I have blogged about this before here (link to NYT article) and here (discussion of Article 21 of the original proposal).
My criticism of Article 21 is moot now, since that Article has been dropped altogether in the latest compromise of February 16 2004, which is on the web at this FFII UK page.
FFII still has some reservations, which are discussed in this Slashdot story. They want:
1. Disputes about patents and trade secrets/confidential information taken out of the scope of the directive altogether. The draconian measures being discussed are completely inappropriate for such complex disputes.
2. The Directive should only apply where there is intent to infringe for commercial gain on a commercial scale. It should not apply unless there is good evidence of recklessness or a deliberate knowing intention to infringe.
3. Articles 7 to 10 should even then only apply in exceptional cases. It should be clearly stated in the Directive that they are not intended to become automatic standard procedure in all IP disputes.
I am pleased to see Article 21 deleted from the last draft, as well as the fact that Article 17 on damages has dropped the original idea of awarding the double amount of usual royalties, now reducing that to "at least the amount of royalties".
I also support all above FFII proposals for reducing the damage to be expected from this harmful and unnecessary legislation project.
The strongest reason against this special treatment of IP rightholders is from Ross Anderson.
"Justice: by insisting that Member States make things easier for plaintiffs in copyright and trademark cases, the Directive will distort the system of justice itself. Why should we make it specially easy for McDonalds to sue businessmen in Scotland for being called McDonald or even having the prefix `Mc' in their names, when someone suing McDonalds for compensation after their child dies of food poisoning has to jump traditional hurdles? Introducing special procedural privileges for certain classes of litigant is a drastic step, for which no intellectual justification has been offered."
Obviously there is a problem with equality pointed out by Anderson's example of McDonalds litigation.
But there is the added problem of consistency. If we get special rules for civil procedure and calculation of damages only for IP related disputes, all Member States will need two different sets of procedural law, leading to unnecessary complications.
Harmonizing the law on damages calculation and civil procedure in the EU might be a worthy project. This should however not be rushed and debated behind closed doors. And it should take into account the large amount of work on contract law to avoid inconsistencies, and certainly not be limited to the special field of intellectual property.
See also this IPJustice statement of February 11, 2004. There is also a written declaration of the European Parliament calling for "strong, harmonised civil sanctions for any intellectual property infringement and tough criminal penalties for commercial scale counterfeiting", and some more links from Axel H. Horns.