It hardly seems like a year since I launched this blog – but it is.
I haven’t always been able to update it as regularly as I should – but I have tried.
The incident that launched me into blogging was the Commission’s proposal of 12 July 2005 for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights and a framework decision to strengthen the criminal law framework to combat intellectual property offences. It just did not seem to me to be a good idea to bring the construction of claims, which is expensive and difficult enough even in the specialist tribunal within the purview of the average jury. And I was even more of that view after I undertook jury service at Bradford Crown Court a few weeks later.
Following the ECJ’s decision in C-176/03 Commission v Council on the powers under the EU treaties to require member states to impose criminal sanctions, the Commission considered the effect of that decision in a communication to the Council and European Parliament of 24 Nov 2005. It subsequently withdrew the framework decision but replaced it with an amended proposal for a directive on criminal measures aimed at ensuring the enforcement of intellectual property rights on 2 May 2006.
Art 3 of the amended proposal is still pretty wide:
“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.”
To my mind this proposal is still objectionable despite the requirements that the infringement be “intentional” and that it be on a commercial scale. The recitals refer to the need to contain counterfeiting and piracy which is all well and good and there is no reason to go beyond those infringements.
No justification for extension is set out in the explanatory notes on art 3. It refers to art 63 of TRIPs that provides that
“Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.”
The fact that the WTO permits states to make that legislation does not mean that they must – does it.