A careful balance needs to be maintained between the need for effective measures to stamp out organised counterfeiting, theft and piracy on the one hand, and the need to avoid such measures being misused by the most powerful to unduly harass or intimidate legitimate individuals and competitors.
This seems a sensible balance between the need for protection of rights owners and free commercial trade.
But a new EU Directive could potentially distort the fine balance between protection and competition and according to its critics could kill off innovation within the EU.
Those in favour of the proposed EU Directive (2003/0024 (COD))
The intention is to aid intellectual property rights owners in their fight against counterfeiting and piracy, which takes place on a wide scale, particularly during times of major sporting events such as the Uefa Championships (Portugal 2004), the Olympic Games (Athens 2004) or the Fifa World Cup (Germany 2006).
The proposed directive is also designed to cover computer games, music, software and even fashion.
The European Parliament will vote for introducing tougher measures, including fines and imprisonment for breach of intellectual property rights such as trademarks, patents and copyrights. This will include situations where there is accidental or non-deliberate breach of such rights -- a move which will send shudder through many marketers involved in research and development of new products and services in competitive markets.
For example, the proposed EU Directive states: "Member states should have the option of providing, in cases where an infringement has been carried out unintentionally and without negligence and where the corrective measures or injunctions provided for by this directive would be disproportionate, for the possibility, in appropriate cases, of pecuniary compensation being awarded to the injured party as an alternative measure."
This would have a profound impact on the outcome of cases that could be brought before English courts as a presumption of infringement in favour of the claimant could emerge even before the legal arguments are heard.
The proposed directive could also introduce an extension to orders that haven't traditionally been available to rights holders right across the EU. These include:
Those against the proposed EU Directive
The main argument against the proposed directive isn't about the rights and wrongs of enforcement of intellectual property rights -- rather that this should be restricted to cracking down on organised pirates and counterfeiters rather than those who accidentally infringe such rights.
Pressure groups, such as the Foundation for a Free Information Structure (they may need some PR advice here) as well as the US pressure group Electronic Freedom Foundation point to issues to do with human rights.
If a person who unwittingly infringes copyright -- even if it has no effect on the market -- could potentially have their assets seized, bank accounts frozen and home invaded.
This sounds like 'Big Brother' a la 1984 (rather than the reality TV show of the same name) so the pressure groups have vowed to campaign against the proposed directive, which, they say, will:
This could turn the EU into a lawyer driven legal environment similar to that experienced in the US, where aggressive litigators holding dubious intellectual property rights use their powers to inflict lasting damage on smaller competitors, say the opponents to the directive.
Solution?
The proposed EU Directive should spell out the evidential burden of proof required to launch a successful action for infringement of intellectual property rights throughout the EU as this remains a fertile area for legal dispute.
After all, the success or failure of a legal action depends on its facts.
Catching every unintentional act of infringement by individuals where there's no clear commercial motive at play seems a bit like taking a sledge hammer to crack a nut.
We'll watch the vote with interest.
Ardi Kolah appears on the Chartered Institute of Marketing's global . He is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online
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