An EU directive intended to target organised crime could see innocent victims face criminal proceedings for intellectual property (IP) violations, it has been claimed.


Specialist IP lawyers have criticised the Second Intellectual Property Rights Directive, approved last week by the European Parliament, which criminalises IP violations that have until now been subject to civil actions.



Critics of the legislation say the directive fails to provide clear definitions of the criminal offences it is trying to cover. As a result, although the imposition of criminal sanctions was supposed to be limited to counterfeiting and piracy, the directive's loose drafting could equally apply to individuals, businesses and Internet service providers (ISPs).



A report from the Law Society's IP working party noted that the directive called for IP infringements on a 'commercial scale' to be treated as a criminal offence, and that the same applied to aiding, abetting and incitement. It asked: 'But what is a "commercial scale"? Is it the market trader selling 50 fake DVDs a day or the person who has set up a factory to turn over 200,000 pirated DVDs every 24 hours?'



The report argued that there were similar weaknesses in the definition of aiding, abetting and incitement. It said: 'If you lend your video camera to someone who - unbeknown to you - secretly films the premiere of a new film, are you guilty of aiding a criminal offence?'



Other lawyers have warned that the ambiguous wording of the clause could also lead to an ISP being found criminally liable if a subscriber infringed someone else's IP.



MEPs backing the directive argued that it would harmonise rules across the EU, but would not cause huge changes because many member states already had criminal sanctions for IP infringements, which they only invoked when counterfeiting gangs were implicated.



Jonathan Rayner