EU anti-piracy directive heads for final vote

Following approval by a parliamentary committee, a controversial intellectual property directive is headed for a fast-track vote next month

A proposed European Union law strengthening enforcement capabilities against intellectual-property violations has been approved by the European Parliament's judicial affairs committee (JURI), paving the way for a fast-track vote next month, despite harsh criticism from civil liberties groups.

The proposed directive was approved by JURI on Monday, and is set for a debate by the full Parliament on 8 March, followed by a parliamentary vote the next day, and approval by ministers on 11 March. If approved, member states would have two years to implement the directive's provisions in national law.

"Intellectual property: Enforcing the rights, measures and procedures", known as the Intellectual Property Rights Enforcement Directive, is primarily aimed at cracking down on organised piracy and counterfeiting in the EU, a growing problem. Critics, however, say its scope has been broadened to cover not just piracy for commercial purposes, but also involuntary acts or those committed by individuals without commercial intent or impact.

A spokesman for the Business Software Alliance, which has been fighting to broaden the directive's scope and penalties, said stronger enforcement was needed to curb the activities of criminal gangs, citing research that it says shows 37 percent of the software in use in Western European businesses is illegal. Reducing the UK's software piracy rate from 25 percent to 15 percent would add £10bn to the country's gross domestic product, £2.5bn in tax revenues and 40,000 IT jobs, according to IDC figures quoted by the BSA.

The Foundation for a Free Information Infrastructure, a Europe-wide digital rights group, criticised the directive's proposal to make harsh measures available for all alleged intellectual property infringements, potentially including individual acts by end users. "We are talking about unannounced dawn raids by private security firms, piling in with legal authority and seizing entire computer systems and filing cabinets full of documents," said FFII's UK coordinator, James Heald, in a statement. "That is a terrifying and destructive experience for a small firm."

The US-based group the Electronic Frontier Foundation said that while some of the remedies in the directive are only available for commercial-scale infringement, a loophole has been added in recital 13a -- a provision which defines "commercial scale" as "carried out for direct or indirect economic or commercial advantage".

"Although it goes on to say, 'This would normally exclude acts done by end consumers acting in good faith,' the meaning of 'indirect economic advantage' is unclear and the directive is not limited to intentional infringements," the EFF argued in an alert to EU citizens. "Therefore, there is concern that rights-holders will be able to use the new tougher penalties against consumers who accidentally or unknowingly infringe, including those who commit minor infringements without any commercial purpose or impact."

IP Justice, a civil liberties organisation based in San Francisco, argued the directive would lead to mass prosecutions of individual consumers, similar to those that the Recording Industry Association of America has undertaken in the US. "Similar subpoena powers created under the US Digital Millennium Copyright Act (DMCA) have allowed the recording industry to frighten and financially extort thousands of US consumers for P2P file-sharing of music," stated Robin Gross, IP Justice attorney and executive director. "The directive's bloated scope will allow the recording industry to violate the rights of millions of European consumers for minor infringements."

Several JURI MEPs debating the directive criticised the rush to send the draft through for fast-track "First Reading" approval next month, including German MEP Willi Rothley, according to an account of the meeting published by IP Justice.

Other MEPs argued the directive was uncontroversial, and should not even have an impact on the digital world. "This directive, contrary to public presentation, is not mainly about the commercial interests of the software industry, but about important brand names that are an incentive for criminal elements [tangibles]," said UK Conservative MEP Malcolm Harbour, according to the transcript. "When getting emails MEPs should reply that the directive is not about free software, and not even about the digital world. It should pass in First Reading."