UK Law Society Warns EU On Criminalisation Of IP Infringements

by Robin Pilgrim, LawAndTax-News.com, London

25 September 2006

Earlier this month, the UK's Law Society warned that the European Commission’s proposals to criminalise commercial-scale infringements of all intellectual property rights are excessive.

In July 2005, the European Commission brought forward two related proposals concerning criminal measures related to the enforcement of intellectual property rights. One was a framework decision that would be adopted under the EU’s police and judicial cooperation powers (where the UK has a veto); the other was a directive that would be adopted under single-market rules (where generally speaking the UK does not have a veto).

The European Court of Justice ruled in September 2005 that certain criminal law provisions could be adopted under single-market rules if necessary to the effective implementation of the related single-market rules. The commission amended its existing proposals, in effect combining the two measures into one directive.

The court’s ruling was not clear, however, on the extent to which criminal measures could be included in a directive. By prescribing levels of fines and prison sentences in the text, the Law Society argued, the commission has gone beyond what the court’s ruling allows.

Speaking ahead of an European Parliament discussion of the proposals, Law Society President Fiona Woolf observed that:

”The commission has gone too far in bringing forward these measures, and it is not clear that they are wholly legal."

She added:

”The idea of imposing criminal sanctions on patent infringements is worrying. Breaching a patent is not like counterfeiting. It’s not the same as making counterfeit copies of CDs, which involve more obvious criminal intent. Infringement can be done without knowledge or intent, and it seems unsafe to make this a criminal offence, punishable by imprisonment. Intent to commit a crime must be proved. These EU measures should be limited to counterfeiting and piracy.”

”I want the commission to go back to the drawing board. It cannot be in anyone's interest to wait for this directive to be weighed down by legal challenges after its adoption.”

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