The Second Intellectual Property Enforcement Directive (IPRED2), which we last covered earlier this month, came another step closer to passage yesterday, as it was approved by the European Parliament. The final version of the legislation removed some of the most controversial provisions, but critics still questioned why it was necessary to criminalize an area of law that has long been handled by the civil court system. The new directive mandates that those violating copyrights, trademarks, or certain other rights "on a commercial scale" or "inciting such infringements" be subject to fines up to €300,000 and up to a four years in jail.

"Today, 'inciting' is only criminal in some member states, and in exceptional cases such as hate speech. Elevating IPRs to the same level is a scary development," noted Jonas Maebe, an analyst with the Foundation for a Free Information Infrastructure, in the wake of the vote. "The inciting clause is also reminiscent of the US 'Induce Act', which threatened to make MP3 players such as the iPod illegal."

The directive is ostensibly designed to crack down on commercial piracy and counterfeiting operations, but critics warned that, thanks to the vague terminology of the directive, it could apply much more widely. They note that no definitions are offered for the terms "incitement" or "commercial scale," opening the possibility that the courts could interpret them to include innovators building new media products. Those terms could be interpreted, for example, to hold ISPs liable for the infringing activities of their users.

Critics did succeed in removing some of the original proposal's most egregious problems. The final directive excluded patent infringement from criminal penalties. Given the murky and inconsistent state of European patent law, critics worried that entrepreneurs could find themselves facing jail time for accidentally infringing upon an obscure patent. An amendment was also adopted ensuring that fair use of copyrighted works would not be considered a criminal offense.

However, most other intellectual property rights in Europe would be enforced with criminal penalties. For example, the penalties could be applied to violators of geographic indication rights. That would seem to mean that a winemaker from outside the Champagne region of France could not only be sued but thrown in jail for selling his sparkling wine as "champagne."

Ren Bucholz of the Electronic Frontier Foundation notes that the relatively close vote—374 to 278—points to growing opposition to the directive across Europe. The directive will now go to the Council of the European Union, which is made up of representatives of the governments of each of the EU's member countries. Several member countries, led by the UK and the Netherlands, have expressed concerns about the directive. Bucholz notes that if the Council disagrees with the Parliament's decision, IPRED2 would go back to the European Parliament for further consideration.