A RESPONSE TO RICHARD BUDWORTH

The IPKat has received the following dispatch in response to Richard Budworth’s guest blog from James Heald, the UK co-ordinator of FFII:

Richard Budworth, in his "guest blog" on IPKat last Friday, is unfortunately not working with the current text of the IP Enforcement Directive.

The text which will be actually be put to the vote (now on Wednesday, not Tuesday) was released only on February 17th, and can be found here or in HTML here with a contents page here

This revised text does fix a number of problems with the original draft; but on the other hand it considerably widens it.

Most importantly, the revised Article 2.1 is now not limited to "commercial purposes or significant harm to the rightsholder". Instead the Directive shall apply to "any infringement of intellectual property rights as provided for by
Community law and/or by the national law of the Member State concerned". [And note also that no definition is proposed as to what shall, and what shall not, constitute an "intellectual property" right].

Article 8 (Anton Piller orders) is no longer limited to "where there is a demonstrable risk that evidence may be destroyed even before the commencement of proceedings on the merits of the case". It now states that such orders may be ordered
"on application by a party who has presented reasonably available evidence to support his claims that his intellectual property has been infringed or is likely to be infringed".

Article 3 now requires measures, procedures and remedies to be "effective, proportionate and dissuasive" in addition to being "fair and equitable, ... not unnecessarily complicated or costly, nor [to] entail unreasonable time-limits or unwarranted delays". But these very general precepts must be set against the specific test of Article 8.

Article 4 has been deleted.

Member States are already bound to enforce intellectual property rights by the detailed provisions of the TRIPS agreement. The powerful "TRIPS-plus" measures proposed are neither needed nor appropriate to the swapping of Britney ringtones.

This is why MEPs should support the cross-party amendment proposed by the Italian MEP Marco Cappato, to correct the scope of the directive, as defined in Article 2:

"1. Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as those means may be more favourable for right holders, and in accordance with Article 3, the measures and procedures provided for by this Directive shall apply:

a) to intentional infringements of copyright and related rights, of sui generis rights of a database manufacturer and of the creator of the topographies of a semiconductor product, undertaken in the course of a business or causing significant harm

b) to the commercial counterfeiting of trademark goods and of geographical indications, indications of origin, undertaken with the intent to deceive or mislead consumers".