exclusion right owners are passed to the government (increasing the "value" of the "protection"). Very nice for patent owners and less nice for the victims of litigation.

In combination with the Fourtou/JURI version of the software patent directive, this means that publishing a program on the Internet becomes a very risky business indeed.

->EU IP Enforcement Directive List Info
Mailing List on the EU IP Enforcement Directive
->CEC DGMarkt Intprop Documents
Laws and Law Proposals of the Intellectual Property Unit in the European Commission's Directorate for the Internal Market
->Janelly Fourtou MEP and Software Patents
Janelly Fourtou, member of the European Parliament, French Conservative, has actively promoted software and business method patents in Europe, while pretending that she was "only restating the current law". Fourtou in particular used every opportunity to push for legalisation of program claims (e.g. "a program, characterised by that upon loading into memory some computing process is executed"), which the European Commission had suggested not to allow. Jean-René Fourtou, husband of Janelly, former top manager of Aventis (pharma), is currently the CEO of Vivendi Universal. Vivendi is involved in cooperation negotiations with Microsoft. In 2002/12 J-R became the head of the International Chamber of Commerce (ICC), an organisation with a very active patent arm (IP Commission) which is lobbying for expansion of the patent system worldwide. In 2003, Fourtou became the rapporteur of a new IP enforcement directive, which, if enacted according to Fourtou's proposal, may allow the Fourtou family to earn many thousands of EUR by suing people, either on the grounds of patents or copyright. This directive proposal is once again based on documents from BSA and once again claims to be "only harmonising the status quo". Fourtou finds the proposed measures still not draconian enough.
->IPJustice: IP Enforcement Whitepaper
An critical assessment of the proposed directive
->FIPR: The Draft IP Enforcement Directive
Ross Anderson from the Foundation for Information Policy Research analyses how the Draft IPR Directive endangers Competition and Civil Liberties
->Statement by EFFI to Finland's Ministry of Trade and Industry on the proposed IPR enforcement directive
Shows that the proposal is based on faulty reasoning from rent-seeking pressure groups and that it abuses the "harmonisation" pretext in order to create completely new rules. Among them are special rules for ensuring that patents can be used to prevent circumvention of anti-copying systems.
->FIPR: The Draft IP Enforcement Directive
Ross Anderson from the Foundation for Information Policy Research analyses how the Draft IPR Directive endangers Competition and Civil Liberties
->CODE 2003/08: Organizational Letter
Urging Rejection of EU IP Enforcement Directive
->AEL Wiki Webpage on IP Enforcement Directive
collection of ressources on Wiki page of Association Electronique Libre
->CEC & BSA 2002-02-20: proposal to make all useful ideas patentable
The European Commission (CEC) proposes to legalise the granting of patents on computer programs as such in Europe and ensure that there is no longer any legal foundation for refusing american-style software and business method patents in Europe. "But wait a minute, the CEC doesn't say that in its press release!" you may think. Quite right! To find out what they are really saying, you need to read the proposal itself. But be careful, it is written in an esoteric Newspeak from the European Patent Office (EPO), in which normal words often mean quite the opposite of what you would expect. Also you may get stuck in a long and confusing advocacy preface, which mixes EPO slang with belief statements about the importance of patents and proprietary software, implicitely suggesting some kind of connection between the two. This text disregards the opinions of virtually all respected software developpers and economists, citing as its only source of information about the software reality two unpublished studies from BSA & friends (alliance for copyright enforcement dominated by Microsoft and other large US companies) about the importance of proprietary software. These studies do not even deal with patents! The advocacy text and the proposal itself were apparently drafted on behalf of the CEC by an employee of BSA. Below we cite the complete proposal, adding proofs for BSA's role as well as an analysis of the content, based on a tabular comparison of the BSA and CEC versions with a debugged version based on the European Patent Convention (EPC) and related doctrines as found in the EPO examination guidelines of 1978 and the caselaw of the time. This EPC version help you to appreciate the clarity and wisdom of the patentability rules in the currently valid law, which the CEC's patent lawyer friends have worked hard to deform during the last few years.
->Das Digitale Dilemma, Digitale Rationierung (DRM) und die Umsetzung der EU-Kopierschutzrichtlinie
Durch die Digitalisierung ist die Kluft zwischen Druckerpresse und Leserschaft verschwunden. Jeder kann auf seinem Schreibtisch Informationen mühelos vervielfältigen und jeder Lesevorgang ist zugleich ein Kopiervorgang. Das bisherige Verwertungsmodell scheint an einem Scheideweg zu stehen. Bisherige Ausschlussrechte können entweder zunehmend undurchsetzbar werden oder mit zunehmend unakzeptabler Härte durchgesetzt werden. Einerseits ist zu befürchten, dass geistiges Schaffen noch brotloser wird als bisher. Andererseits führt der Ausbau von Vorrechten schnell in einen Konflikt mit grundlegenden Freiheitsrechten, von denen nicht zuletzt die Vitalität des Schaffens abhängt. Unter dem Druck interessierter Kreise haben sich die USA und die EU voreilig für letzteren Weg entschieden. Derzeit wird eine europäische Richtlinie umgesetzt, und die Bundesregierung scheint ähnlich wie die britische Regierung entschlossen, eine noch härtere Gangart einzulegen, als von der EU vorgegeben wurde. Wir versuchen hier, die Entwicklung zu dokumentieren und entscheidende Fragen und Forderungen herauszuarbeiten.
->European Network and Information Security Agency
In March 2003 MEP Arlene McCarthy was appointed rapporteur for the Proposed European Parliament and Council regulation on Establishing the European Network and Information Security Agency (COM(2003) 63 -- C5-0058/2003 -- 2003/0032(COD)). A draft report by McCarthy of August 20 proposed that, as part of building this agency, Europe should build a "Trusted Computing" platform, reminiscent of the TCPA initiative. Concerns have been raised that an EU institution in this area could promote security by obscurity to the advantage of a few players.

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© 2003/10/06 FFII