Lisbon Treaty - Computer Crime?

FionnMatthew · 09-06-2008 2:17pm #1

Lisbon Treaty - Computer Crime?
Perhaps someone can clarify this for me.

ARTICLE 69 B

1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.

2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the
adoption of the harmonisation measures in question, without prejudice to Article 61 I.

3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the
Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 10(2) of the Treaty on European Union and Article 280 D(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

ARTICLE 69 C

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.

ARTICLE 69 D
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.

In this context, the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:
(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;

(b) the coordination of investigations and prosecutions referred to in point (a);

(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network. These regulations shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.

2. In the prosecutions referred to in paragraph 1, and without prejudice to Article 69 E, formal acts of judicial procedure shall be carried out by the competent national officials.

ARTICLE 69 E

1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.

In the absence of unanimity, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 10(2) of the
Treaty on European Union and Article 280 D(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.

3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.".

POLICE COOPERATION

68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty:

I've underlined the bits that worry me particularly. They worry me in relation to the issue of copyright infringement. I'm all for more stringent measures against computer crimes like online sex crime. But online sex crime and, say, online copyright infringement are two rather different sorts of things, the former having to do with, potentially, human rights and being a substantive evil, the latter having to do with perceived fiscal and civil loss, and being a debatable evil. The former is a serious crime in my book. The latter seems to be an entirely more trivial sort of crime, the policing of which is mostly in service of large copyright industrial bodies, and undeserving of attention at a pan-European level.

So I'm worried about the extension of the term "computer crime." As far as I know copyright infringement is currently a civil matter, and typically is not prosecuted as a criminal offense in most jurisdictions, but I wonder if there is a legal ambiguity in the term, which might allow for intellectual property law to come under the issue of computer crime.

I wonder, also, whether the definition of "offences (sic) against the union's financial interests" might in some interpretations include the issue of civil copyright infringement, since, as many advocates of the copyright industries would have it, copyright infringement supposedly has a large gross effect on the entertainment industries, and perhaps, by proxy, on national and international economies too.

Perhaps these interpretations are not valid, and if so, good. But the wording worries me, and I'll tell you why. I myself believe copyright is a concept we ought to be putting behind us, or at least severely curtailing in a great many sectors. It is a metaphysically incoherent concept, and legally, it can only subsist on social justificatory arguments, which are fast becoming obsolete. Copyright, and the broader spectrum of intellectual property, if it is not done away with entirely in the next while, really should undergo quite radical change, to cope with the way technology is developing.

I am not alone in thinking this, and there is quite a widespread advocacy for social change on this issue, especially on the internet. You yourself may be aware of this. Perhaps you are not, though, and perhaps you disagree. But, nonetheless, there should be an avenue in a democratic society for pursuance and consideration of social reform on this issue, it being a legitimate concern of a growing number of people (and, I contest, a key issue for the upcoming generations.)

Perhaps my intuitions are off on this too: I had thought that it might be more easy to push for social change on a national basis - Ireland being a far smaller pond. But perhaps the European courts are so designed as to be more amenable to this sort of reform. On the other hand, it seems that big governments and big businesses go hand in hand, and part of the reason social change is not already underway is that the copyright industries have a vested interest in the continuance of intellectual property, and they have deep pockets. And one wonders whether this article in the Lisbon treaty might make the goal of social reform in this area even less of a possibility.

Scofflaw · 09-06-2008 4:21pm

Interesting questions.

The second is the simpler - "offences against the financial interests of the Union" cannot be held to include copyright infringement on the basis you suggest - "a large gross effect on the entertainment industries, and perhaps, by proxy, on national and international economies too" - because, first, the effect is unproven, second, the contribution of any single infringement to it is negligible, and third, allowing such a definition would extend the scope of the statement to include all crime, since all crime has a negative economic impact. Finally, and most importantly, the statement is about the financial interests of the Union, not the member states or the economies thereof.

The first question - is copyright infringement a computer crime with a cross-border dimension - is slightly trickier. The EU has legislated on copyright, and the member states harmonised their legislation in 2001-2002 on foot of Directive 2001/29/EC.

A further directive, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, requires all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy. However, it covers only civil penalties, not criminal.

Finally, there is a proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights - intended to supplement Directive 2004/48/EC. The directive was proposed on July 12, 2005 by the Commission, but has been extensively held up since, not least by the Dutch Government, on the basis that the EU has no power to legislate in respect of criminal matters, and that the proposed legislation breached both the competence of the EU and the principles of subsidiarity and proportionality.

It would seem to me that the Commission could well choose to define copyright infringement as a computer crime with a cross-border dimension, and that that may well be part of the reason for the inclusion of the term. However, it is hard to see how a pan-European solution to identity theft, DDOS etc can be created without putting such powers into the remit of the EU.

cordially,
Scofflaw

FionnMatthew · 10-06-2008 1:33am

Great. Thanks Scofflaw.

Can I come back with a response?

This is actually a really serious matter for me, and I believe it should be for many others too.

"offences against the financial interests of the Union" cannot be held to include copyright infringement on the basis you suggest - "a large gross effect on the entertainment industries, and perhaps, by proxy, on national and international economies too" - because, first, the effect is unproven, second, the contribution of any single infringement to it is negligible, and third, allowing such a definition would extend the scope of the statement to include all crime, since all crime has a negative economic impact. Finally, and most importantly, the statement is about the financial interests of the Union, not the member states or the economies thereof.

That puts that to bed then. I wonder about the last part though, because the wording of 69D doesn't seem to rule out that crimes against individual member states might be construed as having to do with the Union as a whole, reading it in the following way:

ARTICLE 69 D
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.

In this context, the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:
(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;

But I suppose the question is moot, since on the first two counts in your answer,

The first question - is copyright infringement a computer crime with a cross-border dimension - is slightly trickier. The EU has legislated on copyright, and the member states harmonised their legislation in 2001-2002 on foot of Directive 2001/29/EC.

A further directive, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, requires all Member States to apply effective, dissuasive and proportionate remedies and penalties against those engaged in counterfeiting and piracy. However, it covers only civil penalties, not criminal.

I might have a look at that, if it's on the web somewhere. One thing I wonder is whether that's an exhaustive list of activities, and whether personal copyright infringement (the sort committed when one photocopies a library book, for example) comes under either of those headings (counterfeiting and piracy. - as I understand it, piracy is illegal sale of copyrighted goods, or involvement in a process which results in that, or something like that, right?.)

And with the above directive in mind, are Irish governments already obliged to enforce European-endorsed copyright law? Does this amount to a pre-Lisbon euro-copyright endorsement? Does the treaty make a difference then?

Finally, there is a proposed directive on criminal measures aimed at ensuring the enforcement of intellectual property rights - intended to supplement Directive 2004/48/EC. The directive was proposed on July 12, 2005 by the Commission, but has been extensively held up since, not least by the Dutch Government, on the basis that the EU has no power to legislate in respect of criminal matters, and that the proposed legislation breached both the competence of the EU and the principles of subsidiarity and proportionality.

It would seem to me that the Commission could well choose to define copyright infringement as a computer crime with a cross-border dimension, and that that may well be part of the reason for the inclusion of the term.

Would that amount to going over the heads of, say, the Dutch government, and circumventing the delays on this proposed directive?

One of the reasons this worries me so is that part of the reason for the stringency of US copyright law in the last century was the mutual friendliness between Hollywood and Washington. One reads about such things as the Hollings Bill and so forth. I can't think of any possible reason a federal style government would want to push forth so steadfastly with initiatives like this except that there is huge pressure (among other things) coming from influential corporations with financial interest in copyright law. But I would argue (although not here) that it is not a foregone conclusion that any such measures should be taken, and that we ought to be going the other way, and that in many respects, the tightening of the copyright noose is quite counterdemocratic. If nothing else, this is one process that needs to be more transparent.

However, it is hard to see how a pan-European solution to identity theft, DDOS etc can be created without putting such powers into the remit of the EU.

Well... could it not stipulate out this sort of activity? Or would that be really tricky?

Thanks again,
Fionn

Lisbon Treaty - Computer Crime?

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