Proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights: efficient instrument or inadequate mechanism?

Due to the development of technology, the value of the IP protected goods increases, and so does the harm done by the infringers. The TRIPS Agreement expressly provides for criminal sanctions for the serious cases of trademark counterfeiting and copyright piracy where the offences are committed willfully and on commercial scale. The TRIPS Agreement also reserves a possibility for introduction of more severe national measures shall the countries wish so. On 12 July 2005 the Commission sent the European Parliament and the Council a proposal for a Directive on criminal measures aimed at ensuring the enforcement of intellectual property rights, which introduced criminal procedures and penalties for infringement of all IP rights. The Commission submitted that for smoother functioning and protection of the internal market, the Community measures which ensure greater level of protection than the ones laid down by TRIPS are necessary. The proposal faced heavy criticism from national governments, music industry, and consumer protection organizations who argued the need for criminal sanctions on the Community level. The document has consequently been amended and patents, utility models and supplementary protection certificates were taken out of the Directive's scope. In its latest version following the amendments adopted by Parliament in April 2007 the proposal criminalizes infringements of all other IP rights done intentionally and on commercial scale, as well as aiding, abetting and inciting such infringement is criminalized. This thesis examines the proposed directive, as well as the state of law in the field of IP enforcement both on global, Community and national level to assess whether there is an actual need and sufficient preconditions for the harmonization of criminal measures for IP enforcement on Community level