Protect intellectual property rights by all means necessary?

Maybe i have been a bit premature in my condemnation of the French and Dutch no votes on the European constitution back in June. The charter of fundamental rights that is part of the proposed constitution contains an article relating to intellectual property rights. In all its simplistic beauty article 17(2) reads like this:

Intellectual property shall be protected

Yes this is it. No qualifications whatsoever, No purpose (‘for the progress of science and the useful arts’) like in the US constitution. If this constitution gets enacted in Europe intellectual property rights will be ‘fundamental rights’ and have to be protected by all means necessary.

Now i had come across this clause earlier, but for some reason it had been amused by what i then perceived as it’s nativity. Not so anymore:

On the 12th of july the Commission of the European Union launched a new proposal for a directive and framework decision on the penal enforcement of intellectual property rights. This directive seeks to harmonize legislation in the member-states regarding IPR infringements. It calls for substantial criminal penalties for intentional infringements of intellectual property rights on a ‘commercial scale’. Article 3 of the proposed Directive reads as follows:

“Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.”

The obvious problem with this article is that ‘attempting, aiding or abetting and inciting such infringements’ is an awfully vague definition of possible criminal behaviour. It does not take a lot of imagination to see the entertainment industry trying to force file sharing services out of business because of them providing aid to the intentional infringement of their users. This goes way further than the recent grokster ruling of the US supreme court which comes down to that a provider of a service that allows infringing uses can only held liable when this infringing use is part of his business model or endorsed by the provider. Under the proposed EU the motives of a service provider seem to be completely irrelevant. It is enough if the service is aiding intentional infringement that is taking place on a comercial scale. As comercial scale is not defined as something that is undertaken by comercial entities for profit it probably also encompasses large scale infringement that is taking place on all mayor file sharing services (also see the last EDRI-gram on this issue).

While this directive will not automatically become law in its’s present form (as Urs Glasser points out in his blog) it is interesting to see how the commission justifies coming up with this directive in the first place: Apart for pointing out that the divergent practices of the member states need to be harmonized (which is the raison d’être for most of the commissions legislative work) the commission refers back to Article 17(2) of the proposed charter of fundamental rights:

This Directive respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of the Charter. (point 5 from the introduction of the proposed directive

For the casual reader this gives quite and amount of legitimacy to the proposed directive. Suddenly there is a fundamental right that needs to be protected. How can anybody in her sane mind have any objections against respecting the fundamental rights of the EU? Of course protecting our fundamental rights requires swift and immediate action!

I guess that makes clear that we do not only have to fight against this particular directive, but that we also need to turn more attention to the EU constitution once it will be revived from the dead (which will happen sooner or later). In the meanwhile someone should point the Commission to the fact that the constitution has been voted down by two member states and that they should stop making references to non-existing and dubious fundamental rights.

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