In March last year the European Parliament (EP) approved a directive that allowed harsher sanctions against infringers on the intellectual-property (IP) rights of others. Crucially this directive, known as the Intellectual Property Rights Enforcement Directive (IPRED), was amended to prevent criminal sanctions from being made available in all IP cases.
At the time, a coalition of rightsholder groups said it would continue to press for criminal sanctions at the EU level. Two weeks ago the European Commission announced that it had adopted proposals for a directive that would allow criminal-law provisions to combat infringements of IP rights. The Commission claimed that the proposed measures were merely "to align national criminal law", but some are concerned that the law will go much further and jeopardise open source developers, file sharers and companies using software that infringes intellectual property.
So what does the directive propose? The directive claims that it will apply to "all intentional infringements of an IP right on a commercial scale". The penalties to those caught offending include four years' imprisonment; fines; seizure and destruction of the offending goods; closure of the establishment used to commit the offence; a ban on engaging in commercial activities; and denial of access to legal aid.
The UK already offers criminal sanctions against those accused of infringing trademark or copyright, but not against those accused of infringing patents. The law in the UK is generally used only in cases of large-scale organised crime, while the European directive appears to offer enforcement against any type of IP infringement on a commercial scale.
Richard Penfold a partner at law firm DLA Piper Rudnick Gray Cary, said the proposed directive will "beef up criminal provisions" for those accused of infringing IP in the UK and will make IP infringement a more serious offence in many EU member states. He says the directive is aimed at organised crime but could impact free and open source software and businesses that are using infringing software.
Paul Stevens, a partner at law firm Olswang, says he did not think the law would affect the situation in the UK, as the directive was primarily about harmonisation and the UK justice system is likely to take a reasonable view to minor infringements.