In the words of one MEP speaking at a meeting in Strasbourg last week, "This is Europe, not London. This is how we do things here. You just have to trust us". [1]

FFII is very concerned that, without better defined safeguards, the Directive will lead to a far more agressive, lawyer-driven legal environment for creative businesses; and having seen how such legislation can be used in the United States, that it may provide the means for agressive litigators holding dubious intellectual property rights to "pull a SCO" and use the powers of the Directive to seriously harass and even inflict lasting damage on small innovative businesses.

WIDENED SCOPE

Originally intended as a measure to stamp down hard on organised criminal counterfeiting and piracy, the scope of the legislation has been widened to apply to all species of intellectual property cases -- including routine commercial disputes, and the American-style pursuit of individual teenage internet filesharers.

Legitimate companies of all sizes are concerned about the unpredictable effects of such an enormous increase in the availability of the so-called "nuclear weapons" of IP enforcement law, to civil legal disputes of all scales, and to states where they have been no part of the legal tradition.

These include measures such as Anton Piller orders (secret court authorisations of raids for evidence by the plaintiff's agents -- Article 8); Mareva injunctions (freezing of assets, even before a case has been discussed in Court -- Article 10.1); new powers to demand the disclosure of very extensive commercial and personal information (Article 9); and the admissibility of denounciations by anonymous witnesses as court evidence (Article 8.5).

In Europe these kinds of investigatory procedures are more usually associated with criminal proceedings with a much higher standard of proof, and are quite alien to the civil (non-criminal) justice systems of most of the member states.

HOUSE OF LORDS

In June an earlier draft of the Directive was examined by a House of Lords scrutiny committee, chaired by Lord Scott of Foscote, the Law Lord who wrote the 1996 "Supergun" Arms to Iraq report, and who was Head of Civil Justice in the UK from 1995 to 2000. The committee noted that "This is an ambitious proposal which may have far-reaching implications for the law of most Member States", and they expressed concern that:

* "We would welcome a detailed assessment on the compatibility of Articles 7-9 with domestic law and the challenges they may pose for human rights".
* "We would like to emphasise the need for the Government to conduct extensive consultations on this important proposal, in particular with the Patent Judges".
* "We request the Government to provide a Regulatory Impact Assessment specifically directed at the implications of the proposal for the UK".

No public assessment has yet been published on any of these points; and the House of Lords committee has so far still declined to clear the Directive.

FFII'S VIEW

FFII fully supports firm action to crack down on organised counterfeiting and piracy. But FFII believes that in its present form the Directive is seriously unbalanced, will encourage opportunistic legal threats, and will create a much more hostile legal environment for small creative businesses.

FFII believes that the best course would be for the directive to be limited to its original proposed scope, namely commercially organised recklessly intentional copyright and trademark infringement.

Above all, FFII would like to see:

1. Disputes about patents and trade secrets/confidential information taken out of the scope of the directive altogether. The draconian measures being discussed are completely inappropriate for such complex disputes.
2. The Directive should only apply where there is intent to infringe for commercial gain on a commercial scale. It should not apply unless there is good evidence of recklessness or a deliberate knowing intention to infringe.
3. Articles 7 to 10 should even then only apply in exceptional cases. It should be clearly stated in the Directive that they are not intended to become automatic standard procedure in all IP disputes.

FFII also believes that to allow proper public discussion and analysis in all the member states, the Parliament should allow at the very least a clear month from the publication of the Council draft text (17 Feb 2004) until the final closing date for amendments. This Directive is simply too important to get wrong.

FURTHER INFORMATION:

Membership of the House of Lords committee, with links to biogs:
 http://www.ffii.org.uk/ip_enforce/house_of_lords.html

Quotes about the dangers to legitimate businesses
 http://www.ffii.org.uk/ip_enforce/legitimate.html

Legislative timetable, and contact details for relevant UK MEPs
 http://www.ffii.org.uk/ip_enforce/timetable.html

Proposed safeguards, and why FFII believes they are inadequate
 http://www.ffii.org.uk/ip_enforce/safeguards.html



Official text of the directive:
 http://register.consilium.eu.int/pdf/en/04/st06/st06376.en04.pdf

Foundation for Information Policy Research pages on the Directive
 http://www.fipr.org/copyright/ipr-enforce-plenary.html
 http://www.fipr.org/copyright/draft-ipr-enforce.html


CONTACT:
For further information, please contact:

James Heald,
UK Co-ordinator, FFII
Chilworth Manor, Chilworth, Guildford GU4 8NL.

(01483) 575174 / 0778910 7539
 j.heald@ffii.org.uk

Permanent URL of this Press Release
 http://www.ffii.org.uk/releases/040219_trust.html

[1] Mercedes Echerer MEP, speaking 11.02.2004

FFII-UK ( http://www.ffii.org.uk/) is the UK volunteer group of the Foundation for a Free Information Infrastructure (FFII), a Europe-wide non-profit association registered in Munich.

FFII campaigns to promote competition and innovation in the field of software development. We seek a positive environment for the development of information goods, based on copyright, free competition, and open standards.

More than 700 companies and 50,000 registered supporters have entrusted the FFII to act as their public voice in the area of exclusion rights (intellectual property) in data processing; and the FFII/Eurolinux petition against software patents now has over 300,000 signatories.