Law and Information

A few days ago, the Commission of the European Communities presented a proposal for an EU-Directive on criminal measures aimed at ensuring the enforcement of IP rights along with a proposal for a Council Framework Decision to strengthen the criminal law framework to combat IP offences. The proposal seeks to reduce existing disparities between the EU member states’ systems of penalties (see also my comment here) that, according to the Commission, “make it difficult to combat the counterfeiting and piracy effectively.”

The proposal takes Article 61 of TRIPS, which criminalizes willful infringement on a commercial scale, as a starting place to take things a step further. Article 3 of the proposed Directive reads as follows:

According to Article 2 of the proposed Framework Decision, member states must punish such offences by a maximum sentence of at least four years’ imprisonment if the offence is committed under the aegis of a criminal organization or it carries a health or safety risk. The applicable maximum fine must be at least EUR 300.000 for cases involving criminal organizations or posing a risk to public health and safety, and EUR 100.000 in less serious cases. The proposal allows Member States to apply tougher penalties.

Personally, I agree with the draft Directive’s objective to fight organized IP crimes and infringements that bear risks for public health and safety. However, the much broader provision on “attempting, aiding or abetting” and “inciting” infringements is highly problematic and should be removed or at least significantly limited in scope. Under this standard, for instance, software programmers would run the risk to be criminalized if their software could be used for large-scale copyright infringements, especially vis-�-vis the broad “commercial scale” criterion which does not require financial motives, benefits, or profits.

The latest EDRI-gram, among other things, outlines some of the scary scenarios of this provision, and provides background information by looking back at the fight surrounding the earlier IP Enforcement Directive 2004/48/EC.

Wired News‘ Bruce Gain takes the Swedish amendments to the copyright act as a starting place for some comparative thoughts on the (legal) fight against P2P file-sharing in Europe. The Berkman Center’s Executive Director John Palfrey is quoted in this article along with other scholars and industry representatives. I was also invited to share some observations.

More here. Still waiting for the slip opinion. Update: Picker MobBlog has it.

One hour and ten minutes to go. Fingers crossed.

An update in English on the current revision of the Swiss Copyright Act is available here. It does not come as a surprise that the anti-circumvention provisions as well as the proposed levy on CD and DVD burners are contested. Note that iTunes – recently launched in Switzerland (see here and here) – is now used to call for thougher legal protection of DRM. I translated the draft anti-circumvention provisions here.

I’ve updated our EUCD collection of materials website. The following countries recently implemented the EUCD: Belgium, Cyprus, Portugal, and Sweden. Unfortunately, English translations are not in all cases available. Please let me know if you know about resources and/or other implementations. (Thanks to Marcella for pointers.)

Check out the Berkman Center’s website for reactions. It turns out that the entertainment industry still does not like the study. We’ve also made public our comments on the draft OECD report on digital music.

Find here a terrific report by the OECD on the digital music industry (pre-release.) The report includes, inter alia, references to Terry Fisher’s seminal book Promises to Keep as well as to the Berkman Center’s iTunes case study.

The report concludes that online music distribution will grow significantly over the next few years, will force the music industry to reconsider their business models, and will continue to pose regulatory challenges to governments. The study includes a detailed impact analysis of digital music distribution on artists, consumers, the record industry, and new intermediaries.

The OECD underlines the positive potential of digital distribution, both as a new business model and a cultural phenomenon. It’s report further concludes that Internet-based piracy may be reduced, if licensed file-sharing and new forms of superdistribution evolve.

The study, part of the OECD Project on Digital Broadband Content, is the outcome of work involving a wide range of stakeholders, including many governments. It’s among the first roadmaps exploring as to how public policy should be re-evaluated in this space.

The Berkman Center’s Digital Media Team was invited to comment on a draft version of this report. Today, we congratulate the study’s authors to a thorough multi-stakeholder analysis, written in a challenging environment.

Stay tuned.

Update: The OECD report is also featured in the latest edition of The Economist (subscription required.) See also WIRED News with reactions from IFPI.

Baker & McKenzie’s Premium Global E-Law Alert (June 7th edition, subscription required) reports:

Check out the program of the 5th Frankfurt Scientific Symposium, asking: “Is there any progress in alternative publishing? Problems of scholarly information economy.” The event takes place in Frankfurt on October 22 and 23, 2005. Impressive line-up of speakers. (Thanks to Sacha for the pointer.)