natgillin/translations-raw huggingface dataset:
Consequently, though attention should be drawn to the absence of any protection in criminal law under other legal systems (for example under English, Belgian and Greek law), the introduction of provisions of this kind at Community level would duplicate existing provisions and make the system even more cumbersome, unless we suppose that, either through the insertion (by means of an appropriate amendment) of an explicit provision to that end in the directive or as a result of the 'automatic primacy' of Community law
Consequently, though attention should be drawn to the absence of any protection in criminal law under other legal systems (for example under English, Belgian and Greek law), the introduction of provisions of this kind at Community level would duplicate existing provisions and make the system even more cumbersome, unless we suppose that, either through the insertion (by means of an appropriate amendment) of an explicit provision to that end in the directive or as a result of the 'automatic primacy' of Community law
This primacy, of course, arises from the requirement that national judges apply Community law in full, and consequently disregard any domestic law that conflicts with it, whether it was passed before or after the Community law in question (cf.
This primacy, of course, arises from the requirement that national judges apply Community law in full, and consequently disregard any domestic law that conflicts with it, whether it was passed before or after the Community law in question (cf.
Court of Justice, judgment of 9 March 1978, Case 106/77, Simmenthal, in ECJ reports 1978, p.
Court of Justice, judgment of 9 March 1978, Case 106/77, Simmenthal, in ECJ reports 1978, p.
629, point 24). , Community legislation on the subject could completely replace the corresponding national legislation.
629, point 24). , Community legislation on the subject could completely replace the corresponding national legislation.
Secondly, seeking to apply criminal penalties in the area of patent law seems to be plainly in breach of the position taken by the European Parliament when, at its plenary sitting of 6 July 2005, it rejected the Commission proposal for a directive on the patentability of computer-implemented inventions ( 2002/0047(COD) ).
Secondly, seeking to apply criminal penalties in the area of patent law seems to be plainly in breach of the position taken by the European Parliament when, at its plenary sitting of 6 July 2005, it rejected the Commission proposal for a directive on the patentability of computer-implemented inventions ( 2002/0047(COD) ).
Given that an overwhelming majority of the European Parliament
Given that an overwhelming majority of the European Parliament
648 votes to 14, with 18 abstentions. considered at that time that it was inappropriate to adopt legislation on the subject, any attempt now to provide for criminal penalties to protect patents (which are not currently regulated) would be a limited and dangerous foray into a very complex area which, for that very reason, requires a regulatory framework that it as systematic and widely endorsed as possible.
648 votes to 14, with 18 abstentions. considered at that time that it was inappropriate to adopt legislation on the subject, any attempt now to provide for criminal penalties to protect patents (which are not currently regulated) would be a limited and dangerous foray into a very complex area which, for that very reason, requires a regulatory framework that it as systematic and widely endorsed as possible.
In the light of the foregoing, the rapporteur proposes amendments to Articles 1 and 2 of the proposal for a directive in order to demarcate its scope and provide the relevant definitions.
In the light of the foregoing, the rapporteur proposes amendments to Articles 1 and 2 of the proposal for a directive in order to demarcate its scope and provide the relevant definitions.
In practical terms, the effect is to exclude from the scope of the directive the subject of patents by establishing that, pending the adoption of more comprehensive rules on patents at Community level in future (in the form of a suitable directive), the provisions of the present proposal should not apply to patents.
In practical terms, the effect is to exclude from the scope of the directive the subject of patents by establishing that, pending the adoption of more comprehensive rules on patents at Community level in future (in the form of a suitable directive), the provisions of the present proposal should not apply to patents.
This would avoid prejudging the content (including the criminal aspects) of any future legislation on patents.
This would avoid prejudging the content (including the criminal aspects) of any future legislation on patents.
Moreover, it would restrict the scope of the directive to those intellectual property rights provided for by Community legislation.
Moreover, it would restrict the scope of the directive to those intellectual property rights provided for by Community legislation.
Finally, for reasons of internal consistency, the rapporteur proposes minor amendments to recital 5 and the text of Article 2, and clearer and more rational wording for Articles 5, 6 and 7.
Finally, for reasons of internal consistency, the rapporteur proposes minor amendments to recital 5 and the text of Article 2, and clearer and more rational wording for Articles 5, 6 and 7.
Future developments
Future developments
The rapporteur hopes that, when drawing up future strategies to combat piracy and counterfeiting, and as we embark on an era of greater harmonisation in this field, the Community legislator will consider the possibility of finding ways and means of also punishing those who acquire goods whose provenance is unlawful.
The rapporteur hopes that, when drawing up future strategies to combat piracy and counterfeiting, and as we embark on an era of greater harmonisation in this field, the Community legislator will consider the possibility of finding ways and means of also punishing those who acquire goods whose provenance is unlawful.
OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY
OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY
on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights
on the amended proposal for a directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights
Draftsman: David Hammerstein Mintz
Draftsman: David Hammerstein Mintz
Following a recent judgement of the European Court of Justice in case C-176/03, the Commission is proposing a directive on criminal measures and intellectual property rights (IPRs) under Article 95 of the Treaty.
Following a recent judgement of the European Court of Justice in case C-176/03, the Commission is proposing a directive on criminal measures and intellectual property rights (IPRs) under Article 95 of the Treaty.
Without prejudice to the competence of the Committee on Legal Affaires it is worth noting that there are serious concerns about the European Commission's broad interpretation of the judgement as set out in Communication COM(2005)583; and, as a consequence, about the legal base of the proposal.
Without prejudice to the competence of the Committee on Legal Affaires it is worth noting that there are serious concerns about the European Commission's broad interpretation of the judgement as set out in Communication COM(2005)583; and, as a consequence, about the legal base of the proposal.
Concerning the issues under the competence of the Committee on Industry, Research and Energy, the main elements to be considered are the following:
Concerning the issues under the competence of the Committee on Industry, Research and Energy, the main elements to be considered are the following:
(a) scope of the directive;
(a) scope of the directive;
(b) definition of "commercial scale";
(b) definition of "commercial scale";
(c) definition of "intentional infringement of an IPR";
(c) definition of "intentional infringement of an IPR";
(d) criminalization of abetting and inciting;
(d) criminalization of abetting and inciting;
(e) joint investigation teams;
(e) joint investigation teams;
(f) fundamental rights.
(f) fundamental rights.
The scope of this piece of legislation is to tackle counterfeit and piracy, particularly in the music, luxury goods, clothing industries and related sectors.
The scope of this piece of legislation is to tackle counterfeit and piracy, particularly in the music, luxury goods, clothing industries and related sectors.
However, there are serious concerns regarding the possible effects of this Directive when measures to combat counterfeiting and piracy are simply generalised as applicable to all forms of IPRs.
However, there are serious concerns regarding the possible effects of this Directive when measures to combat counterfeiting and piracy are simply generalised as applicable to all forms of IPRs.
It needs to be stressed that infringements of certain IPRs varies in nature and manner of infringement, which means that measures to combat infringements of those IPRs should differ.
It needs to be stressed that infringements of certain IPRs varies in nature and manner of infringement, which means that measures to combat infringements of those IPRs should differ.
There is a distinction between patent infringements in the normal course of commercial activity, such as the legitimate development of products, and counterfeiting and piracy with fraudulent and deliberate intent.
There is a distinction between patent infringements in the normal course of commercial activity, such as the legitimate development of products, and counterfeiting and piracy with fraudulent and deliberate intent.
There are civil remedies for patent infringements and alleged patent infringers should not be equated with criminals like pirates and counterfeiters.
There are civil remedies for patent infringements and alleged patent infringers should not be equated with criminals like pirates and counterfeiters.
A company may need to infringe a patent intentionally in order to demonstrate that the patent at issue is not valid, and this contributes to innovation.
A company may need to infringe a patent intentionally in order to demonstrate that the patent at issue is not valid, and this contributes to innovation.
In this context, the infringement should remain a civil matter as is currently the case, unless the infringement constitutes a serious threat to public health or safety.
In this context, the infringement should remain a civil matter as is currently the case, unless the infringement constitutes a serious threat to public health or safety.
Commercial scale
Commercial scale
The reference to commercial scale was introduced but not defined by the TRIPS Agreement.
The reference to commercial scale was introduced but not defined by the TRIPS Agreement.
However, the language of the TRIPS Agreement, the use of that phrase throughout the whole Agreement, and the context helps to interpret the concept.
However, the language of the TRIPS Agreement, the use of that phrase throughout the whole Agreement, and the context helps to interpret the concept.
It refers to for-profit infringement only which causes significant direct loss to the holder of an IPR; non-profit exchange of legally acquired content between individuals must be excluded from the application of the directive.
It refers to for-profit infringement only which causes significant direct loss to the holder of an IPR; non-profit exchange of legally acquired content between individuals must be excluded from the application of the directive.
As the legislative proposal intends to penalize infringement on commercial scale only, it is essential to have a clear definition of that in order to avoid legal uncertainty.
As the legislative proposal intends to penalize infringement on commercial scale only, it is essential to have a clear definition of that in order to avoid legal uncertainty.
We can not rely on Member States' practice on that field as it varies from one Member State to another.
We can not rely on Member States' practice on that field as it varies from one Member State to another.
Intentional infringement of IPRs
Intentional infringement of IPRs
Only the knowing acts of infringements that are intentional could be sanctioned with criminal measures: it covers only those cases when the perpetrator is aware that he is infringing IPRs, and he is doing it intentionally with malice aforethought.
Only the knowing acts of infringements that are intentional could be sanctioned with criminal measures: it covers only those cases when the perpetrator is aware that he is infringing IPRs, and he is doing it intentionally with malice aforethought.
Distinction must be made as an infringement should not be considered intentional simply because it is part of an intentional activity such as listening to music or watching films.
Distinction must be made as an infringement should not be considered intentional simply because it is part of an intentional activity such as listening to music or watching films.
Abetting and inciting
Abetting and inciting
It is important to distinguish between patent infringements in the normal course of commercial activity (legitimate development of products) and counterfeiting and piracy with fraudulent and deliberate intent, which are often carried out by criminal organizations.
It is important to distinguish between patent infringements in the normal course of commercial activity (legitimate development of products) and counterfeiting and piracy with fraudulent and deliberate intent, which are often carried out by criminal organizations.
Criminal sanctions for abetting and inciting any criminal act must be saved for the most serious crimes; to penalize abetting and inciting is disproportionate in case of infringement of intellectual property rights.
Criminal sanctions for abetting and inciting any criminal act must be saved for the most serious crimes; to penalize abetting and inciting is disproportionate in case of infringement of intellectual property rights.
The Charter of Fundamental Rights must be fully respected, in particular paragraph 3 of Article 49, which states that 'the severity of penalties must not be disproportionate to the criminal offence'.
The Charter of Fundamental Rights must be fully respected, in particular paragraph 3 of Article 49, which states that 'the severity of penalties must not be disproportionate to the criminal offence'.
Joint investigation teams
Joint investigation teams
Article 7 of the proposal authorizes the experts and representatives of the holder of the IPRs to assist the investigation.
Article 7 of the proposal authorizes the experts and representatives of the holder of the IPRs to assist the investigation.
Though it is the holder of the IPRs indeed who could identify his goods and products without doubts, care must be paid in this regard.
Though it is the holder of the IPRs indeed who could identify his goods and products without doubts, care must be paid in this regard.
First, as it is for the holder of IPRs to authorize or forbid the use of his intellectual product, and also because of the protection of the holder of the IPR, only duly authorized and mandated representatives could assist the investigation team.
First, as it is for the holder of IPRs to authorize or forbid the use of his intellectual product, and also because of the protection of the holder of the IPR, only duly authorized and mandated representatives could assist the investigation team.
Secondly, assistance given by either the holder of IPRs or its representative must be limited in order to avoid 'privatizing' the criminal procedure; more extensive or more active involvement of the holders of the IPRs would pose a risk to the fair and impartial investigation and criminal procedure.
Secondly, assistance given by either the holder of IPRs or its representative must be limited in order to avoid 'privatizing' the criminal procedure; more extensive or more active involvement of the holders of the IPRs would pose a risk to the fair and impartial investigation and criminal procedure.
Fundamental rights
Fundamental rights
The Charter of Fundamental Rights must be fully respected when defining criminal acts and sanctions, as well as in the course of the investigation and the judicial procedure.
The Charter of Fundamental Rights must be fully respected when defining criminal acts and sanctions, as well as in the course of the investigation and the judicial procedure.
Particular attention must be paid to the following articles of the Charter: Article 8 on data protection; Article 47 on fair trial; and Article 49 on legality and proportionality of criminal offences and penalties.
Particular attention must be paid to the following articles of the Charter: Article 8 on data protection; Article 47 on fair trial; and Article 49 on legality and proportionality of criminal offences and penalties.
The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:
The Committee on Industry, Research and Energy calls on the Committee on Legal Affairs, as the committee responsible, to incorporate the following amendments in its report:
Recital 9
Recital 9
(9) To facilitate investigations or criminal proceedings concerning intellectual property offences, these may not be dependent on a report or accusation made by a person subjected to the offence.
(9) To facilitate investigations or criminal proceedings concerning intellectual property offences, these may not be dependent on a report or accusation made by a person subjected to the offence.
Criminal investigation authorities should not be able to act on their own initiative prior to a complaint by the right-holder, because licensing arrangements are not published.
Criminal investigation authorities should not be able to act on their own initiative prior to a complaint by the right-holder, because licensing arrangements are not published.
The right-holder has the fundamental right to dispose of his rights as he desires.
The right-holder has the fundamental right to dispose of his rights as he desires.
Recital 9 a (new)
Recital 9 a (new)
(9a) The rights set out in the Charter of Fundamental Rights of the European Union should be fully respected when defining criminal acts and penalties, during investigations and in the course of judicial proceedings.
(9a) The rights set out in the Charter of Fundamental Rights of the European Union should be fully respected when defining criminal acts and penalties, during investigations and in the course of judicial proceedings.
Article 1, paragraph 1
Article 1, paragraph 1
This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights.
This Directive lays down the criminal measures necessary to ensure the enforcement of intellectual property rights.
This Directive lays down criminal measures necessary to combat and deter the intentional infringement of intellectual property rights on a commercial scale .
This Directive lays down criminal measures necessary to combat and deter the intentional infringement of intellectual property rights on a commercial scale .
Article 1, paragraph 2
Article 1, paragraph 2
These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States.
These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States.
It harmonises these criminal measures at EU level where this is necessary to combat the intentional infringement of intellectual property rights committed under the aegis of a criminal organisation, or where they carry a health or safety risk.
It harmonises these criminal measures at EU level where this is necessary to combat the intentional infringement of intellectual property rights committed under the aegis of a criminal organisation, or where they carry a health or safety risk.
Without prejudice to measures that already exist in Member States, the measures laid down in this Directive shall apply only to wilful trademark infringement, including counterfeiting, and copyright piracy.
Without prejudice to measures that already exist in Member States, the measures laid down in this Directive shall apply only to wilful trademark infringement, including counterfeiting, and copyright piracy.
In cases of patent infringements this would interfere with the civil law systems of the Member States.
In cases of patent infringements this would interfere with the civil law systems of the Member States.
Article 1, paragraph 2 b (new)
Article 1, paragraph 2 b (new)
The non-profit exchange between individuals of legally acquired content is excluded from the scope of this Directive.
The non-profit exchange between individuals of legally acquired content is excluded from the scope of this Directive.
Article 2, title
Article 2, title
Article 2, paragraph 1 a (new)
Article 2, paragraph 1 a (new)
For the purposes of this Directive, "infringement on a commercial scale" means for-profit infringement of an intellectual property right which causes significant direct loss to the holder of that right.
For the purposes of this Directive, "infringement on a commercial scale" means for-profit infringement of an intellectual property right which causes significant direct loss to the holder of that right.
Though the TRIPS Agreement does not define what is meant by 'commercial scale', the context of the TRIPS, the use of that expression throughout the whole text, and the analysis of the negotiation process of the TRIPS make the definition clear.
Though the TRIPS Agreement does not define what is meant by 'commercial scale', the context of the TRIPS, the use of that expression throughout the whole text, and the analysis of the negotiation process of the TRIPS make the definition clear.
Article 2, paragraph 1 b (new)
Article 2, paragraph 1 b (new)
For the purposes of this Directive, "intentional infringement of an intellectual property right" means deliberate and knowing infringement of that right.
For the purposes of this Directive, "intentional infringement of an intellectual property right" means deliberate and knowing infringement of that right.
Article 2, paragraph 1 c (new)
Article 2, paragraph 1 c (new)
For the purposes of this Directive, 'counterfeiting' includes:
For the purposes of this Directive, 'counterfeiting' includes:
(a) holding with no legitimate reason, importing under any customs arrangements or exporting goods presented under a counterfeit trade mark;
(a) holding with no legitimate reason, importing under any customs arrangements or exporting goods presented under a counterfeit trade mark;
(b) offering for sale or selling goods presented under a counterfeit trade mark;
(b) offering for sale or selling goods presented under a counterfeit trade mark;
(c) reproducing, imitating, using, affixing, deleting or modifying a trade mark, a collective mark or a certified collective mark in violation of the rights conferred by the registration thereof and of the prohibitions stemming therefrom;
(c) reproducing, imitating, using, affixing, deleting or modifying a trade mark, a collective mark or a certified collective mark in violation of the rights conferred by the registration thereof and of the prohibitions stemming therefrom;
(d) knowingly supplying a product or service having a different registered trade mark from that of the producet or service requested.
(d) knowingly supplying a product or service having a different registered trade mark from that of the producet or service requested.
Penalties can be applied only if there is a clear definition of the concept of counterfeiting, which has to cover all types of infringement of intellectual property rights, including holding counterfeit goods..
Penalties can be applied only if there is a clear definition of the concept of counterfeiting, which has to cover all types of infringement of intellectual property rights, including holding counterfeit goods..