Law and Information

My colleague and friend Dr Ian Brown, co-leader of the EUCD best practice project (check out the wiki and the project report), has posted a great article written for the EDRI-gram on the International Intellectual Property Alliance’s (IIPA) recent recommendations to the US Trade Representative’s 2007 review of global copyright laws. Ian concludes:

It is not surprising that US companies lobby to change global laws that would increase their profits. On past performance, the US government is likely to take careful note of their recommendations. But European nations should robustly defend their right to shape copyright policy to meet the needs of their own citizens, and not just those of large copyright holders.

I hope the EUCD best practice project mentioned above and similar initiatives support European policy makers in identifying the leeway they have under the WIPO Internet Treaties and the EUCD when shaping their copyright and DRM frameworks.

Read this – no comments from my side… (find an inofficial English translation of the draft implementation here.) As my friend Mike puts it: Good luck, Switzerland, on the negotiations of the bilateral trade agreement with the U.S.

INTERNATIONAL INTELLECTUAL PROPERTY ALLIANCE 2005 SPECIAL 301 SPECIAL MENTION SWITZERLAND

The Federal Copyright Act of 9 October 1992 as amended is currently undergoing further revision in order to implement the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) into Swiss law. IIPA is concerned with the way in which the two treaties are being implemented in the country. The Swiss Federal Institute for Intellectual Property continues to delay the implementation of the WIPO Copyright Treaties. In September 2004 a draft implementation was released, but is problematic in several respects: it has an overly broad private copying exception (indeed the current exception is problematic and certain groups argue that downloading infringing copies of copyright works from peer-to-peer (P2P) networks is legal in Switzerland); inadequate protection of technological measures (including over-broad personal use exemptions); and burdens on rightholders employing technological measures (including labeling obligations).

Furthermore, the Swiss government should seek to make the use of P2P networks for copyright infringement more difficult. SAFE (the Swiss Anti-Piracy Federation) continues to investigate portal sites, which are generally hosted by foreign providers. In March 2004, police (cooperating with SAFE and the German Anti-Piracy organization [GVU]) raided the home of the Swiss creator of an eDonkey portal offering an extensive number of links to movies, cartoons, PC and console games, software, books and pornography (averaging 220,000 visitors per day). This individual will be prosecuted for copyright offenses, the first such prosecution against the creator of a portal for a P2P network in Switzerland.

The Berkman Center’s Digital Media Project team has released one new and one updated report on the current state of the digital media ecosystem. One report is an update of the 2003 foundational White Paper by the Berkman Center and GartnerG2 on Copyright Law in a Post-Napster World. The updated edition includes the following:

• Updated business model section that includes new survey data and an overview of “legitimate” P2P stores like Wippit and Weed (Chapter 2)
• Updated and expanded analysis of legal cases and decisions relevant in the digital media space, including a brief discussion of Grokster and RIAA v. Verizon (Chapter 3)
• Revised subsection on international enforcement issues like jurisdictional questions among nations (Chapter 3)
• Updated section on regulatory developments like provisions related to the broadcast flag and digital radio, as well as proposed laws in the U.S. such as the INDUCE Act (Chapter 4)
• Expanded chapter on DRM systems including new standards, challenges, and policy issues related to the use of DRM (Chapter 5)
• Updated outlook for the future (Chapter 6)

In addition, we’ve written an International Supplement to the White Paper, which examines the transition from analog/offline to digital/online media from an international legal perspective. Here’s the abstract/overview of the Supplement:

Comments, as always, are most welcome.

Michael Geist notes in his weekly Toronto Star Law Bytes column (free registration required) that decades of international IP agreements “have failed to balance the interests of the developed and developing worlds and have led to annual outflows of billions of dollars from the developing world to the developed world.” As to copyright law in particular, Geist concludes that the WIPO’s development agenda provides “the first chance in years to fashion a global intellectual property policy that helps, rather than hinders, the developing world.” Let’s make sure that Geist’s vision comes true.

BTW, a new Berkman report on copyright law and digital media in Europe and the Asia/Pacific region will be released here within the next few days, togehter with an updated version of the foundational GartnerG2/Berkman Center White Paper “Copyright and Digital Media in a Post-Napster World.”

At the Berkman Center, we released today a paper on the current state of implementation of the EU Copyright Directive (EUCD), with emphasis on the transposition of the provisions on the legal protection of technological measures sections (such as encryption, digital watermarking, copy-control technologies, and the like.) In this study, we have taken a closer look at the relevant definitions, exemptions, sanctions and remedies associated with the national anti-circumvention laws. What are the key findings?

First, our analysis reveals that uncertainty over the scope of provisions aimed at protecting technological measures as well as the definition of crucial terms (such as ‘effective measures’) persists – even at a rather basic level. The question, for instance, as to what extent access control mechanisms fall under the definition of technological protection measures and, as a consequence, are protected by the anti-circumvention provisions has been contested.

Second, the study explores different ways in which national implementations have addressed the problem of privately applied technological protection measures vis-�-vis the traditional exceptions to copyright within the framework as laid down in the EUCD. As demonstrated in the paper, incumbent member states have not made broad use of the possibility to take measures ensuring that private copying exceptions will survive technological protection measures, and have gone different paths as far as the implementation of the public policy exception as set forth by the EUCD are concerned.

Third, a brief analysis of some approaches to sanctions and remedies taken by EU member states suggests that member states have interpreted the relevant provisions of the EUCD – calling for “appropriate sanctions and remedies” – in different ways. While all countries impose civil sanctions in the case of a violation of anti-circumvention provisions, differences remain with regard to criminal sanctions. The regimes range from significant criminal sentences for both acts of circumvention and trafficking in circumvention devices and services to copyright laws that stipulate modest fines, but no imprisonment in the case of a violation of the anti-circumvention provisions.

The project website also provides an interactive chart with a resource page containing international and national legislation on technological protection measures with focus on the relevant laws of EU member states for further research. We intend to update the site as soon as new anti-circumvention provisions have been enacted in a EU member state.

Over the past few months, I’ve been working on a couple of Berkman papers on developments in international and national copyright laws as far as digital media is concerned. I’ve been looking at U.S. law, at the legislative and regulatory developments in Europe (both EU legislation and national implementations of EU law), and at selected jurisdictions in the Asia-Pacific region such as Australia, Singapore, Malaysia, China, Japan, and South Korea. The papers provide a rough overview of the copyright laws and regulations in these countries, and analyze the different paths and stages of evolution of the international copyright ecosystem. The reports also describe the current state of digital media law in action.

Currently, I’m working on one of the reports’ conclusion section. As always, it’s quite a challenge to come up with “crispy” takeaway points. Well, here’s the way I intend to frame it; any feedback is very much appreciated.

It seems to me that one might roughly distinguish between three stages of development of copyright protection across the world:

1) Copyright laws at a very nascent stage. Copyright laws of countries in this category do either not exist at all, or have not incorporated the relevant protection levels set forth by the Berne Convention or TRIPS.

2) Copyright (IP) laws that are TRIPS compliant.

3) Copyright laws that have incorporated the WIPO treaties or are otherwise in compliance with WCT/WPPT.

These categories, in turn, say something important about the driving forces of copyright legislation across the globe. By and large, TRIPS has become the major force aimed at creating a level playing field of IP protection in many parts of the world. It strikes me that TRIPS, today, is particularly important in the transition from “nascent” to “well-developed” copyright regimes. The implementation of the WIPO treaties, in contrast, can be understood as the “fine-tuning” of copyright legislation – from “well-developed” to “advanced”, so to speak. One other important driving force hasn’t been mentioned here, but is discussed in the papers: bilateral free trade agreements (such as the AUSFTA and the USSFTA.)

The second question is: What are the effects of the international treaties and bilateral trade agreements on copyright legislation? Well, it’s quite obvious: The international treaty system works as a leveler and harmonizes the fundamental issues and corner stones of a copyright system. However, the Berkman papers will also demonstrate that significant differences among national laws remain. Even if we look at countries that are in compliance with the WIPO treaties, we find different approaches, especially with regard to definitions (e.g. of technological protection measures), exceptions (e.g. private copying), and sanctions/remedies against infringements. Another addendum is necessary: The digital media landscape across the globe – even the most “advanced” – also varies significantly when it comes to the “law in action.” The reasons are manifold and include huge differences in civil and criminal procedure laws as well as, of course, economic, cultural, historical… differences in law enforcement practices. However, the papers will also illustrate that law enforcement – as far as online piracy is concerned – is increasingly an internationally orchestrated multi-actor (rightholders, rights organizations, governmental task-forces, etc.) effort.

The third question I’d like to touch upon is: what are the effects of international copyright frameworks and corresponding national legislation on any given information environment? Here, one might want to distinguish between four stakeholders: Users/consumers, rightholders, businesses, and policy-makers. Unfortunately, I do not have much empirical data to support potential claims about the effects of legislative developments on each category. However, anecdotal evidence suggests certain trends. In essence, one might argue that the “most advanced” copyright systems have a bias towards protection of rightholders and businesses at the cost of users. Especially the review of current case law in European jurisdictions suggests that this trend is not only a U.S. phenomenon, but structural in nature. (To be sure: the interactions among contract and copyright law, technology, and business models are rather complicated. You’ll find an analysis of the interplay between these elements in our iTunes case study.) One final point with regard to policy-makers: The papers will demonstrate that policy-makers – at the national level – still have some leeway in the way they design their copyright ecosystem, despite international harmonization.

Against this backdrop, my research interest moves towards “best practice models” in the digital age. Stay tuned. (BTW, I’ll link to the above mentioned papers as soon as they become available.)

In the aftermath of the Geneva Declaration, the World Intellectual Property Organization (WIPO) General Assembly has decided to advance a “development agenda” that acknowledges the need for balance in worldwide policy on IP rights. As our colleagues at EFF have observed:

“In the past, WIPO has been roundly resistant to attempts to balance the interests of copyright holders, who make up the majority of WIPO participants, and the public, which had never been represented at the meetings. Previous efforts to get WIPO to hold one-day information sessions on alternatives to copyright — such as the public-domain human genome database, the GPL software license that underpins GNU/Linux, and the Creative Commons project’s millions of ‘some rights reserved’ books, movies, songs, and images — has been firmly rebuffed, with major WIPO nations applying enormous pressure to see to it that the issue was never brought to the table.

Now, in the wake of the ‘Geneva Declaration’ — a document calling on WIPO to work in the interest of all of its stakeholders, including the public — WIPO’s General Assembly has adopted a ‘development agenda,’ a kind of lens of public-interest considerations through which the treaty-body will view all future activities.”
A comprehensive collection of materials and proposals can be found here.