Archive | Intellectual Property

TTIP might kill EU copyright reform

There is an obvious need for copyright reform. It is necessary in order to keep culture alive, dynamic and vigorous. And it is necessary if we want to keep the Internet free and open. (Read more about these specific issues here. »)

The EU is trying to get to grips with copyright in order to have a single, up to date set of rules for the entire European market. At the same time copyright holders, like the music- and film industry, would like to hold on to present rules–created to protect an old, pre-digital business model.

At the moment, the copyright industry puts its hope to the EU-US trade agreement (TTIP), being negotiated right now. The negotiations are secret. But we know that TTIP will contain a chapter on “intellectual property”. This might be yet another attempt to curb the freedom of the internet, in order to clamp down on illegal file sharing and other digital IP infringements. But if it is, chances are that TTIP will meet the same fate as the fallen ACTA agreement.

But it doesn’t have to be that obvious.

TTIP can also build on present copyright legislation in such a way that it will be more or less impossible to change these laws in the future, without breaking this binding trade agreement.

In fact, there is a highly controversial instrument in TTIP that might be used to kill all attempts to reform copyright legislation in the future. This is the article on investor-state dispute settlement (ISDS).

The idea behind ISDS is that a company in the US can take the EU or e.g. Denmark to court–if there are to be any new laws that might reduce that companys present (or future) profits. Well not take to court, actually. It’s more like a semi-private settlement institute, that can fine countries for billions of dollars in damages.

Now, imagine if the EU would like to reform copyright. European politicians might want to shorten the absurdly long protection time to, let’s say, 50 years. (If they could extend it, they should also be able to shorten it. Especially as copyright is an “asset” not found in nature, but a brainchild of politicians.) They might want to make exceptions for non-commercial sampling. They might want to make out of print classical literature or orphan works available to the public in digital form. They might want to step down the hunt for non-commercial file sharing. Or they might require that to receive copyright protection, the works in question must be registered.

This is the kind of things that ISDS is designed to stop. Either the EU would have to drop the reforms–or pay billions in damage.

(To add to the absurdity of this: In the example above only American companies would receive damage, not domestic European ones.)

So, yes: The TTIP might be used to kill an EU copyright reform. And Europe urgently need such a reform.

I might repeat myself, but I suggest that if the EU and the US would like to have this trade agreement approved–they should drop the IP chapter and ISDS. It might also be a good idea to open up the negotiations to democratic oversight, as these agreements have more or less the same effect as law.


Also read: EFF–EU-US Trade Negotiations Continue Shutting out the Public—When Will They Learn? »


The “right to be forgotten” is the lesser problem

Google has received tens of thousands of requests to remove links, after the European Court of Justices ruling on “the right to be forgotten”.

This is rightfully a much debated problem, as it is used to censor information and rewrite history.

But we should remember that Google also has been asked to remove half a billion links due to copyright claims.

This also ought to give rise to public debate–as it is a much more wide-ranging form of censorship. (And in some cases copyright claims are used to suppress free speech in the same way as the right to be forgotten.)



Intellectual property and trade agreements vs. a free and open internet

Enforcement of Intellectual Property Rights is often included in various international trade agreements.

Sometimes this is done in general terms, not making any distinction between e.g. patents, copyright, trademarks and geographical indications. Politicians just look at the supposed value of IP–and decide that they want to protect it. (A rather blunt approach.)

In other cases IP issues are very specific, like in the (rejected) ACTA agreement. In ACTA the text suggested “voluntary cooperation” between copyright holders and internet service providers (ISP:s) to curb online piracy. This would, had the agreement been approved, have led to ISP:s having to police the net. And to police the net, you need to inspect and analyze all internet traffic.

Both approaches are problematic. Especially as international trade agreements normally are negotiated by bureaucrats behind closed doors–in effect impossible to influence for the general public and our elected representatives. This is a serious problem, as these agreements often will have the same impact as laws.

Naturally, you must be able to distinguish between different sorts of IP.

And you must make sure that international trade agreements are in line with important legal principles–as mere conduit in the EU E-Commerce Directive, ensuring that internet service providers are not liable for the information transmitted.

The next international trade agreement that might try to enforce IP rights is the EU-US free trade agreement, TTIP.

Naturally, free trade as in free trade is commendable. And if the interested parties are serious about setting up a transatlantic area of free trade–they ought to go easy on the IP chapter (or leave it out all together).

Any new attempts to enforce certain IP rights by trade agreements will backfire the same way ACTA did.

Cato Institute on Intellectual Property in Trade Agreements »
The ACTA demon rises. Again. And again. And again… »
Electronic Commerce Directive (EU) »
Transatlantic Trade and Investment Partnership (TTIP) »



Using copyright to silence people

The Disruptive Communications Project runs an important and interesting piece about “jurisprudence-shoping”— by Georgetown adjunct professor Matt Schruers.

His point is that copyright law and its’ far reaching remedies “are so attractive that they attract plaintiffs from other areas of the law”. This leads to legal migration, where all sorts of legal conflicts are dealt with under laws written with a totally different purpose.

For instance copyright law is being used to silence people who ought to be protected by freedom of speech.

For me, the Nadia Plesner case springs to mind. This artist was sued under copyright law by the luxury brand Louis Vuitton for depicting an undernourished African child holding a designer handbag in her painting Darfurnica.

Read the Schruer piece here » (Via: Techdirt)



You are not allowed to remember certain things

The conflict between copyright holders and the internet seems to be a never ending story.

And, of course… Copyright is about restricting access to information. Internet is about making information available.

The copyright war has been fought in the world of physical objects. It has been fought in the digital world.

And it’s about to be fought in your mind.

Some copyright holders now forbid memorization of information.

Read the whole story here: Licensing Boards Think Studying For A Test Is Copyright Infringement, Forbid Memorization Of Material »



The ACTA demon rises. Again. And again. And again…

Two years ago European Parliament killed ACTA, the international Anti-Counterfeiting Trade Agreement.

The main reason was that ACTA promoted the concept that internet service providers (ISP:s) should police the internet to stop intellectual property infringements (i.e. illegal filesharing of music, film, games and software).

Such practice would be in conflict with the principle that ISP:s are not liable for what their customers (ordinary users) do when using their services. This principle is called “mere conduit” and is regulated in the EU E-Commerce Regulations of 2002.

In the same way the Post Office is not liable for what people send in the mail. This is a very reasonable principle.

If ISP:s where to police what is going on in their cables, they would have to inspect and scrutinize all internet traffic. (E.g. by deep packet inspections.) This would include everything we do online. Everything.

This would be a gigantic and very expensive task. And it would force ISP:s to set up extremely comprehensive terms and conditions for users.

And, of course, this would obstruct free flow of information and curb Internet freedom in an unacceptable way.

So it was a very good thing that the European Parliament killed ACTA. (After widespread public protests.)

But ACTA is not really dead. Every now and then the idea that ISP:s should police the Internet pops up. The intellectual property industry never fails to lobby for it.

The issue will be back on the agenda as the EU rewrites its package of copyright rules 2014-2019. (There might also be a revision of the EU E-Commerce Regulations.) And it seems to return in the Transatlantic Trade and Investment Partnership treaty, TTIP.

And right now Rupert Murdoch’s News Corporation wants to hold Australian ISP:s responsible for piracy.

This is an ongoing battle, maybe a never ending one. To kill ACTA was an important victory for a free and open Internet. But we must be aware that the IP industry has no intentions of giving up their lobby efforts to get various ACTA clones into legislation and international trade agreements.