European Parliament set to vote on Enforcement Directive

The draft Directive, issued by the Commission in January last year, is intended to aid intellectual property rights holders in their fight against counterfeiting and piracy. It could result in increased fines and prison sentences for those infringing the rights of patent, copyright and trade mark owners.

The draft Directive has been intensely controversial, with copyright owners and big businesses lobbying for the legislation to be as tough as possible, and civil rights groups and smaller firms stressing that strong legislation will restrict innovation and hurt SMEs.

The UK Government is currently consulting on the proposals, but the draft has been amended several times with the final version, issued only last week, beefing up the proposals considerably, according to pressure group the Foundation for a Free Information Infrastructure (FFII).

The FFII is concerned that the scope of the legislation has been widened to apply to all species of intellectual property cases - including routine commercial disputes, and the US-style pursuit of individual teenage internet file-sharers.

The draft also extends what the FFII calls the "nuclear weapons" of IP enforcement law to member states where they have never been in use before. Such "nuclear weapons" include:

Anton Piller orders (secret court authorisations of raids for evidence by the plaintiff's agents);

Mareva injunctions (freezing of assets, even before a case has been discussed in Court);

new powers to demand the disclosure of very extensive commercial and personal information;

and the admissibility of denunciations by anonymous witnesses as court evidence.

The FFII says it is supportive of firm action to crack down on organised counterfeiting and piracy. But its concern is that:

"without better defined safeguards, the Directive may lead to a far more aggressive, lawyer-driven legal environment for creative businesses; and having seen how such legislation can be used in the US, that it may provide the means for aggressive litigators holding dubious intellectual property rights to use the powers of the Directive to seriously harass and potentially to inflict lasting damage on small innovative businesses."

The FFII believes that the best course would be for the Directive to be limited to its original proposed scope, namely commercially organised and intentional copyright and trademark infringement.