New EU Directive to punish digital piracy – but music industry wants more

The long-anticipated draft Directive, known as the Enforcement Directive, proposes tougher penalties for offenders. The music industry, however, attacked the draft, claiming it is "inadequate" and "falls sort of providing urgently needed tools" to tackle piracy.

The proposed Directive covers infringements of all intellectual property rights, including copyright and industrial property, such as trade marks and designs.

It deals with the enforcement of such rights and does not deal with their substance (e. g. it does not determine the extent to which intellectual property is protected in Member States' national laws).

The draft Directive concentrates on infringements carried out for commercial purposes, causing significant harm to rightholders, such as illegal commercial file-swapping services. It allows court orders to be served on ISPs, and also provides for counterfeiters to be jailed and have their accounts frozen.

The Directive will also establish the right for trade associations and collecting societies representing rightholders to initiate legal proceedings against pirates and counterfeiters.

For criminal sanctions to apply, the draft law requires that the infringement is "serious." An infringement is considered serious if carried out intentionally and for commercial purposes.

This means that the Directive itself will not introduce sanctions against individuals downloading music from the internet for their own use, though it will not stop Member Sates' authorities from introducing and applying tougher laws.

The Commission noted:

"Although considerable injury to rightholders can be caused by an individual via his/her computer linked to the internet, it is not in the interest of rightholders to spend a lot of time and money in litigation to catch offenders who are simply sharing a few files with a handful of friends."

Industry has not welcomed the proposals. In a joint statement, a group of trade associations, including the Business Software Alliance (BSA), the International Federation of the Phonographic Industry (IFPI) and the Motion Picture Association (MPA), claims that the draft Directive "fails to introduce urgently needed measures to hold back the epidemic of counterfeiting", and that it "falls short of providing the legal framework necessary to fight piracy in all its forms in the EU."

The proposed law fails, according to the industry, to harmonise national laws and ensure that "pirates can no longer play on national differences to avoid detection and prosecution."

The trade groups go further to suggest that the implementation of the Directive in its current form would only create confusion and "perpetuate a patchwork of different legal measures and procedures across the EU."

Finally, the joint statement claims that the draft Directive "gives the wrong political signal" and even "falls short of international standards of intellectual property protection." This is because, the industry says, it creates a two-tier system of enforcement, where some forms of piracy are acceptable and others not.

The statement claims that in Europe, film, video, music, and business and leisure software industries suffer losses in excess of €4.5 billion annually. This figure is expected to increase when the EU enlarges next year.