Brussels, 18 December 2006 -- Dutch European Parliament Member Toine Manders has tabled an amendment "to ensure that any purchase of goods infringing an intellectual property right is considered as fencing" to the IPR Enforcement Directive in the Legal Affairs Committee (JURI). With cases like SanDisk's allegedly patent-infringing MP3 player, the perfume "La Valeur" infringing on "Trésor"-related trademarks, Denda's phone directory infringing on KPN's database rights, ... consumers are advised to ask for a "Get Out of Jail Free" card with their next purchase.

Manders justifies his amendment by saying that "If consumers buy goods of which they could know that it's a clear violation of IPR, it should be considered as fencing." It is however unclear how they are supposed to know this. Jonas Maebe, FFII Analyst, comments: "Unfortunately, with the European Commission and the JURI rapporteur pushing for putting CEOs in jail because their company infringed on a substantially unexamined design right, this amendment seems like a logical extension rather than the extremism it really is."

The original Commission proposal has been severely lambasted by IPR specialists. "We would question its wisdom and the extent to which it will work in practice," wrote the Law Society of England and Wales. The Chartered Institute of Patent Attorneys is very concerned that including design rights and other often-contested IPRs "would result in significant chilling of competition". The Max Planck Institute even noted that portions are "incompatible with the fundamental structure of a democratic society."

Maebe adds "It is a public secret that the main goal of this proposal is to extend the EU competence on criminal law making. We understand that for this reason many pro-EU MEPs are reluctant to reject this directive, even if they strongly object to the balderdash presented by the Commission. However, if the EU wants the competence to legislate criminal law, it has to demonstrate that it's not incompetent at doing so."

"The amateurish Commission proposal and amendments like the above cast serious doubts on this. And although the EP's Industry Committee has shown to a certain extent that it is technically possible for the European Parliament to mend the directive, saying 'No' to this criminal law pollution would be much more appropriate, like with the software patents directive. The Commission created a mess, but Parliament is not its maid", he concludes.

Background Information

• The JURI Committee will discuss the tabled amendments on 20 December 2006. Their vote is expected to be near the end of January 2007.

• Some other amendments which raise concerns for consumers are 64 (Lehne) and 65 (Fourtou) (ed: the original PR said that am 65 was tabled by Mrs Bowles instead of Mrs Fourtou. We apologise for this error.) These amendments propose to scrap "commercial scale" from the conditions required for an infringement to be treated as a criminal rather than a civil offence. In Belgium and a number of other member states this would for example mean that copying a song text in a letter to a friend would become a criminal offence.

• The full text of Manders' amendment:

  Amendment 83
  Article 4, paragraph 2a (new)
  

  2a. Member States shall take the necessary measures to ensure that any purchase of goods infringing an intellectual property right is considered as fencing.

  Justification: If consumers buy goods of which they could know that it’s a clear violation of IPR, it should be considered as fencing.

Links

• Amendments tabled in the JURI Committee (Manders' amendment is 83)

• SanDisk faces MP3 licence dispute

• L'Oreal S.A. et al v. Bellure NV et al (perfume trademarks)

• KPN v. Denda and others (phone directory database rights)

• Opinion of the Law Society of England and Wales

• Opinion of the Chartered Institute of Patent Attorneys

• Opinion Max Planck Institute for Intellectual Property, Competition and Tax Law

• FFII information and analysis page on the IPR Enforcement Directive

Contact information

Ante Wessels
FFII analyst
+31-6-100 99 063
ante at ffii.org
(Dutch/English)

Jonas Maebe
FFII analyst
jmaebe at ffii.org
(Dutch/English)

Benjamin Henrion
FFII Brussels
+32-2-414 84 03
bhenrion at ffii.org
(French/English)

About the FFII

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.