The European Parliament is to vote on a proposed law criminalising intellectual property infringements later today, after a fierce debate on its scope.
Some MEPs want to restrict the law's scope so that it only applies to infringements on a commercial scale "for the purpose of obtaining commercial advantage". This would mean that a teenager who illegally downloaded thousands of songs and inadvertently shared them with thousands of file sharers would not face a legal penalty.
But intellectual property rights holders are enraged by the inclusion of the reference to making a profit. They argue that this undermines the whole law and opens Europe to charges of hypocrisy - both the EU and the US have criticised China for a similar clause in its intellectual property laws, limiting legal action to cases where someone is profiting from an infringement.
The reference to commercial advantage was added to the text last month when the draft law was discussed by the parliament's legal affairs committee.
Since then MEPs from the Alliance of Liberals and Democrats group have drafted amendments that would return the law to its original scope, covering all infringements on a commercial scale.
An coalition including the Foundation for a Free Information Infrastructure (FFII), consumer groups and library associations has written to MEPs urging them to ignore the Liberals’ amendment. They say it leaves the scope of the law undefined.
FFII analyst Ante Wessels said: "This is a horrible proposal. How will the courts deal with the uncertainty? Ultimately, the European Court of Justice may decide, but what will be its decision? This way the community would make criminal law without any certainty about the final outcome.”
Another controversial clause in the draft law concerns inciting, aiding or abetting an intellectual property infringement. IT industry commentators have warned that the wording of this clause is ambiguous and that the law would deter people, especially in the software industry, from being innovative.
Theoretically, any network could find itself liable to criminal sanctions if it carries content that breaches someone's copyright or trademark. An internet service provider could be found criminally liable if a subscriber infringed someone else's intellectual property. Similarly, a software developer could be held criminally liable if they inadvertently breached another developer's copyright.
In reality the new law will not mean a huge change, as many EU countries already have criminal sanctions for intellectual property infringements, which are only ever invoked in cases involving major counterfeiting gangs.
But MEPs backing the new law argue that it would harmonise the rules across the EU member states.
Patents are almost certain to be exempt from the scope of the law, to the relief of IT companies and scientists. The European Commission had originally proposed applying criminal sanctions, including jail, in cases of patent infringement, but the proposal was thrown out by the Parliament's legal affairs committee.
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