Rebutting the Labour spokesman on IPR Enforcement Directive activism

This Register article reproduces correspondence that august publication received about the coming EC Directive on the Enforcement of Intellectual Property Rights, which effectively provides for a right of inequality before the law for intellectual property rightholders.

In this correspondence, Adrian McMenamin, European Labour press officer and sometime Linux hacker, clearly knows the system of European legislation only too well. He says Robin Gross (an American lawyer) does not understand our system. Not only can I vouch for the fact that this is untrue, it is not even a reasonable inference to draw from the Register article his letter criticised.

Mr McMenamin claims that the new Directive does not require some of the crackdowns it has been attacked for encouraging. He is quite explicit in blaming individual member states if they go further than required, but it is a simple fact that EC Directives about intellectual property generally result in tougher national legislation than is actually required under their terms, because the procedures for national implementation of EC legislation leave little room for open or democratic debate.

Exaggeration and unjustified scare tactics are to be deplored, and Mr McMenamin is right to decry them, but to tar all opponents of unjust and overprotective IP legislation as supporters of the weakest and most misleading arguments on their side without confronting any of their stronger arguments is to misrepresent the position of many decent and honest concerned citizens. Nowhere in his statement is there any recognition of the arguments or beliefs of any but a numerically insignificant handful of his opponents.

Mr McMenamin argues that Britain already has many laws similar to the requirements of the Directive. This is to ignore the Directive’s underlying problem: many tough national IP laws are balanced by other laws or practices in that country. With its emphasis on requiring high standards of intellectual property protection, but only recommending balancing measures, the Directive risks undermining the balance in national law when it comes to be implemented, especially in countries such as Britain where requirements of EC Directives may easily be fast-tracked into statute law, but non-requirements may not.

Computer users of all stripes are affected by intellectual property laws, which are now largely made in places such as Brussels and Geneva, where they are subject to a much lower standard of democratic scrutiny than they would receive in national parliaments. Laws so passed are less likely to serve the public interest, and less likely to inspire the acceptance they need to be effective.

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