German Enforcement Directive: Industry Favour Or Necessary First Step?

By Monika Ermert for Intellectual Property Watch
The German Parliament last Friday passed changes in copyright, patent and other intellectual property-related laws with the aim of better enforcement of IP violations in civil rights cases.

The changes transpose the much-debated European Union IP Enforcement Directive (IPRED) into German law. IPRED contains general obligations, precautionary and corrective measures, damages and extended information rights for rights owners in civil law complaints aimed at third parties like internet service providers (ISPs).

The disclosure of names and contact information of users of IP address by ISPs who are not party to a copyright violation has resulted in some tough debates in several EU member states and also in the German Parliament. Information about the match of IP addresses and users’ names so far only have been available to state attorneys in penal law cases, leading rights owners to flood courts in recent years with reports of offences, which gave them access to files collected by public prosecutors.

An information right in civil cases was “a novelty in German law,” said Jerzey Montag, spokesperson for the German Green Party on legal matters, during the debate in the German Bundestag last week. The question to be answered, according to Montag, was: “Shall we hand over special rights to the industry that in this modern world puts itself between the creators and the consumers and is the most powerful player with regard to copyright law – the entertainment industry?”

While Montag welcomed that a judge must decide on the disclosure of a user’s identity, he said the new law still contradicts existing German law on data privacy. “It is a kotow to the music industry,” he complained.

Moreover, the government’s proposal appeared contradictory to a recent ruling of the EU Court of Justice, C-275/06. The court ruled in January that national legislators were not obliged by IPRED and other EU directives to establish information disclosure for civil rights cases. Proportionality and fundamental laws of the Union – these include data protection and privacy laws – must be respected when transposing IPRED.

The Court of Justice decision was the reason for Sweden to postpone transposition of IPRED into Swedish law, said experts at the Max Planck Institute for Intellectual Property, Competition and Tax Law in Munich. A minority in Sweden had hoped for a clear objection to the information rights towards third parties, the experts said. Sweden, Germany and Luxembourg are last in transposing IPRED, according to a Commission official, after the Portuguese Parliament passed a law a few weeks ago. The deadline for transposition was 29 April, 2006.

The Max Planck experts confirmed that further changes would be necessary to effectively allow personal data disclosure in civil rights cases according to German law. Information about who used which IP address at a given time could only be disclosed if an access provider kept this information for financial reasons. Data stored by providers not for their own use but in compliance with the new EU Data Retention Directive is off-limits for IP civil rights cases, said Volker Kitz, a Max Planck researcher.

“If changes of data protection law are necessary we should do so speedily,” said Günter Krings, rapporteur at the German Bundestag for the ruling Christian Democratic Party. His party had favoured broad rights to information for the rights owners, said Krings.

Because the German solution in this respect is “falling behind most of the other EU member states,” according to Krings, “we still cannot avoid to lean on criminal law prosecution.” He welcomed the United Kingdom and French governments’ approaches, he said. Both are based not on legal obligations for ISPs to disclose users’ personal data, but on voluntary cooperation of communication providers and rights owners. Critics see this only as a shift of responsibility: ISPs would have to risk of breaking data protection laws or would need some immunity regulation for that.

Krings said he was highly critical with regard to some German state attorneys that publicly announced it would not prosecute cases against peer-to-peer filesharing users based on the reasoning that P2P filesharing was not commercial in nature. Yet Krings said he and his party had pushed for a broad interpretation of “commercial” in order to not only allow complaints against for-profit businesses, but also against those who economically benefited, for example by saving the money to buy a new CD.

All announcements that private users might be spared were only “placebos,” Montag said in the debate. In fact, announcements of members of the European Parliament back in 2004 that the directive was targeting product piracy and copyright infringement on a large and criminal scale seem to be forgotten.

Worrisome to some also was the export of the troublesome IPRED to developing countries, said Annette Kur of the Max Planck Institute. Kur said IPRED, not yet fully implemented in the EU, was made part of negotiations for free trade agreement negotiations with regions like the Caribbean.Before the law can be enacted, it must go before the Federal Council, the upper house of the Parliament.

IPRED 2 Complaint Still Pending

While the Union undertakes this exporting and member states continue to implement the Enforcement Directive, the follow-up directive that will address criminal law sanctions against infringements of copyright, trademark and other IP – with again the same definitions and promises for defining” commercial scale infringement” – seems to be gathering dust, according to observers.

A complaint by MEP Eva Lichtenberger (Green Party) about the exclusion of amendments voted in favour by the Parliament’s majority from the consolidated text still is pending. Lichtenberger criticised the fact that the consolidated text would criminalise parallel imports of original goods, something objected to by the Parliament.

“I am still waiting for an answer from the president of the Parliament,” said Lichtenberger, declaring, “I will not give up on it” after the unapproved text suddenly was published in the EU Official Journal. “It is now also a matter of principle,” she said.

A spokesperson for the parliamentary president told Intellectual Property Watch, “We are still working on the issue and hope to present a solution pretty soon.” There is no formal procedure for such a case, she added. It was normally up to the rapporteurs to resolve these kinds of misunderstandings in the draft documents, she said. Yet talks between Lichtenberger and Nicola Zingaretti, the main rapporteur for IPRED 2 have been not successful, according to Lichtenberger.

There is another roadblock down the road for IPRED 2. Member states, according to information from the Commission, object to the criminal law directive because further scrutiny with regard to the need for criminal measures. This is required under the “subsidiarity” principle of the Union, which has left national governments with primary competency for criminal law matters. Member states’ governments historically have tended to be critical of criminal law measures with regard to the issues that are part of the EU Internal Market, like intellectual property rights (the so-called EU first pillar). Also the European Council has preferred to wait for evaluation of IPRED and European Court of Justice decisions, according to the Commission.

Substantive provisions furthermore have to be limited to harmonised IP rights, a difficult task due to the lack of harmonisation, according to experts.

Monika Ermert may be reached at info@ip-watch.ch.