471 lines
18 KiB
HTML
471 lines
18 KiB
HTML
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<head>
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<title>IPRED2 - The second "Intellectual
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Property Rights" Enforcement Directive</title>
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</head>
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<body>
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<h1>Criminalisation of copyright and trademark infringement</h1>
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<p>
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Support FSFE's work on this and similar
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projects: <a href="https://my.fsfe.org/donate">join the Fellowship of
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FSFE</a>, <a href="/help/donate">donate to FSFE</a>, and
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encouraging others to do each.
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</p>
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<ol>
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<li><a href="#status">Status</a></li>
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<li><a href="#active">Previous activity</a></li>
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<li><a href="#summary">Summary of Directive</a></li>
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<li><a href="#harm">Harmful effects on software freedom</a>
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<ul>
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<li><a href="#swpat">Software patents: Enforcement through fear</a></li>
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<li><a href="#models">Harm to efficient software production/distribution models</a></li>
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<li><a href="#abuse">Encouragement of commercial abuse, like SCO's</a></li>
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<li><a href="#indemnification">Inability to indemnify</a></li>
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<li><a href="#grey-areas">Developers in grey areas: DeCSS, filesharing</a></li>
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</ul>
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</li>
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<li><a href="#text">Reading the proposal text: "2006/0168(COD)"</a>
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<ul>
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<li><a href="#directive">The procedure details</a></li>
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<li><a href="#problems">The problems</a>
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<ul>
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<li><a href="#limits">Weak limits: "intentional" & "commercial scale"</a></li>
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<li><a href="#investigation">Disproportionate access for rights holders</a></li>
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</ul>
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</li>
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</ul>
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</li>
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<li><a href="#options">What we can work for</a></li>
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<li><a href="#links">External links</a></li>
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</ol>
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<h2 id="status">Current status</h2>
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<p>
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On the 25th of May, 2007, the European Parliament held it's "1st
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reading" vote. FFII have published
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a <a
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href="http://action.ffii.org/ipred2/Plenary1_Tabled_Amendments">table
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with each of the amendments</a> indicating which were adopted
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and which were not.
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</p>
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<h2 id="active">Previous activity</h2>
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<p>
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For information on FSFE's position before the European
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Parliament's 1st reading, see
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<a href="letter-april-2007.html">our April 2007 open letter to
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the MEPs</a>.
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</p>
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<h2 id="summary">Summary of the Directive</h2>
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<ul>
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<li>The proposed
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Directive: <a
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href="http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2006/com2006_0168en01.pdf">com(2006)168</a></li>
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</ul>
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<p class="quote">
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"Article 3<br />
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Offences<br />
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Member States shall ensure that all intentional infringements of
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an intellectual property right on a commercial scale, and
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attempting, aiding or abetting and inciting such infringements,
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are treated as criminal offences."<br />
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(Article 3. Page 9 of the proposed directive)
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</p>
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<p>
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The EU definition of "Intellectual property rights"
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lumps together patents, copyright, trademarks, design
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protections, and many other categories of law. No definition is
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given for "intentional" or "commercial
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scale", and no examples are given for what would be
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included or what would be excluded.
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</p>
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<p>
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This directive is often called "IPRED2", however we
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recommend not using terms that talk about "Intellectual
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Property" as
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this <a href="http://www.gnu.org/philosophy/not-ipr.html">leads
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to confusions</a> that make our work more difficult. Instead,
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it can be called "The Criminalisation Directive".
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</p>
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<h2 id="harm">Harmful effects on software freedom</h2>
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<h3 id="swpat">Software patents: Enforcement through fear</h3>
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<p>
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We expect that the European Parliament will amend the proposed
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Directive to exclude patents from the scope. This is important
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because although the European Patent Convention excludes
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software from patentability, the European Patent Office is
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granting thousands of patents on software ideas. While >90%
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of litigation based on such patents would fail in court, they
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give the patent holders a legal basis for threatening software
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producers/distributors with litigation.
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</p>
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<p>
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If patent infringement is not removed from this Directive, then
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the threats of jail time, massive fines, seizing of assets, and
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closure of business could generate enough fear among computer
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users to make people obey invalide patents granted on software
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just because the stakes are too high. (For more on the issue of
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software patents, see the page
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about <a href="/activities/swpat/swpat.html">FSFE's work to
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prevent software patentability</a>.)
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</p>
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<h3 id="models">Harm to efficient software production/distribution models</h3>
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<p>
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Greatly increasing the risks involved in software development
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and distribution will indirectly discriminate against many
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software models. High legal risks are easier to bear for bodies
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with large funds and full time legal staff.
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<a href="/freesoftware/freesoftware.html">Free Software</a>, which
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is often contributed to by individuals, by Small- and
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Medium-sized Enterprises, and by businesses whose core business
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is not software, would be one category of software which would
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bear this indirect discrimination.
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</p>
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<h3 id="abuse">Encouragement of commercial abuse, like SCO's</h3>
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<p>
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Giving litigators increased access to the resources of national
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enforcement bodies, and increasing the severity of effects which
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can be achieved by litigation, will encourage people to use
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litigation as a commercial tool in the market.
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</p>
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<p>
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SCO in the USA is a well-known example of this: without proving
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anything or even showing any evidence, they have accused IBM and
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others of intentional, commercial-scale "IP"
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infringement, and have slowed the adoption rate of Free Software
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such as
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the <a
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href="/freesoftware/gnuproject.html">GNU/Linux</a>
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operating system and harmed the reputation of a handful of
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companies (competitors to Microsoft, one of SCO's major
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funders).
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</p>
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<h3 id="indemnification">Inability to indemnify</h3>
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<p>
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Since criminal offenses cannot be indemnified against, patent
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litigation insurance would not be possible, and software
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producers could no longer provide indemnity to distributors of
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their software.
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</p>
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<h3 id="grey-areas">Developers in grey areas: DeCSS, filesharing</h3>
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<p>
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The European Copyright Directive (<a
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href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML">com(2001)29ec</a>)
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greatly increased the scope of copyright law. As well
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as prohibiting unauthorised copying of information, copyright
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law now restricts how the public can use technology to access or
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view copyrighted information. For example, you are a copyright
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infringer if you develop your own software to watch a standard
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DVD that you have bought. Writing software to share files with
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others over a network could be copyright infringement; it's a
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grey area. The threat of jail sentences and the other harsh
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measures in this directive could scare people away from writing
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or publishing many types of useful software, including types of
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software which are illegal-but-tolerated or which are grey areas.
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</p>
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<h2 id="text">Reading the proposal text: "2006/0168(COD)"</h2>
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<p>
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The IPRED2 proposal was originally published in two parts, but
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in May 2006 it was republished as one
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directive: <a
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href="http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2006/com2006_0168en01.pdf">com(2006)168</a>).
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</p>
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<p>
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The reason for republishing and changing from two parts to one
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part is that there was a precedent-setting case in the European
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Court of Justice which implies that EU directives can require
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member states to implement criminal sanctions.
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</p>
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<h3 id="directive">The procedure details</h3>
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<p>
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The following information in this paragraph applies to the first
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published version of IPRED2, but it is likely to be the same for
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the current proposal.<br />EP Responsible committee: Legal
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Affairs (JURI)<br /> EP
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Rapporteur: <a
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href="http://www.europarl.europa.eu/members/public/yourMep/view.do?language=EN&id=28419">Nicola
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Zingaretti</a> (PSE, Italy).<br /> EP committees giving
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opinions: Industry, Research and Energy (ITRE), Internal Market
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and Consumer Protection (IMCO), Civil Liberties, Justice and
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Home Affairs (LIBE).
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</p>
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<h3 id="problems">The problems</h3>
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<p>
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The major problems with the directive are Articles 3 and 4
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(pages 9 and 10 of the document). Article 3 is quoted in
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full <a href="#summary">above</a>. Article 4 lists the harsh
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punishments that must be made available for the actions
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described in Article 3. These include jail sentences, fines,
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closure of business, destruction of goods, being placed under
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judicial supervision, and a ban on access to public assistance.
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</p>
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<h4 id="limits">Weak limits: "intentional" & "commercial
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scale"</h4>
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<p>
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The phrase "<span style="font-style: italic;">all
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intentional infringements [...] on a commercial
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scale</span>", will lead many people to think that this
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directive will only apply to pre-meditated law-breaking for
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profit.
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</p>
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<p>
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Consider a patent holder's lawyer trying to coerce a software
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developer into ceasing distribution of their software.<br />
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Lawyer: "Hello. You're infringing our patent, cease
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distribution of your software."<br />
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Software developer: "There must be a mistake. I've never
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read a patent, and anyway, software functionality isn't
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patentable in the EU."<br />
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Lawyer: "Well, the European Patent Office granted this
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patent, and you infringe it"<br />
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Software developer: "It's very unlikely to be held up in
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court."<br />
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Lawyer: "Since you intentionally wrote your software, and
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since your software is affecting the softwar market, your
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infringment is intentional and commercial scale - that makes you
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a criminal. Will you cease distribution or risk getting a
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criminal record and possibly having your business closed, a
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large fine imposed, and maybe spend some time in jail?"<br />
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Software developer: "...but, my software development was
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intentional, but my infringement wasn't. I didn't even know
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about this dubiously valid patent."<br />
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Lawyer: "Well, since I've accused you of infringing it,
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you're aware of it now. So any continued infringement is
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definitely intentional. Will you now cease
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distribution?"
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</p>
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<p id="busker">
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A simpler example is a person playing songs on the street for
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the change that people throw. The proposed text makes the
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musician a criminal if any song they play is copyrighted and is
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played without first obtaining a license. It also makes the
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person that drove them into the city centre a criminal, for
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aiding the infringement. People that throw money or stand
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around a listen could be criminals for inciting the
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infringement. And anyone that can prevent the infringement, but
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doesn't, is a criminal for abetting the infringement. This type
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of example can be useful to help people to understand how
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ludicrous the text is, but it doesn't explain the harm to
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software freedom, so it's only good as a stepping stone to
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further understanding.
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</p>
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<h4 id="investigation">Disproportionate access for rights holders</h4>
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<p>
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The directive also gives special privilege to rights holders to
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influence the investigation:
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</p>
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<p class="quote">"Article 7<br />Joint investigation
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teams<br />The Member States must ensure that the
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holders of intellectual property rights concerned, or their
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representatives, and experts, are allowed to assist the
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investigations carried out by joint investigation teams into the
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offences referred to in Article 3."
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</p>
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<p>
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Also of concern is Article 8 (page 11) which says that Member
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States should investigate and prosecute "intellectual
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property right" infringements, even when the rights-holder
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has not requested it.
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</p>
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<h2 id="options">What we can work for</h2>
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<ul>
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<li>
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We can ask the European Parliament and the Council of
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Ministers to limit criminal sanctions to cases where the
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infringement was done to fund organised crime or causes a
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health or safety risk to the public. Organised crime and
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public health and safety risks are stated as the
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justifications of this directive, so tying the Articles to the
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justifications seems reasonable.
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</li>
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<li>
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We can ask the European Parliament and the Council of
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Ministers to remove the criminalisation of "attempting,
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aiding or abetting and inciting [intellectual property right]
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infringements". For most EU member states,
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this is proposing harsher punishments for incitement or
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abetting of "intellectual property right"
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infringements than currently exist for actually committing
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such an infringement.
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</li>
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<li>
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We can build pressure in the European Parliament to simply
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reject this directive. Drafting law is the European
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Commission's responsibility, not the European Parliament.
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Since the Commission has handed the Parliament this directive
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which is basically one single sentence containing undefined
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and vague terms, it would be reasonable for the Parliament to
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reject this proposal on the grounds that the Commission has
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not done its job.
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</li>
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<li>
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We can look into the case law of existing criminal sanctions
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for patent, copyright, and trademark infringement. Some MEPs
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think that this direcitve is simply harmonising existing
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laws. In fact, laws like this exist in very few EU members
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states - and it would be interesting if we knew how often they
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were used. If they are old, rarely-used laws, then it would
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be hard for anyone to advocate making them mandatory across
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the EU.
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</li>
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<li>
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We can try to get patents excluded from this directive. This
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is quite practical because patents are particularly easy to
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infringe unknowingly. Doing so unknowingly may not shield
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anyone from the criminal sanctions here because
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"intentional" may apply to the act which lead to
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infringement (writing the software) rather than the
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infringement itself. Further, even if unknowing infringement
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was excluded, this directive would give patent holders the
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power to turn an offence into a crime simply by informing the
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infringer. This would have obvious uses in the market -
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informing an infringer just before a product release or during
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the bidding for a contract are two examples of valuable
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misuse.
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</li>
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</ul>
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<h2 id="todo">What needs to be done immediately</h2>
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<p>
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Hopefully this webpage will be useful for informing others. If
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you think something should be added to this webpage, please
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contact us.
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</p>
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<p>
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Many Member States already have criminal sanctions for copyright
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and trademark infringement, and some even have criminal
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sanctions for patent infringement. When politicians ask
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"What harm have existing criminal sanctions caused in other
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EU Member States?" we need to have a list of good examples.
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This list has to be gathered, and for that we need your help.
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</p>
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<h2 id="links">External links</h2>
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<ul>
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<li>
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The proposal: <a
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href="http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2006/com2006_0168en01.pdf">com(2006)168</a>.
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(Also linked to above.)
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</li>
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<!-- Information should become available at this webpage, but it's not there now -->
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<!-- <li> -->
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<!-- <a -->
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<!-- href="http://www.europarl.eu.int/oeil/FindByProcnum.do?lang=en&procnum=COD/2006/0168">The -->
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<!-- European Parliament information page for the directive</a>. -->
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<!-- </li> -->
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<li>
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<a href="http://www.gnu.org/philosophy/not-ipr.xhtml">Did You
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Say "Intellectual Property"? It's a Seductive
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Mirage</a>, an essay by Richard Stallman about terminology.
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</li>
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<li>
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<a
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href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT">The
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Charter of Fundamental Rights</a>. This directive seems to
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violate Article 49 on proportionality of criminal penalties.
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</li>
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<li>
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A ZDNet UK article: <a
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href="http://insight.zdnet.co.uk/business/legal/0,39020487,39211542,00.htm">Making
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IP infringement a crime</a>.
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</li>
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<li>
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<a
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href="http://europa.eu.int/eur-lex/en/com/pdf/2000/com2000_0789en01.pdf">com(2000)789</a>,
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a related Communication from the Commission.
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</li>
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<li>
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<a
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href="http://www.europa.eu.int/eur-lex/pri/en/oj/dat/2004/l_195/l_19520040602en00160025.pdf">IPRED-1,
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this directive's predecessor</a>
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</li>
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</ul>
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</body>
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</html>
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