EC IP enforcement ‘threatens more SCO-style attacks’

Has 'pulling a SCO' entered the English language?

Campaigners issued a call to arms today ahead of a far-reaching directive on intellectual property rights due to go through the European Parliament's Legal Affairs committee next Monday.

The Foundation for a Free Information Infrastructure (FFII) expressed dismay at the progress of the contentious measures, which it has campaigned against for months. It said there were "serious unanswered concerns from across the EU - including the UK House of Lords".

The FFII is incensed at the inordinate haste with which the influential Legal Affairs committee is poised to rubber stamp the revised directive. The final text of the directive was released to the public only on Tuesday.

"It will have been only six days since the final text, drafted in secret without any public analysis of its detailed national implications" comes up for consideration, the FFII said.

'Nuclear weapons' of IP enforcement

Originally intended as a means to clamp down on criminal counterfeiting and piracy, the legislation has been widened in scope to apply to all types of intellectual property cases. The directive will cover everything from routine commercial disputes to the "American-style pursuit of individual teenage internet file sharers," the FFII warned.

The FFII is keenly to highlight the availability of "nuclear weapons" of IP enforcement law that would be introduced through the directive.

These include measures such as Anton Piller orders (secret court authorisations of raids for evidence by the plaintiff's agents); Mareva injunctions (freezing of assets, even before a case has been discussed in Court); new powers to demand the disclosure of very extensive commercial and personal information; and the admissibility of denunciations by anonymous witnesses as court evidence.

"In Europe these kinds of investigatory procedures are more usually associated with criminal proceedings with a much higher standard of proof, and are quite alien to the civil (non-criminal) justice systems of most of the member states," the FFII argues.

House of Lords' concerns

In June an earlier draft of the Directive was examined by a House of Lords scrutiny committee, chaired by Lord Scott of Foscote, the Law Lord who wrote the 1996 "Supergun" Arms to Iraq report. The committee expressed a number of concerns about the directive - such as the compatibility of
the directive with domestic law and the "challenges they may pose for human rights" - and declined to pass the directive.

No public assessment has yet been published on any of these points, the FFII reports.

The FFII is concerned that, without better defined safeguards, the Directive "may lead to a far more aggressive, lawyer-driven legal environment for creative businesses".

"It may provide the means for aggressive litigators holding dubious intellectual property rights to 'pull a SCO' and use the powers of the Directive to seriously harass and potentially to inflict lasting damage on small innovative businesses," it added.

FFII believes the directive should be limited to its original proposed scope, namely "commercially organised recklessly intentional copyright and trademark infringement". The European Parliament should allow at least a month from the publication of the Council draft text (17 Feb 2004) until the final closing date for amendments.

"This Directive is simply too important to get wrong," the FFII added. ®

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External Links

Proposed safeguards, and why FFII believes they are inadequate
Official text of the directive (PDF)
Legislative timetable, and contact details for relevant UK MEPs
Foundation for Information Policy Research pages on the Directive can be found here and here