Track on Intellectual Property Rights on the Internet
Chairs: Blanca Torrubia Chalmeta. Lecturer, School of Law and Political Science (UOC)
Copyright at a Policy Cross-Roads – Online Enforcement, the Telecoms Package and the Digital Economy Act
What is copyright enforcement? Enforcement is about punishment, about forcing people to do things under penalty of being punished otherwise. That is usually done through courts, and can be written down in obligations (law, regulations, etc.) or even contracts (e.g. contractsthat users sign with service providers).
Sometimes enforcement will also imply a diminution of certain levels of privacy.
What the ‘Telecoms Package’ and the ‘Digital Directive’ tell us is that the fight to enforce copyright law is directly affecting mostly privacy issues and other fundamental rights.
Intermediaries in the eye of the copyright storm: A comparative analysis of the three strike approach within the European Union
File sharing still is increasing and becoming pervasive in all activities and strata of the society. And most measures to fight ‘piracy’ have failed. The safe harbour that was build for ISPs is, nevertheless, not unlimited.
Indeed, the enormous complexity of services provided by some operators have made it more difficult to tell whether an ISP is such, whether it is a content or a service provider, etc.
And we are still to find failures in terms of legality (of laws), proportionality, respect to fundamental rights, exemption of liability, etc. There is also a concern on how active preventive measures can still be neutral, or how traffic can be (fairly) managed.
The Tort Liability Law 2010 and the Regulation for the Protectoin of Information Network Dissemination rights are the framework for Internet regulation in China. They provide, like other laws, the safe harbour for web 2.0 service providers.
In order to harmonize different opinions in different courts, the Higher Court of Beijing issued a guide to help the courts take the correct decisions. For instance, the “No direct financial benefit” guideline: even if there are ads, if there are no charges to download/see the video, there is no infringement.
Those guidelines, though, are just guidelines, thus are not compulsory and only apply for the Beijing region.
‘Piracy. It’s a Crime.’ – The criminalisation process of digital copyright infringement
The criminal enforcement directive seemed to be dead, but the Pirate Bay case sort of brought it back to life. Piracy is increasingly linked to theft, to organised crime, to terrorism. Notwithstanding, research shows that online piracy is not likely to be linked with organised crime or terrorism. We cannot even find what is the methodology used to calculate the (real) losses for the industry of counterfeit material or how damaging is piracy in general.
There is a need for re-assessment, and law-making on the basis of empirical evidence and concrete studies – not industry lobbying. The Hargreaves Review (2011) states that
in the case of copyright policy, there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy outcomes.
7th Internet, Law and Politics Conference (2011)
If you need to cite this article in a formal way (i.e. for bibliographical purposes) I dare suggest:
Peña-López, I. (2011) “7th Internet, Law and Politics Congress (V). Intellectual Property Rights on the Internet” In ICTlogy,
#94, July 2011. Barcelona: ICTlogy.
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