(Updated March 17, 2010, 12pm).
KEI has learned that the European Union has proposed language in the ACTA negotiations to require criminal penalties for “inciting, aiding and abetting” certain offenses, including “at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale.”
The EU proposal is reported on a recent (but still secret) version of the Anti-Counterfeiting Trade Agreement Consolidated Text [1], and reads as follows:
[EU: ARTICLE 1. OFFENCE/CRIMINAL INFRINGEMENTS1a. TRADEMARK COUNTERFEITING, COPYRIGHT AND RELATED RIGHTS PIRACY ON A COMMERCIAL SCALE
Each party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark infringement and copyright or related rights piracy on a commercial scale.
[EU: ARTICLE 2. LIABILITY, PENALTIES AND SANCTIONS
2B. INCITING, AIDING AND ABETTING
The provisions of this section shall apply to inciting, aiding and abetting the offences referred to in Article 1.
Willful copyright or related rights piracy on a commercial scale is defined in the ACTA text to include:
“significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain”
As well as cases involving commercial advantage or [US/Japan: private | AUs/NZ: private] financial gain.
The EU proposal on inciting, aiding and abetting uses language that was proposed earlier in a controversial proposed EU directive on the enforcement of intellectual property called IPRED2 [2], as well as in a November 30, 2009 Council Conclusions on model provisions, guiding the Council’s criminal law deliberations [3].
There is some controversy over the competence of the European Commission to propose treaty language on criminal matters. But the EU is clearly identified in the “deliberative draft” of the ACTA text as the sponsor of the proposal on criminal sanctions for inciting, aiding and abetting infringement.