Future guidelines for the new programme on establishment of an area of freedom, security and justice
British Music Rights comments on the DG JAI Consultation
31st August 2004
British Music Rights welcomes the opportunity to comment briefly on the Communication "Area of Freedom, Security and Justice" identifying the future necessary measures in the domain of justice and home affairs for the period 2004 - 2009.
One of our member organisations, the Mechanical Copyright Protection Society (MCPS) (see note 1), is actively involved in enforcing the rights of UK composers and publishers through its Anti Piracy Unit; many enforcement agencies such as MCPS use criminal sanctions in their activities, as do Trading Standards Authorities and the Crown Prosecution Services in the UK.
Composers and songwriters rely on the protection provided by copyright (and in some cases trademarks) to earn their living and to optimise the best conditions under which they can continue to create music. Music publishers are only able to invest in new creative talent in the knowledge that they have an opportunity to recoup their investment through the rights afforded by copyright. It is partly through their collective management societies (MCPS and PRS) that they protect their interests and rights.
We are very pleased that the Commission is now addressing some of the conclusions of the Workshop: "Fight against counterfeiting and products piracy" in January 2003 involving several Commission departments, e.g. DG MARKT, DG TAXUD, DG TRADE, DG JAI as well as representatives of agencies involved in enforcement in practice such as Europol, Eurojust and national police forces.
We expect that in particular the involvement of international criminal agencies, and exchange of information at all levels (e.g. via Eurojust, but also between national enforcement agencies) will help addressing the increasing criminal activities of organised gangs. This is of course subject to adequate funding being provided for their activities. For example, at the abovementioned conference it was stated that at that time only one Europol employee (out of 460) dealt with counterfeiting and piracy (which is certainly not sufficient). We suggest that further harmonisation of criminal sanctions at European level should be considered within future guidelines and are at the disposal of the Commission for further discussions on our experience in the UK (e.g. the recently published IP Crime strategy) (see note 2).
Criminal sanctions
During the run-up to the adoption of the Enforcement Directive, uncertainties of member states about the competence of the European Union to provide criminal sanctions under an Internal Market instrument lead to their exclusion in the Directive. This considerably undermined the strength and purpose of the final Directive which in this regard now provides a lesser standard than that already available under Article 61 of the TRIPS Agreement. Criminal sanctions are not only crucial for our anti-piracy activities but also constitute the main deterrent for criminals involved in counterfeiting and piracy (see note 3).
Given that the main reason for the non-inclusion of criminal sanctions was the uncertainty of the procedure under Article 95, we urge DG JAI to consider without further delay possibilities within its remit such as a possible Framework Decision as already mentioned in 2003.
The MCPS Anti Piracy Unit uses mainly criminal provisions in its pursuit of infringers; even though in our experience, UK criminal law is already very good, we expect positive effects if criminal sanctions will be harmonised on a high level throughout the enlarged European Union. This will also reflect adequately the public interest in enforcement to combat the universally recognised repercussions of counterfeiting and piracy such as the link to organised crime.
Organised crime
The Alliance Against Counterfeiting and Piracy published a report "Proving the Connection" describing examples of the involvement of organised crime in counterfeiting and piracy (see note 4). This has also been acknowledged in the recent IP Crime Strategy published by the UK Patent Office.
Burden of proof
In the criminal area the rules on burden of proof in the UK pose excessive and disproportionate problems for right holders trying to enforce their rights. The practical experience of the MCPS Anti-Piracy Unit is that it is a typical ruse of counterfeiters and pirates to raise spurious arguments about authorship, title and lack of licence in order to cause delay and to frustrate prosecution. The availability of legal aid to defendants in criminal prosecutions allows them to exploit this legal loophole without financial risks. They hope to cause difficulties by insisting on the requirement that the author (often from a foreign country) has to come personally to give evidence which is not possible in practice. Additionally, this might also result in prosecutors with tight budgets having to drop a prosecution.
A change in the law to reverse the burden of proof would:
Finally, a reversal of the burden of proof would not conflict with human rights such as the principle of presumption of innocence. It is a matter of common sense that those who claim to have the licence needed to do an act should be able to produce it when challenged by the appropriate authorities. We would suggest that the requirement to present a licence to use copyright works does not raise any more human rights issues then the requirement to show one's driving licence or TV licence.
Customs control
Our very specific difficulty concerns the requirement of EC Regulation 1383/2003 on customs action against goods infringing intellectual property rights: the Regulation requires that there be a sufficiently detailed description of the goods to enable customs authorities to recognise them (see note 5). In the case of pirated musical goods this will be an impossible task. The first information that MCPS will have about pirated goods entering into the UK will normally be from customs themselves. MCPS can react immediately, and attend in order to examine the product if requested to do so but it cannot identify in advance which copyright works might have been infringed if it is unaware of the existence of the product.
We are at the disposal of DG JAI to discuss further or meet in person, including other representatives of the Alliance Against Counterfeiting and Piracy.
Notes
1. The MCPS collects and distributes 'mechanical' royalties generated from the recording of music onto many different formats. This income is distributed to their members - writers and publishers of music.
2. The UK IP Crime Strategy, developed by the Patent Office, brings together brand owners, police, trading standards and customs to:
Link to document: http://www.patent.gov.uk/about/enforcement/ipcrime.htm
3. The Commission stated in their press release on the occasion of the adoption of the enforcement directive, summarising the current situation:
"Although the Commission still believes that an effective fight against counterfeiting and piracy requires strong criminal sanctions, the adopted version of the Directive, unlike the original Commission proposal, does not contain provisions on criminal sanctions. The issue of including criminal sanction provisions in an Internal Market measure is currently under scrutiny by the European Court of Justice. The Directive as adopted is accompanied by a Commission declaration which indicates that the Commission "will examine the possibility" of proposing measures providing for criminal sanctions in the future."
4. http://www.aacp.org.uk/Proving-the-Connection.pdf
5. Article 5 (5) of Council Regulation EC No 1383/2003 of 22nd July 2003.