The Government is preparing to push through an EU directive on copyrightwhich critics claim favours the economic interests of big businesses, writes Karlin Lillington.
Prof Bernt Hugenholtz is not exactly given to understatement. He compares the pending European Union enforcement directive on intellectual property to introducing the death penalty in Europe.
"Draconian" and "a legal arms race" are somewhat milder epithets.
"I cannot believe this is happening," he adds for good measure, to an audience of lawyers and others interested in copyright and patent issues.
"This" is the Government's stated intention to push through this newly-drafted, controversial and complex directive within its Presidency term, virtually eliminating any time for considered debate on a piece of legislation that Prof Hugenholtz considers to be one of the most complicated ever introduced in the EU.
Intellectual property, or IP, is one of the most fraught areas of copyright and patent law to emerge in recent years, particularly in the technology sector.
There, in the most visible example of IP's practical implications, many consumers and technology companies have squared off against the entertainment industries over the issue ofdownloading files off the internet, and copyright-protection devices on music, films and DVDs.
But debate over IP is heated throughout the technology sector in the US, where large companies tend to argue in favour of strong protections, and smaller companies - especially those born out of the Open Source and Free Software movements - are pushing for a more relaxed regime.
Boiling down the issues is difficult, but at its most basic, the often passionate opposition between the two perspectives is this: many companies believe they make large financial and intellectual investments in creating products or services or ideas that should then belong to them alone - it should be their own intellectual property.
If others want to base their own offerings on their IP, they need to become licencees.
On the other side of the boxing ring are those who argue that the technology industry has developed incrementally as researchers built on the insights of others.
Certain insights and creations shouldn't belong to one person or company, they argue. They often cite the example of the development of the internet, where technological leaps were not patented. Therefore the internet is not owned by any government or company.
Prof Hugenholtz, who heads the Institute of Information Law at the University of Amsterdam, is one of the foremost practitioners of intellectual property law both in Europe and globally. The directive that has his feathers ruffled is one that determines how IP violations will be remedied.
And he's quite annoyed with the Government. "Ireland has been the black sheep of the European IP family for so many years," he says, noting that Ireland has consistently topped the list of laggard states when it comes to adopting previous IP legislation.
"The Irish track record in the field of IP is not very impressive. So I am surprised to see that Ireland has suddenly become a champion ofEuropean IP, and is rushing to adopt an IP directive that may have a much greater impact on national IP rights than any previous directive," he says drily.
The directive has already been a hot potato in both the European Parliament and various committees - surprisingly so, given that the topic at first glance is rather formidable and inaccessible.
The expectation - and in some corners, the fear - was that it would be pushed along with little debate or controversy.
Instead, the issue has, according to EU observers, ignited more frenzied lobbying and argument than has been seen for most directives.
Late last year, a compromise approach was hammered out that was, at least in some quarters, seen as middle ground for the various parties.
One heated area, the issue of software copyright and patents, has been hived off for separate consideration.
But further reworking has been done since that point and controversy is ready to flare again.
The major issue in Prof Hugenholtz's eyes is that the directive is not a simple harmonisation of existing EU law, but introduces new elements that he finds worrying.
"Are we harmonizing? No, we're talking about the introduction of a whole area of new legal remedies. Why should owners of IP rights have access to remedies that no regular, normal citizen would have," he asks.
He points to a controversial, "draconian"range of criminal sanctions that can be imposed on IP violators which, he says, go way beyond the kinds of remedies available in other types of property disputes.
These include the right to destroy the disputed goods; the total or temporary closing of the accused establishment; placing a company under judicial supervision;a ban on access to public subsidies; and a total or temporary restriction on business activities.
The Parliament wants the criminal sanctions out, but he argues there are still many heavy-handed civil remedies available as punishment that step outside what is granted in other property cases.
He is especially critical of the approach taken towards the whole area of piracy. In his opinion, the directive is too harsh on internet service providers and peer-to-peer file sharers, internet users who exchange files that often should be copyright-protected, making that sharing illegal.
In essence, under the directive ISPs would become a partner to any action brought against file sharers using an ISP's networks. To begin with, he questions whether piracy is actually on the increase, as the only data come from industry groups in the music and film sector.
And he thinks the measures are overblown compared to the problem: "This is targeting 14 and 15 year olds who might need a spanking and better education, but do they really need this plethora of remedies, this 'shock and awe' approach?" He believes the directive as it stands reflects the energetic lobbying of big companies in the halls of Brussels, rather than a balanced approach that considers existing national law and practice.
He describes the directive's approach as "Against this evil, no remedy is strong enough." And he closes by asking "why the economic interests of Microsoft, Vuitton and Vivendi weigh heavier than countless victims of car accidents. IP may not be so special as to require these remedies."
Prof Hugenholtz was delivering the annuallecture to the Copyright Association of Ireland.
