Directive on the enforcement of intellectual property rights

The European Union directive on measures and procedures to ensure the enforcement of intellectual property rights was formally adopted on April 29, 2004 in the Agriculture and Fisheries Council, two days before the enlargement of the European Union to 25 member states. The 10 new member states had therefore no influence on the directive.

It enforces that member states have to introduce measures which are normally only applied for counterfeiting of physical goods to all kinds of Intellectual Property Rights possibly even including secret information. These measures include very detailed requirements for third parties to provide information on possible infringements, raids undertaken by private companies without warning and freezing of bank accounts without warning.

It followed a Green Paper with the title: Combating counterfeiting and piracy in the single market [1], which was spearheaded by Janelly Fourtou [2]. Fourtou was also the draftsperson of this directive and actively campaigned for it. In one of these campaigns, MEPs were asked to sign a resolution for this directive. The resolution was advertised in the Parliament by black T-shirts with the letters "Piracy is not a victimless crime", also MEP Arlene McCarthy was wearing one of them.

On March 11 2004, MEPs voted by 330–151 (with 39 abstentions) for this directive. Although this was only the first reading in the codecision procedure, the Parliament has reached an informal agreement with the Council of Ministers which ensured that the directive could be adopted before the new member states join the EU.

The package of amendments which has been adopted as one block was prepared by Fourtou in a series of trialogue meetings with Council and Commission representatives to secure an adoption in 1st reading before the enlargement.

The package contains amendments which say that individuals acting in good faith and not on a commercial scale would be excluded from the directive which should mean that e.g. for an occasional private download, the harsh measures of this directive do not necessarily have to apply.

The provision of the European Commission which would have enforced criminal sanctions for any infringements of the law has also been removed in this package.

Mrs. Fourtou MEP said after the vote: "Only a judge can ask for raids on homes or for bank accounts to be frozen and this would only be where the law has been broken for commercial reasons – in other words, when an action has been undertaken with a view to gaining commercial or financial advantage. This excludes, in principle, acts by the end consumer carried out in good faith".

Arlene McCarthy said in the debate preceding the vote: "The UK's Anti-Counterfeiting Group has estimated that as many as 4,000 people lose their jobs as a result of this trade and that the £1.75 billion lost in VAT alone could build four new hospitals a year In my own region, North West England, trading standards intellectual property groups' seizures of counterfeited pirate goods is on the increase. Here is one example: this is a Manchester United football shirt, coveted by many youngsters. It is a fake, but was sold to consumers on the high street at full price"

But the package also introduced patents into the text. Sir Neil MacCormick MEP (SNP, Scotland) said: "Howeverthe Generic Medicines Associationis very fearful that extension of this set of remedies to patent law will damage its interests and thus the interests of the health services of Europe and beyond. Patents must be excluded, and the point about the commercial scale must be extended to the whole of the directive, not just to some parts of it.

Malcolm Harbour MEP (Conservative, West Midlands) said in the debate: "We are in the real world now, and this is not some theoretical piece of legislation but something that will actually protect jobs in our constituencies. As we move towards a world in which more and more goods are coming into the European Union from countries, such as China, that are new members of the World Trade Organisation and where intellectual property enforcement is at best very weak, we have to be able to protect ourselves in a legitimate and balanced way.

That is what is at stake, and those of you who are contemplating amending this proposal with the result that it is not in place on May 1 will have to answer to manufacturers in your constituency when a container load of counterfeit goods from China arrives through an accession country on their doorstep in June. You will have to answer for the impact this will have on local jobs and local manufacturers.

Directive on the enforcement of intellectual property rights

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