antonio pastor palomar - aibse.org · 2013-03-07 · at the present time, another bone of...

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International Business: Research, Teaching and Practice 2011 5(1)

BEYOND THE CRISIS:

INTERNATIONAL INSTRUMENTS ON DIGITAL PIRACY

Antonio Pastor Palomar

University Rey Juan Carlos Pº de los Artilleros s/n, Madrid, 28032 Spain

This paper highlights the importance of international law with respect to the international business and legal debates on the means to tackle digital piracy. Indeed, a number of multilateral instruments provide for a legal framework to cope with several controversial issues: the extent of government regulation and oversight, the power to block access to certain websites or the role to be played by an Internet Service Provider. However, there is an urgent need to perfect the legal framework and to adopt a specific international treaty, in order to improve global standards for the consistent enforcement of intellectual property rights (IPR). The international society could seize the current negotiations on the so-called Anti-Counterfeiting Trade Agreement (ACTA), but IPR enforcement measures should not be circumvented by trade negotiations. It is time for the ACTA negotiators to bear in mind that, in a world that is going digital, Internet pirated goods also challenge business models, innovation and creativity.

Key Words: Internet piracy, international law, innovation, knowledge economy, ACTA

E-mail: [email protected] Phone: 00-34-1-913799911; 00-34-1-699323708

Palomar Digital Piracy and International Law Practice

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INTRODUCTION

From an international policy perspective, there are many different threats to Internet freedom around the world. The U.S. Secretary of State envisions a digital world in which all people enjoy freedom of expression, freedom of worship, freedom from want and freedom from fear (Clinton, 2010). Clinton contends that “today, we find an urgent need to protect these freedoms on the digital frontiers of the 21st century” (Clinton, 2010). The context is broad and complex in a world that is going digital. We live in an era of cyberbattles. Particularly noteworthy are new targets for censorship (search engines, emails, social networks), cyberattacks originated from powerful States –though it is difficult to pinpoint conclusively the sources, plans of Google to digitize books and, last but not least, trade in pirated goods. They pose a threat to governments, challenge business models, as well as bring about considerable losses for the rights holders and legitimate business in the global economy. Digital goods, whether they are pirated or not, are a new type of good that challenges business models, but large-scale infringements of intellectual property rights (IPR) by means of digital piracy have a significant commercial impact which needs to be dealt with. To confront those problems, international cooperation is needed in various sector policies: innovation, creativity and protection of IPR. All three are pillars of global economic success and key components of the information society; therefore, they require a rules-based international system (Kruger, 2006). As a general principle, the advancement of the rule of law and good governance, at the national and international levels, is essential for the building of the knowledge economy (OECD, 2009). The rule of law and good governance are both interactive legal concepts. Governance could be understood as the process of decision-making and implementing decisions taken up by States, copyright holders, „netizens,‟ Internet Service Providers, and by all those actors involved in the problem of digital piracy. This paper is organized as follows: the first section discusses the role of international law under an interdisciplinary and selective approach to the topic, namely the European Union law and some State practice relating to Internet Service Providers. The second section deals with abstraction and fragmentation in the international legal framework and therefore analyses both factors as determinants of digital piracy. Finally, the Anti-Counterfeiting Trade Agreement (ACTA) is examined as the prospective international legal solution to the problem of enforcement of IPR. THE NEED FOR AN INTERDISCIPLINARY APPROACH: THE ROLE OF

INTERNATIONAL LAW

This article covers the piracy over the Internet of digital content, such as music, films and software, that does not involve the use of physical media. For the purposes of the present work and according to the EU Customs Regulation

International Business: Research, Teaching and Practice 2011 (5)1

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1383/2003 (Council Regulation, 2003) and the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights; WTO, 1994), digital piracy means the infringement of copyright or neighbouring rights. Conflict arises between freedom of expression and intellectual property rights. Internet freedom is not equivalent to the making available and copying of protected material on the Internet without the consent of the right owners. As the Council of the European Union put it, “online piracy is likely to do harm to the appropriate remuneration of copyright holders and holders of related rights (…) and it is a major factor holding back the development of the legal provision of cultural and creative content online” (Council of the EU, 2008). Consequently, the complex nature of digital piracy needs an interdisciplinary approach (Business, Economics, Law, Political Science and Sociology) and this paper is focused on the relevant international economic or human rights law instruments. The interdisciplinary perspective of digital piracy has been given very little thought in academic circles: most of the contributions are not scholarly works (Segura-Serrano, 2006). However, many surveys and studies have an institutional character, for instance, working papers and institutional norms of international organizations. Thus, it is necessary to extend the academic knowledge and understanding of this topic. Scholarly works are required to identify the applicable international law and to figure out how it should be construed, implemented and, eventually, drafted to keep a balance between the enforcement of IPR and new business models, innovation and creativity (Baker & Cunningham, 2006). To undertake the analysis of this issue, the scholar requires an appropriate methodology of research. A deductive process of reasoning from premises to conclusions does not correspond properly with the aim of assessing a large number of Internet piracy situations across national borders. Hence, on account of its practical utility and convenience of analysis, we will draw on an inductive approach to ascertain the rule of law when dealing with the most recent international state practices and judicial decisions. The approach is forward-looking, as we give special consideration to a new interpretation of the law as well as to the ACTA. Indeed, the purpose of this work is not to summarize the state of the field, but to discern some general principles, tendencies or common patterns of behavior reflected both in a wealth of state practices (mainly in the European Union and the US) and in case-law, which might lead to normative developments on how to enforce rights. These normative developments could be taken into account in the negotiation of the ACTA, the most recent international draft instrument thought to deal specifically with trade, digital piracy and the enforcement of IPR. Certainly, the ACTA is not only related to Internet piracy because it includes the trade in counterfeit and pirated goods from a general perspective.


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A EUROPEAN UNION PERSPECTIVE

What kinds of controls are to be compatible with Internet freedom? Should courts be empowered to block access to websites offering unauthorized downloads of music? This is a controversial topic because many „netizens‟ oppose too much government regulation and oversight. Spain can be considered to be a test case within the European Union because illegal downloading of movies went from 132 million a year to 350 million in a short period of time, between 2006 and 2008, (Media-Control Gfk, 2010). A new law provision was recently adopted in Spain according to which copyright owners would be able to file infringement complaints with an administrative commission within the country‟s Ministry of Culture, which would subsequently forward those complaints to courts. This is the Sustainable Economy Bill drafted in 2009 with a view to fighting against a deep-rooted cultural attitude about Internet piracy (UNESCO, 2010). Moreover, France set out an interesting and controversial legal framework based on the Law of June 12, 2009 (HADOPI I, 2009) and the Law of October 28, 2009 (HADOPI II, 2009). These complementary Laws provide for a graduated response to Internet piracy: first, an administrative authority (HADOPI) recommendation that an Internet user comply with IPR; then, if a repeated offense is suspected, HADOPI may issue a second recommendation; and third, if there is a violation of IPR, the offender‟s Internet access may be temporarily suspended, following a criminal procedure. Is this rigid measure the best way to crack down on digital pirates for illegal downloading?

The same debate is held within the European Parliament (EUP), which recently passed a Resolution on the transparency and state of play of the ACTA negotiations. In fact, the 2010 EUP Resolution states that “in order to respect fundamental rights, such as the right to freedom of expression and the right to privacy, while fully observing the principle of subsidiarity, the proposed agreement (ACTA) should not make it possible for any so-called „three strikes‟ procedures to be imposed (…) any agreement must include the stipulation that the closing-off an individual‟s Internet access shall be subject to prior examination by a court” (EUP, 2010). In the same vein, article 1 of Directive 2009/140/EC amends the Framework Directive as follows: “measures taken by Member States regarding end users‟ access to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community Law. Any of these measures (…) liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards (…) including effective judicial protection and due


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process” (EUP and EU Council, 2009). It is interesting to quote this paragraph of the institutional European Union Law because it points out very clearly an overriding standard prescribing that any government regulation or restriction imposed on the exercise of these fundamental rights should be in accordance with the relevant international human rights treaties. Finally, since one of the main purposes of this paper is the identification of the applicable law to the problem of digital piracy, it must be pointed out that the existing EU regulatory framework for electronic communications networks and services consists of five directives: Framework Directive 2002/21/EC (EUP and EU Council, 2002), Access Directive 2002/19/EC (EUP and EU Council, 2002), Authorization Directive 2002/20/EC (EUP and EU Council, 2002), Universal Service Directive 2002/22/EC (EUP and EU Council, 2002), and the Directive on privacy and electronic communications 2002/58/EC (EUP and EU Council 2002). And, the Regulation 1211/2009/EC (EUP and EU Council, 2009) established the BEREC (Body of European Regulators for Electronic Communications). Evidently, the EU and its Member States are bound by those international treaties having influence on the subject matter, as is stated later on.

STATE PRACTICE: THE RESPONSIBILITIES OF INTERNET SERVICE

PROVIDERS

At the present time, another bone of contention in the business and legal debate on digital piracy is whether an Internet Service Provider (ISP) should be considered responsible for the acts of their customers. A test case of a key strategy by major movie companies to combat online piracy was ruled recently by the Federal Court of Australia: Roadshow Films Pty Ltd v. iiNet Limited, 4 February 2010 (Federal Court of Australia, 2010). The judge stated that an Internet Service Provider could not be held accountable for illegal movie downloads by its customers. While iiNet knew its users violated copyrights, that argument did not mean the provider was authorizing those breaches, and it could not be held accountable for them. The judge added that iiNet did not have the power to stop illegal downloads. In fact, the provider asked users not to engage in illegal activity but also contended that it would not breach privacy and freedom of speech laws. The Charter of Fundamental Rights of the EU (Charter 2010) protects intellectual property (article 17.2) and stipulates that no one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation. Protection of personal data (article 8), freedom of expression and information (article 11), and the right to an effective remedy (article 47) complete the basic framework of rules. On 29 January 2008, the European Union Court of Justice (ECJ 2008) issued an interesting judgment in the case Promusicae v. Telefónica de España SAU, concerning the ISP‟s refusal to disclose to Promusicae–a non-profit-making


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organization acting on behalf of its members who are holders of intellectual property rights–personal data relating to use of the Internet by means of connections provided by Telefónica. A Spanish Court (Juzgado de lo Mercantil nº 5 de Madrid) referred to the EU Court a question for a preliminary ruling on whether Community law, in particular Directives 2000/31, 2001/29 and 2004/48, read in the light of articles 17 and 47 of the Charter of Fundamental Rights, must be interpreted as requiring Member States to lay down, in order to ensure effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings. The answer to the national court‟s question was that EU law does not require Member States to lay down, in such a situation, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, the EU Court added in paragraph 70 of the judgment that “EU law requires that, when transposing the relevant directives, Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the EU legal order, as well as in accordance with the principle of proportionality” (ECJ, 2009). Together with the iiNEt case, the Promusicae case helps to define the responsibility of ISP‟s regarding digital piracy, but it remains to be seen whether these cases will set an international legal precedent surrounding how much ISPs are required to do to prevent customers from downloading movies and other content illegally.

A CONTRIBUTING FACTOR OF DIGITAL PIRACY: ABSTRACTION AND

FRAGMENTATION IN THE LEGAL FRAMEWORK

It is well known that the international legal regime applicable to digital piracy must be identified, codified and developed. Certainly, this is a topic in regard to which the law has not yet been sufficiently developed in the practice of States. It is necessary to fill existing gaps in the international law due to the rapid technological developments, and precision must be given to abstract general principles whose practical application is not settled. The normative problem is not so much the lack of substantive international obligations as it is the identification of the appropriate international legal framework and the domestic enforcement thereof. The obligations are difficult to apply in practice, and there is a lack of harmony of global standards. The Universal Declaration of Human Rights of 10 December 1948, which summarizes the common values of UN Member States and constitutes a common standard of achievement for all peoples and all nations, provides for an outstanding principle in article 19, which reads as follows: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold


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opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” And article 29 adds that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (UNGA, 1948). These standards have been adopted in international human rights treaties like the International Covenant on Economic, Social and Cultural Rights of 1966, article 15, whereby the State Parties recognize the right of everyone to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.Moreover, the steps to be taken by the State Parties to the Covenant to achieve the full realization of this right include those necessary for the conservation, the development and the diffusion of science and culture. Besides, the International Covenant on Civil and Political Rights, article 17.1, sets out that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation” (UNGA, 1966). Further, it affirms that “everyone has the right to the protection of the law against such interference or attacks” (UNGA, 1966); and finally, article 19 recognizes the freedom of expression. As of January 2010, 160 States were parties to the ICESCR and 165 States to the ICCPR, including all the Member States of the EU and the U.S., meaning that the aforementioned obligations and norms constitute the general international law in this subject matter. Multiple international fora [the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), the United Nations Educational, Scientific and Cultural Organisation (UNESCO), the Organisation for Economic Cooperation and Development (OECD), the Council of Europe, the European Union (EU)] understand that piracy using new technologies is an important problem in many parts of the world. It‟s a discussion of universal human rights standards, namely moral rights. The Office of the United States Trade Representative, pursuant to Section 182 of the Trade Act of 1974, came to the same conclusion in the 2009 Special 301 Report, devoted to review the global state of intellectual property rights protection and enforcement (US Trade Representative, 2009). In a recent report of 9 October 2009, the European Commission had to underline a problem of political strategy relating to the attempts by the EU, the U.S. and other supporters of an effective IPR system, to constructively address enforcement problems in multilateral fora. But this strategy had been opposed by States like Argentina, Brazil, China or India, all of them large emerging economies


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(Commission of the EC, 2009). In fact, the different views of several groups of States are to be taken into account in the ACTA negotiations. Certainly, international law on digital piracy is fragmented in multiple instruments adopted within various multilateral fora (WIPO, WTO, UNESCO, OECD, EU). Besides, in the absence of uniform and specific provisions, there is a general public perception that digital piracy might not be an illicit activity. International law deficiencies may be a driver of global digital piracy, because national legislation differs , and pirates shift their activities to territories where legal regimes are weaker. Seen against this backdrop, it is difficult for States to effectively enforce the law. International law is not intended to replace the control exercised by competent state law-enforcement bodies, but to give international standards for enforcing intellectual property rights in order to fight more efficiently the growing problem of piracy. Obviously, the fragmented provisions on digital piracy set out in different international treaties are without prejudice to national or EU law. In sum, digital piracy has several driving factors related to imprecise regulation and to the special characteristic of the digital market (Kranenberg & Hogenbrink, 2003). Accordingly, in order to fight digital piracy, account should be taken of a number of interrelated issues: human rights, consumers‟ expectations, and the transformation of business models so as to promote the development of legal online offer.

WHAT KIND OF INTERNATIONAL STANDARDS DO WE NEED? ACTA AS A

SOLUTION

The international society needs to develop effective and feasible legal strategies in order to obtain a good economic impact of international legal innovations. The aforementioned principles and human rights obligations should not be construed to help harassing consumers but to facilitate digital businesses, technological innovation and creativity, as well as to protect IPR and consumers‟ rights (Landes & Posner, 1989). As a general principle, the Law consented to by States should be of benefit to the international society and, in this case, it should meet the needs of stakeholders and respond to the characteristics of a digital market: flexibility, immediacy and globality (OECD, 2009). Besides, a legal answer to the problem mus be feasible. It is well known that the Recording Industry Association of America announced, in December 2008, that it had decided to sue individual file sharers and to collaborate with ISPs aiming at stopping the transfer of copyrighted materials (Oberholzer-Gee & Strumpf, 2009). So far, in the EU the focus is more on conduct that significantly affects commercial interests, rather than on the activities of ordinary citizens, namely because detection of individual piracy is problematic in practice.


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In this sense, an argument can be made that some legal measures taken up in the U.S. to enforce copyrights were influential for the further technological development of digital products around the world, i.e., the Napster case (US Court of Appeals for the Ninth Circuit, 2001). Following Napster, other file-sharing companies were sued, for instance, MGM Studios, a case overturned by the Supreme Court (Supreme Court of the U.S., 2005). Napster was put out of business after the judicial decision, but users switched to second-generation peer-to-peer networks that eliminated centralized indices: eDonkey, FastTrac, Grokster, Limewire, etc. (Crews, 2001). The rights at issue were the owners‟ rights to distribute copies of the work to the public and to make reproductions of the work. The Court concluded that users of Napster did not have a fair use defense; they violated the distribution right when they uploaded music files and the reproduction right when they downloaded the files as copies in their own computer systems. Nonetheless, the company was found liable on two counts: contributory infringement (Napster, by its conduct, knowingly encourages and assists the infringement of plaintiffs‟ copyrights) and vicarious copyright infringement (Napster had the ability to supervise the infringing activity because it retained the right to control access to its system and had a direct financial interest in such activities; U.S. Court of Appeals for the Ninth Circuit, 2001). U.S. Copyright law, Title 17 of the US CODE, the No Electronic Theft Act of 1997, and the Digital Millennium Copyright Act of 1998, distinguishes direct infringement, contributory infringement and vicarious liability (Circular 92, 2009). It can be stated that the lines between these concepts are not clearly drawn in either the statutes or in the case law of the U.S. A bill to combat online infringement was proposed in the 111th session of the U.S. Congress (with the name „Combating Online Infringement and Counterfeits Act‟), but it has yet to be enacted (U.S. Congress Bill, 2010). It is remarkable that this bill allows for the U.S. government to seize domain names and to direct ISPs to block certain sites. Against this backdrop (different legal approaches to the problem, political divisions among developed and developing States, patchy State practices, abstraction and fragmentation in the existing international law) there is an urgent need to adopt a specific and coherent international instrument on digital piracy. ACTA could be the instrument, provided that some requirements are taken into account. The first requirement would be to ascertain in the international field the notion of copying. Essentially, copying is shorthand for the infringing of any of the copyright owners‟ rights. Consequently, the requirements to present a case of digital piracy under international law are the following: first, to show ownership of the infringed material; second, to demonstrate copying attributed to users, webs or companies; finally, on the basis of a three step test, to reveal that the activity is not covered by any exception to copyright infringement.


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Ownership has to do with the determination that a certain product can be copyrighted, owned and administered by the author of the work. This is a matter of national legislation, to a great extent. Secondly, while most national legislation complies with international treaties‟ obligations on the exclusive rights of the copyright owner, the problem lies in differential national enforcement. Think of servers placed in States without enforceable intellectual property laws. Third, international treaties empower, but do not require, States to provide exceptions to the rights of the copyright owner. For instance, the Berne Convention for the protection of literary and artistic works, identifies some particular activities (political speeches, legal proceedings, etc…). Those exceptions must satisfy the „three step test‟ set out in article 9.2 of the Berne Convention art. 9 (WIPO, 1886), namely that the acts permitted are limited to certain special cases, do not conflict with the normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the copyright owner. The national laws contain exceptions like fair dealing, fair use, private or domestic use, incidental or temporary copies. In 2007 the EU together with some WTO members began work on a new international agreement, ACTA, which would deal with digital piracy issues. The 11th and final round of negotiations was concluded in Tokyo on October 2, 2010. The objective with ACTA is to have a new multilateral treaty improving global standards for the enforcement of IPR to more effectively combat trade in counterfeit and pirated goods. The consolidated draft text of ACTA is dated the second of October 2010. It includes new provisions on best practices and the enforcement of IPR, namely articles on civil, criminal and customs measures (ACTA Draft, 2010). A second requirement for having a good ACTA agreement is set out in its text: Section 5 devoted to IPR in the digital environment. Specifically, article 2.18.1 states the availability under the internal law of States of different enforcement procedures so as to permit effective action against an act of intellectual property rights infringement (ACTA Draft, 2010). The procedures must be implemented “in a manner that avoids the creation of barriers to legitimate activity and preserves fundamental principles such as freedom of expression, fair process and privacy,” according to art. 2.18.2 (ACTA Draft, 2010). This overriding provision is in the right direction, as seen supra, because it embraces innovation and creativity as well as fundamental rights. Also, there is an important norm in article 2.18.4 prescribing that each State “may provide its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of infringement of at least trademark and copyrights or related rights and where such information is being sought for the purpose of protecting or enforcing at least the right holder‟s trademark and copyright or related rights” (ACTA Draft, 2010). It can be understood that, in


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principle, this clause safeguards the role of service providers and respects the rule of law, because to disclose the information required, the right holder must file “a sufficient claim.” However, what is a sufficient claim of infringement? There is much room for legal interpretation. Paragraph 5 of the same article adds that “each party shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights in, and that restrict acts in respect of, their works, performances and phonograms, which are not authorized by the authors, the performers of the producers of phonograms concerned or permitted by law” (ACTA Draft, 2010). This is an interesting provision, completed by footnote 14, because it seems that ACTA permits certain forms of use of works. These provisions are similar to the TRIPS Agreement standards and therefore are consistent with article 1.1 of ACTA which states that “nothing in this Agreement shall derogate from any obligation of a Party with respect to any other Party under existing agreements, including TRIPS” (ACTA Draft, 2010). It remains to be seen whether ACTA reached the lowest-common denominator between States with regard to digital piracy.

CONCLUSIONS

The complex nature of digital piracy needs an interdisciplinary approach. A number of multilateral instruments provide for a legal framework to cope with the main controversial issues of digital piracy, but this framework is abstract and fragmented. The purpose of this paper is to discern some general principles reflected in State practice (mainly in the European Union and the U.S.) and in case law, which might lead to normative developments on how to enforce rights. An overriding principle would be that any government regulation or restriction imposed on the exercise of these fundamental rights should be in accordance with the relevant international human rights treaties. The international society needs to develop effective and feasible legal strategies in order to obtain a good economic impact of international legal innovations. The ACTA draft text, adopted on October 2, 2010, reflects the outcome of the 11th round of negotiations but it has yet to be consented to by the negotiators.


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antonio pastor palomar - aibse.org · 2013-03-07 · at the present time, another bone of...

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