The Commission proposal for a directive of the European Parliament and of the Council on measures and procedures to ensure the enforcement of intellectual property rights has met with some criticism.
Now the report of the Committee on Legal Affairs and the Internal Market of the European Parliament by Member of Parliament Janelly Fortou proposes many amendments to the original proposal. The report is item number six on this page on the Committee session of October 1.
I would like to focus today on the proposed amendment to Article 21 (legal protection of technical devices), and especially on the prohibitions in Paragraph 2 (d) of the proposed amendment, which are harmful, not necessary, and confusing. They should be dropped immediately.
The original proposal was:
1. Without prejudice to particular provisions applicable in the field of copyright, related rights and the sui generis right of the creator of a database, Member States shall provide for appropriate legal protection against the manufacture, import, distribution and use of illegal technical devices.2. For the purposes of this Chapter,
(a) "technical device" means any technology, device or component which, in the normal course of its functioning, is designed for the manufacture of authentic goods and the incorporation therein of elements which are manifestly identifiable by costumers and consumers and which make it easier to recognise the goods as being authentic.
(b) "illegal technical device" means any technical device which is designed to circumvent a technical device which permits the manufacture of goods infringing industrial property rights and incorporating manifestly identifiable elements described in point (a).
The Committee wants this amended to a completely new wording that is considerably longer and contains many more prohibitions. That wording is:
1. For the purpose of this Article, "technical device" means any technology, device or component designed to be applied to tangible products protected by an intellectual property right to facilitate the detection of counterfeit goods. "Illicit technical device" means any technology, device or component which misleads, is designed to deceive or is likely to mislead any person as to the authenticity of the tangible products concerned.
2. Member States shall provide for appropriate legal protection against:
(a) the manufacture, import, distribution, sale, hire, advertising for sale or hire, possession and use of illicit technical devices;
(b) the import or distribution of tangible products to which illicit technical devices have been applied or whose technical devices have been removed, tampered with or disabled;
(c) the application, on products that infringe intellectual property rights, of technical devices designed from the outset to be used by right-holders on authentic products;
(d) the act of removing, tampering with or disabling technical devices or circumventing them.
3. This Article shall apply to the technical devices applied to tangible products in the sense of physical objects, including their packaging, and not to digital goods. This Article shall be without prejudice to the provisions applicable in the area of copyright, associated rights and the sui generis rights of the manufacturer of a database.
4. Right-holders shall remain free to use technical devices within the meaning of this Article."
I have a few comments.
One is the relation to the 2001 copyright directive.
In that directive, Article 7 protects DRM information attached to works against removing, while Article 6 protects against the circumvention of technological measures.
Article 21 of the enforcement directive is like Article 7, not like Article 6. It doesn't protect against the copying of physical goods, but against removing information identifying these goods as authentic.
Therefore I think it is unfortunate that the proposed amendment wants to prohibit "circumvention" at (d) in the above text. This will lead to confusion with Article 6 of the copyright directive. Also, it doesn't seem to be necessary for the purpose, just as there is no prohibition against "circumvention" in Article 7 of the copyright directive, but only against removal and alteration of electronic rights-management information.
This prohibition should be removed.
As should all other prohibitions in (d).
If the prohibition against removing technical devices in (d) becomes law, one could understand that to mean that consumers would not be able to remove a RFID tag from a pair of jeans they have bought. Robin Gross understands even the original proposal in that way.
That, of course, would restrict consumer's freedom in an unacceptable way without contributing anything whatsoever to the protection of intellectual property rights.
For that purpose the prohibition in (b) against import and distribution of goods whose technical devices have been removed, tampered with or disabled is perfectly enough. There is no need for the stand-alone prohibition in (d), which only gives rise to confusion and the possibility of overbroad application.
The prohibitions in (d) should be deleted from the proposal.
Posted by Karl-Friedrich Lenz at October 12, 2003 12:12 PM | TrackBack