New EU Council Resolution In The Making: 'Enhancing The E...

• emphasise the importance of protecting intellectual property rights, which are fundamental to promoting culture and diversity, and for drawing full benefit from the research, innovation and creative activity of European undertakings, especially SMEs, in order to support growth and jobs in the European Union and make Europe more competitive in the world;
• stress that the European Union has been called upon, in this respect, to continue its efforts to make the system for protecting intellectual property rights more efficient in order to more effectively combat infringements of intellectual property rights; and to
• reiterate its ambition to establish a consistent, high level of enforcement across the Internal Market, avoiding the creation of barriers to legitimate trade, and providing legal certainty while safeguarding consumers' and users' interests, thereby
• emphasising that in the field of copyright and related rights, piracy in cultural and creative goods is, damaging the legal marketing of the media, especially through the Internet,
• hampering the arrival of competitive business models of legal supply of cultural and creative content, calling into question the adequate remuneration of rightholders and holding back the dynamism of the European cultural industry that provides access to legal, diverse and high quality cultural supply.

Furthermore, the EU Commission is invited, in accordance with Article 18 of the IPRED1 Directive 2004/48/EC (requiring, three years after entry into force, each Member State to submit to the Commission a report on the implementation thereof), to analyse the application of that Directive, including an assessment of the effectiveness, of the measures taken and, if necessary, propose appropriate amendments to ensure a better protection of intellectual property rights, taking into account the rapidly developing digital environment.

What appears to be particularly striking in this context is the repeated mentioning of 'the Internet' and the 'digital environment' characterised as trouble-makers in a paper soon to be finalised on highest EU level.

Obviously there is a clear political expectation that the 'digital environment' is set to surrender to the Intellectual Property law as it is understood today. If this 'digital environment' refuses to behave as expected, massive sanctions on the basis of civil and criminal law are reserved for those entities who are not willing to comply. Of course, the present Document also 'considers' the ongoing international activities aimed at supporting the fight against counterfeiting and piracy, and, in square brackets “[]” due to lack of agreement on this clause, 'especially the negotiation on the Anti-counterfeiting Trade Agreement' also known as ACTA. As far as information has leaked out of the sphere of secrecy surrounding the negotiations of this treaty, subject-matter thereof is, at least in the first place, not fighting faked handbags or pharmaceuticals but to subdue the 'digital environment' to rigid standards of 20th century business models.

A further question not discussed in the above identified EU paper could, however, be as to weather or not there are reasons to believe that there should not only be a one-directional impact of Intellectual Property law on the 'digital environment' but, in a vice-versa mode, also a sensible feedback of the circumstances of modern digital life back to the shape of Intellectual Property law.

In his book 'The Public Domain' Mr James Boyle writes (p. 50f.):

“[...] It used to be relatively hard to violate an intellectual property right. The technologies of reproduction or the activities necessary to infringe were largely, though not entirely, industrial. Imagine someone walking up to you in 1950, handing you a book or a record or a movie reel, and saying 'Quick! Do something the law of intellectual property might forbid.' (This, I admit, is a scenario only likely to come to the mind of a person in my line of work.) You would have been hard-pressed to do so. Perhaps you could find a balky mimeograph machine, or press a reel-to-reel tape recorder into use. You might manage a single unauthorized showing of the movie - though to how many people? But triggering the law of intellectual property would be genuinely difficult. Like an antitank mine, it would not be triggered by the footsteps of individuals. It was reserved for bigger game.

This was no accident. The law of intellectual property placed its triggers at the point where commercial activity by competitors could undercut the exploitation of markets by the rights holder. Copying, performance, distribution - these were things done by other industrial entities who were in competition with the owner of the rights: other publishers, movie theaters, distributors, manufacturers. In practice, if not theory, the law was predominantly a form of horizontal industry regulation of unfair competition - made by the people in the affected industries for the people in the affected industries. The latter point is worth stressing. Congress would, and still does, literally hand over the lawmaking process to the industries involved, telling them to draft their intra-industry contract in the form of a law, and then to return to Congress to have it enacted. The public was not at the table, needless to say, and the assumption was that to the extent there was a public interest involved in intellectual property law, it was in making sure that the industries involved got their act together, so that the flow of new books and drugs and movies would continue. Members of the public, in other words, were generally thought of as passive consumers of finished products produced under a form of intraindustry regulation that rarely implicated any act that an ordinary person would want, or be able, to engage in.

In the world of the 1950s, these assumptions make some sense - though we might still disagree with the definition of the public interest. It was assumed by many that copyright need not and probably should not regulate private, non-commercial acts. The person who lends a book to a friend or takes a chapter into class is very different from the company with a printing press that chooses to reproduce ten thousand copies and sell them. The photocopier and the VCR make that distinction fuzzier, and the networked computer threatens to erase it altogether. [...]"

Let us take an example: Patents on computer-implemented inventions (CIIs) have been much debated during the past decade. When having a closer look at this issue we can differentiate two different domains of effects of such legislation:

• 'Industry' in the traditional sense: For example, car makers or producers of mobile phone handsets did not show any serious signs of being hampered by patents on CIIs. They usually have sufficient funds to maintain a patent department with well-trained staff.
• 'Active consumers': If they get into conflict with patents e.g. staged by traditional 'big Industry' players, they are likely to be victimised.

A recent demonstration of this problem might be seen in the debate concerning the H.264 video codec. The upcoming new HTML5 standard does not specify a particular codec but H.264 is already extremely widespread amongst PC users in form of the Adobe Flash plugin. There appears to be a huge demand to have H.264 included into the HTML5 implementation of Forefox. However, developers balk. The Mozilla Foundation supporting the development of the famous Firefox browser have argued that a proper H.264 patent license would cost them USD 5 million - money they don't have. And, organising a huge flow of money in conjunction with the distribution and use of free software would be - besides all of the usual ideological battlefields - be quite difficult.  And Adobe, master of the Flash standard, stands by and shrugs the shoulders.

The WIPO Standing Committee on the Law of Patents (SCP) has, on its Fourteenth Session held in Geneva from January 25 to 29, 2010, attempted to tackle this issue, refer e.g. to the Document SCP/14/7 submitted by the Brazil delegation. After the U.S. had, during the time span of the G.W. Bush Presidency, turned to preferring dealing with  plurilateral 'Coalitions of the Willing' over international bodies of the United Nations like WIPO, there is a general tension between discussions on WIPO level on the one hand - which have been widened in their scope under Mr. Gurry acting as Director General - and very rigid and tradtional attempts to form multilateral old-school coalitions like ACTA, on the other hand. The change in White House to president Obama apparently has not yet altered this perspective in principle.

With regard to the 'digital environment' as mentioned in the above-quoted EU Document I won't buy that the doctrine mentioned above and obviously underlying the ACTA process is sustainable. The closed approach of ACTA will probably more sooner than later discredit the entire field of Intellectual Property law and cause overshots of counter-reaction, putting decades of successful service to the society at risk.

In order to get some idea on how 'Active Consumers' perceive their 'digital environment' I recommend reading the special report on social networking in the January 30, 2010, issue of The Economist.