European lawmakers agreed a compromise in new intellectual property protection measures yesterday, designed to mitigate fears by civil-liberties campaigners that elements of that law could be applied in too wide-ranging a way.
On the law's original measures, the director of EU Affairs for the European Digital Rights lobby group Andreas Dietl compared them to the controversial US Digital Millennium Copyright Act. He told the BBC: "Under this law, your home is not your castle anymore. You will have to defend it quite aggressively."
His fears were echoed by IP Justice head Robin Gross, who told AP: "The proposed directive would allow recording-industry executives to privately invade the homes of file sharers to gather evidence for civil prosecutions."
The antipiracy law was originally intended to prevent piracy of a wide range of goods – from CDs to videos, perfumes to football shirts – even products such as Viagra.
The new law was led through Europe's Parliamentary process by MEP Janelly Fourtou, wife of Vivendi Universal CEO Jean-Rene Fourtou. As it went through the lawmakers, it morphed into a more far-ranging set of statutes, civil-liberties campaigners said.
They warned that the law would be used to clamp down on individuals who copy music off the Internet, as well as those who make money copying goods created by others.
Intellectual property rights owners, such as record companies and software manufacturers, see the law as a step in the right direction, but said it falls short of their expectations.
"Rights-holders are unhappy about it, but it is an in-between solution we can live with," said Francisco Mingorance, director of public policy in the Brussels office of the Business Software Alliance.
Rights-holders wanted tougher laws to impose criminal punishments for all types of intellectual property infringements.
Personal vs commercial use
In the face of opposition from civil rights campaigners, the European Parliament chose to restrict the law to cover commercial piracy only.
"Simply put", A European Parliament press representative said, "consumers acting in good faith will be excluded from the Directive – individuals copying music recordings for their own use would not 'normally' be penalized."
This means rights holders can demand bank details and computer information only about intellectual property abusers who operate commercially. They will need an injunction to get such access – some MEPs had wanted to give rights holders much easier access to the premises and private information of abusers.
Dietl remained critical of the law, as it did not specify the judicial level at which such an injunction could be granted, "a competent judicial authority could be a court clerk. We wanted this law to specify that a judge should sign such an injunction," he said.
European Parliament legal affairs and internal market PR Tanja Rudolf told Macworld: "Intellectual property abuse for personal use will not be held liable according to the provisions of the directive. So, people who download music from the Internet can not be penalized under the directive," she said. She added that the law does not conflict with existing human-rights legislation in Europe.
The exclusion of individuals from the law may emerge as a simple reprieve while Europe orghanizes new legislation. Internal Market Commissioner Frits Bolkestein said: "We will look into further measures providing criminal sanctions to piracy in due course. Effective action against piracy requires such sanction."
Counterfeiting and piracy cost the UK Treasury £1.5 billion a year, while the European Commission's own figures claim it costs €8 billion a year in lost economic output between 1998 and 2001. 35 per cent of software bought in Western Europe was pirated, according to the Business Software Allliance (BSA).
In the ten central and eastern European countries set to join the union in May, the problem may be more acute. The BSA estimates 65 per cent of all computer software in use there is pirated.
Europe's decision to impose a pan-continental law covering this activity is required because much such activity crosses national boundaries.
Clifford Chance intellectual property lawyer Thomas Vinje said that the new law only serves to set minimum standards. He observed that the laws in some countries such as Britain and Italy are too harsh. "The laws in these countries are often abused by rights holders," he said. Harmonizing the rules across the EU should have forced these countries to tone their laws down.
"The issue of protection of intellectual property isn't as black and white as it's made out to be. A Europe-wide law should take into account the fact that rights holders will abuse IP laws in order to gain a competitive advantage if they can. This law won't do that," he said.
The ten new Eastern European states that are joining the European Union in May have had no hand in drafting the law – which has been led through the parliamentary process in some haste. A second debate on the law, which is usual practice, is not being held, for example. This means the code will be set in place by the time the ten new states join Europe.
"It's an odd lesson in democracy for the former communist states of central Europe," Vinje said.