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The European
Parliament adopted a resolution drafted by Nicola ZINGARETTI (PES,
IT) amending the proposed directive on criminal measures aimed at
ensuring the enforcement of intellectual property rights, by 374 votes in
favour to 278 against with 17 abstentions. Parliament sought to
reduce the directive’s scope. Its amendments clarify that it should only
apply to counterfeiting and piracy. Industrial property rights under a patent
will be excluded from the provisions of this Directive. In particular, the
Directive does not apply to any infringement of an intellectual property
right related to patent rights, utility models and plant variety rights,
including rights derived from supplementary protection certificates; and
parallel importation of original goods from a third country which have been
allowed by the rightholder. Accordingly, criminal sanctions shall not be
applied in cases of parallel importation of original goods from a third
country which have been allowed by the rightholder. The fair use of a
protected work, including such use by reproduction in copies or audio or by
any other means, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship or
research, does not constitute a criminal offence. The remaining
amendments were as follows: Parliament
introduced a number of definitions: "intellectual property rights"
(this would include copyright and related rights, sui generis right of a
database maker, rights of the creator of the topographies of a semiconductor
product, trademark rights, "in so far as extending to them the
protection of criminal law is not inimical to free market rules and research
activities", design rights, geographical indications and trade names);"infringements on a commercial scale", and "intentional
infringements of an intellectual property right"; - penalties
will include criminal fines for natural persons and criminal or non-criminal
fines for legal persons. These include an order requiring the infringer to
pay the costs of keeping seized good; - repeated
offences committed by natural and legal persons in a Member State other than
their country of origin or domicile must be taken into account when
determining the level of penalty; - Member
States should ensure that the misuse of threats of criminal sanctions is
prohibited and made subject to penalties. Member States should prohibit"procedural misuse, especially where criminal measures are employed for
the enforcement of the requirements of civil law; - Member
States shall ensure that the rights of defendants are duly protected and
guaranteed; - with regard
to joint investigation teams, Member States must put in place adequate
safeguards to ensure that such cooperation does not compromise the rights of
the accused person, for example by affecting the accuracy, integrity or
impartiality of evidence; - Article 8 of
the Charter of Fundamental Rights of the European Union, which concerns the
protection of personal data, and Directive 95/46/EC on the protection of
individuals with regard to the processing of personal data and on the free
movement of such data must be fully respected in the course of investigations
and judicial proceedings; - lastly, a
new article 10 provides that, where law enforcement authorities seize
infringing items or obtain other evidence of infringement, the authorities
must make such evidence available for use in pending or contemplated civil
proceedings against the alleged infringer brought by the right-holder before
a court of competent jurisdiction within the European Union. Where
practicable, those authorities must inform the right-holder concerned that
they are in possession of such items or evidence. Member States may require
that any such provision of evidence to the right-holder be made subject to
reasonable access, security or other requirements so as to ensure the
integrity of the evidence and to avoid prejudice to any criminal proceedings
that may ensue.
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