A triumph of efficiency over democracy

If the Intellectual Property Rights Enforcement Directive will benefit large corporations and erode protections for individuals, why have our elected representatives been so keen to rush it through the European Parliament?

On Tuesday, large multinational conglomerates with large, valuable intellectual property holdings were handed a new instrument for fighting piracy, in the form of the Intellectual Property Rights Enforcement Directive (IPRED) passed by the European Parliament.

Unfortunately, the directive is also likely to give them the authority to conduct surprise raids, freeze bank accounts and confiscate property in cases where little of commercial value is at stake. This would make things easier if companies decide, for example, to crack down on individuals using file-sharing networks -- a move where the main intent is to terrify and humiliate in order to make an example for others.

An interesting feature of this directive is that despite attracting a lot of bad publicity and ire from consumer groups and civil liberties organisations, plus a very well organised list of amendments that would bring the directive under control, MEPs changed nothing in Tuesday's vote.

Early on, the Council of Ministers complained that the directive would be too controversial if, as originally planned, it actually made criminal sanctions (cops, jail time) available to all intellectual property offences. People might object to legislation that would throw people in jail for copying songs off the Internet, and this might delay the directive going through, which would be a hassle. So, the European Parliament, bravely ignoring the outrage of the International Federation of the Phonographic Industry (IPFI), the Business Software Alliance (BSA) and others, dropped the criminal sanctions.

Never mind; the BSA, IPFI and other large rights-holders have promised to get EU-wide criminal sanctions for all IP offences instituted by some other means, presumably ones where democracy is even less of an obstruction than in the European Parliament. Their justification: music piracy and that sort of thing might seem innocuous, but the proceeds are often used to fund organised crime and even -- according to a recent publicity campaign, which was immediately shown to be a hoax -- international terrorism.

Another change earlier on, presumably made in order to allow the parliament to mouth a few platitudes about their restrained and balanced approach, was a note in the directive's preamble which says some of the harsher sanctions, like the freezing of bank accounts, should "normally" only be used in cases of large-scale "commercial" infringement. However, it would appear that companies should feel free to disregard this advice, especially since the definition of "commercial" -- as imparting "direct or indirect economic advantage" -- is so vague that it could be applied to almost anything.

On the other hand, perhaps it shouldn't be a surprise that the directive wasn't amended any further, despite the storm of controversy that accompanied its passage through the parliament and the heated protests of rights groups in Europe and the US. MEP Janelly Fourtou, wife of Vivendi's chief executive, obviously didn't expect any changes, since she placed the directive on the "first reading" fast-track to a final vote. This is a very efficient process, but not one which allows much leisure for contemplation or debate, which is why it is usually reserved for the least controversial pieces of legislation.

Of course, once the directive is approved by the Council of Ministers, as is expected shortly, there is still a chance for legislators to interpret it at the local level before it is introduced into national law, in a maximum of two years' time.

One wonders if efficiency will win out over democracy here, too, as appeared to be the case with the EU Copyright Directive (EUCD) of 2001, implemented in UK law last year. This was one of the most controversial intellectual property laws of recent times, introducing DMCA-style measures that prohibit the circumvention of copy protection technology, to the detriment of researchers and smaller firms. Perhaps because of this UK legislators evidently felt they should play it safe, introducing the law in a form Parliament could not amend, a Statutory Instrument amending the Copyright, Designs and Patents Act 1988.

Considered by itself, the IPRED is bad enough, but, unfortunately, it has two equally sinister cohorts: the EUCD and "Patent law: patentability of computer-implemented inventions", otherwise known as the software patents directive, currently wandering somewhere in the EU's legislative process. All three contain drastic changes to the way intellectual property law works in the EU, benefit large, lawyer-rich corporations while eroding the protection of smaller companies and individuals, and have sailed through the legislative process with little alteration being allowed by the powers that be.

That's not quite accurate, actually: the software patents directive was so heavily criticised by small business groups, economists, computer scientsts, developers and the like that MEPs finally voted the law through with a host of alterations. These attempted to make it stick to its stated purpose of harmonising patent law, rather than what would have been the directive's actual effect, namely allowing holders of US-style software patents to exploit these properties in the EU. This expression of democracy so outraged Internal Market Commissioner Frits Bolkestein and others that they threatened to withdraw the directive and push through the measures they desired by other means -- presumably ones in which the ignorant masses wouldn't be able to interfere.

Sort of makes you wonder whose interests these laws are promoting, exactly, if not those of EU citizens.