Trial and error tackling online copyright infringement

Spotted this news item today in the Guardian today: UK policy makers are struggling to find workable policy solutions that can bridge gaps between the interests of rights holders, consumers, and internet service providers (ISPs).

 “Government scraps plan to block illegal filesharing websites”

 “A consultation document … said that ministers intend to do more work on what other measures can be pursued to tackle online copyright infringement in an effort to stop widespread music piracy, which is increasingly spreading to television and film…

[Cable recognised] that more needs to be done to crack down on illegal filesharing to protect the copyright holders, but nevertheless backed down on introducing site blocking legislation…”The basic philosophy is we do recognise the need for protection, but it has to be protection that’s proportionate to needs and based on evidence.”

Problems are often connected to the stick approach.  As well as legislation to allow the blocking of sites by ISPs there is the use of Digital Rights Management (DRM) software.  From TechEye.net, “Vince Cable: You can own your own property”:

“DRM is a means for companies to stop you from copying your own content, mostly due to fears of piracy, but it stops users from legitimately enjoying property that they have legally bought. You know, in shops”

The Guardian article highlighted this problem too, “We can’t say that businesses should embrace technology but say to consumers they can’t use technology for products they have paid for”

TechEye.net said the Digital Economy Act was much criticised, and rushed legislation can come back to haunt.  The issue of online copyright infringement is a moving target which needs careful consideration.  However, in the meantime rights holders must be frustrated with the amount of time this careful consideration is taking – they are the ones who are losing out financially in the meantime.  It seems highly probable that sticks are not going to be enough, not whilst the technology can move faster than the law making.  But are carrots enough, especially as building them into a profitable business model remains somewhat elusive?

ACTA draft leaked

Last Sunday the first draft of the digital enforcement chapter of the Anti-Counterfeiting Trade Agreement (ACTA) that governments have been secretly working on for the past year was leaked. And nobody knows (or can blame) who did it!

The Act goes far beyond counterfeiting by including sanctions of copyright infringements and increased liability for Internet Service Providers (ISPs); these provisions are designed to force ISPs to filter and block websites considered to aid copyright infringement.

Without entering once again into the debate of intellectual property rights v freedom of expression and data protection (see my blog of Friday 24 February), it is interesting to note that the measures proposed by developed countries’ decision makers can be a threat to those countries which do not have measures to protect consumers. We at least have the Data Protection Act and the European Human Rights Act, even though they can be bent to justify other agendas! Will more leaks happen? Or will more transparent and open dialogues eventually start? I am sure that these legislative proposals will be seen by the Chinese government in support to its current policy to monitor and block “unacceptable” websites – when China uses intermediaries to carry out the censorship on its behalf…

An interesting and informative document written by the European Digital Rights answers some of these questions here.

Post written by Francesca Re Manning, consultant to CAS-IP

Copyright infringement and filtering

A recent IPKat blog on the latest judgment of Sabam v Scarlet made me realise how complex the matter is and how easy to give misleading and inaccurate analysis can be. The case on which the European Court of Justice will give its assessment discusses whether it is legally and technically possible to require an Internet Service Provider (“ISP”) to filter and monitor internet users by checking what files they share via peer-to-peer, in particular files which are somehow identified as being unauthorised.

In deciding whether ISPs should be obliged to have filters, the Court needs to weigh a series of elements, including the protection of  data and freedom of rights. The problem with filters is that the ISP may have to collect and analyse IP addresses which, especially if static, may enable the website operator to see the IP address users’ personal data. This could identify him/her, and thus, if disclosed, breach the data protection requirements of the Data Protection Act. Therefore, this is a clear legal impediment to ISPs even if they wanted to monitor users’ internet traffic.

Blocking of websites is even more problematic, for example if you go to www.anonymizer.com and download the software, the ISP “sees” nothing. Likewise, if you go to Google DNS and route your connections via their DNS server, the ISP sees nothing. Therefore, the difficulties that an ISP has in relation to “filtering” are also of a technical nature, rather than just legal and ethical (copyright protection v rights to privacy).

Joe McNamee, Advocate to European Digital Rights, rightly summarized the issue

“the bottom line is that, if you are happy to ban encryption and happy for Internet access providers to check the contents of all of your communications (whenever the technology is available to do this) and happy to pay for the capital outlay to achieve this… then filtering may be possible (expensively) some day in the not too distant future. Otherwise, you’re opposed to filtering – unless you’re happy with filtering that doesn’t actually work. That’s really all there is to the issue. Things only get complicated when you start explaining why this is the case”.

This debate comes at an interesting time when Google (and US) are battling China’s ongoing monitoring and censoring regime, exposing the topic to the complexities of legal/technical/political and moral issues. Interesting!

Post written by Francesca Re Manning, consultant to CAS-IP

Enlarging the ‘territorial’ nature of IP rights for goods in transit

An article recently posted on IP Watch provokes a rather interesting discussion regarding the way IP rights have been enforced on goods that are in transit.  Also relevant to the discussion are the previous posts from the CAS-IP blog:
a) https://casipblog.wordpress.com/2009/02/10/ip-law-enforcement-in-eu-trips-up-shipment-of-generic-drug-from-india-to-brazil/; and
b) https://casipblog.wordpress.com/2009/03/18/patent-enforcement-the-doha-declaration/).

Some would also perhaps remember we had very similar events in agriculture on this, although not entirely the same: http://www.guardian.co.uk/science/2006/feb/22/gm.argentina

Monsanto, in the above case, tried to sue importers of Argentinean soy in the EU but was unsuccessful.  The growth of cases in the health sector now seems to indicate that generic drugs could be seized while on transit in the EU on the grounds of (potential) infringement of IP rights in the EU when the latter is not the final destination of those products.  This is very disturbing indeed.

One could argue that this amounts to enlarging the ‘territorial’ nature of IP rights, especially when no such rights exist in the country of final destination.  One can also imagine this could have implications for developing countries’ “freedom to operate”.

There is another point in the IP Watch article that I am unclear of as well.  According to Médecins Sans Frontières (MSF), the previous EU law seems to focus mainly on trademark issues (counterfeiting and piracy) instead of being all encompassing to include also patents.  I am not sure what the rationale is for the previous EU legislation, limited to only stopping counterfeit and pirated goods.  Should there be a difference and if so, why?  Perhaps an expert reader out there would be able to help me on this point and share some further comments on this news?

Post written by Guat Hong Teh, Legal Specialist for CAS-IP