(2011) 8:1 SCRIPTed 1—119
Issue DOI: 10.2966/scrip.080111
- Deer III
Technologies in the hands of people, particularly creators of popular culture, including art, can be used for all manner of things not intended or anticipated by the technology-producer. In this case, the artist has reassembled typewriters. In doing so, he has not used any solder, glue, or welds, nor has he employed any components or means of fastening that do not come from typewriters. (Given the notional association between a deer and a llama, we at SCRIPTed thought this an appropriate cover image to celebrate the work of our longtime Technical Editor, Andres Guadamuz, who is author of the Technollama blog.)
- The Path Dependence of European Copyright
Stefan Larsson, pp.8-31
This article analyses the path dependence of European copyright. It shows how copyright is legally constructed, is harmonised through international treaties and European regulatory efforts in terms of InfoSoc Directive and the IPRED, and is also affected by the Data Retention Directive and the Telecommunications Reform package. Furthermore, the “secretly” negotiated ACTA agreement is discussed as it may impose stronger copyright on Member States. This means that the formulations and metaphors of how copyright is constructed and conceptualised contribute towards various lock-in effects as the dependence on the given path increases. The strong path dependence of European copyright law results in regulation that suffers from legitimacy issues. Copyright construction is a legal complex that in general is based on ideas of the conditions of an analogue world for distribution and production of copies, but it is armed with increasingly protective measures when faced with human conduct in the context of digital networks. To some extent, this most probably involves the expansion of the concepts and metaphors that once described only non-digital practice. The trend in European copyright is therefore strongly protectionist, through the expanding and strengthening of rights and their enforcement, and in that it is self-reinforcing, being locked into certain standards. The path dependence of European copyright serves as a strong argument for those who benefit from its preservation, signalling that there are power structures supporting the colonisation by this specific legal path of other legal paths that protect other values, such as consumer privacy or versions of integrity. There is a clear tendency in targeting the ISPs and other intermediaries in attempts to keep the copyright path intact. The development of European copyright, in its broad sense, not only re-builds the Internet in terms of traceability, but also law enforcement in terms of mass-surveillance. The digitalisation of society requires that new questions be asked as to how legal enforcement is or can be performed with regard to the mass-surveillance of the multitude of habits and secrets in our everyday lives. This means that there is a growing political responsibility for balancing privacy concerns and new and extreme possibilities for recording behaviour by means of data logs and digital supervision, all of which is part of the enforcement of copyright as a result of its strong path dependence. Thus, the path dependence of copyright leads to an imbalance of principal importance between the interests at stake. The imbalance lies in that a special interest is allowed to modify methods of legal enforcement from the reactive and particular to the pre-emptive and general. The special copyright interest gains at the expense of the privacy of everyone.
- Soft Law for the Internet, Lessons from International Law
Andrew Power and Oisín Tobin, pp.32-45
This article begins with the international legal environment and the differences between international law and domestic law. Although the state is still the central subject of international law, the sovereignty of the state has been under challenge since the latter part of the 20th century. Developments in international law have resulted in the opening of the legal system of the international community to entities beyond the state. The inclusion of non-state actors in a system of international governance may provide lessons for the governance of the international “virtual” environment. Much current thinking about Internet law is either of the “Grand Internet Treaty” variety, in which the online environment is a simple extension of the territory of a state, or sees the Internet as a libertarian “lawless” environment, unhindered by any restrictions. These views are examined and the nature of the law of the Internet considered in light of the lessons from international “soft” law.
- Should the English Legal System Adopt the US Law of Cyber-trespass?
Darren Read, pp.46-68
It has become quite common for old legal rules to be used to regulate new technologies. A key example of this is the resurrection of the rarely used trespass to chattels in the US to cover unauthorised access to computer and networks. However, this judicially constructed law has yet to be exported to other common law jurisdictions. This article considers whether the doctrine of “cyber-trespass” should be copied by the English legal system. Although the law of trespass to chattels is similar both sides of the Atlantic, there are certain underlying differences which are critical in the adoption of cyber-trespass, the most notable being the differences in the need for damage to be proved. Towards the end of 2008 there was a flurry of cases against Electronic Arts in the US courts over the use of the digital rights management system SecuROM, the first of these cases includes, amongst other things, that the use of SecuROM constitutes cyber-trespass. This goes beyond the previous uses of cyber-trespass as protecting networks from a very direct trespass to a trespass by means of a CD- or DVD-ROM. This newer use of cyber-trespass will be taken as the point of departure with the article using it to illustrate the suitability of cyber-trespass as a legal doctrine in England. To form a considered conclusion other legal avenues for regulating unauthorised computer and network access in England are discussed, most notably Section 3 of the Computer Misuse Act 1990.
- IP Address Allocation through the Lenses of Public Goods and Scarce Resources Theories
Rolf H. Weber and Ulrike I. Heinrich, pp.69-92
The current Internet Protocol (IP) addressing system, Internet Protocol version 4 (IPv4), is a resource with limitations. All IPv4 address blocks have now been allocated, posing a risk that not all IP address requests will be satisfied. As IP addresses may be considered public goods, it is important that they are allocated efficiently in order to comply in an equitable manner with the demands of all Internet participants. At the moment it is uncertain as to when, or even whether, Internet Protocol version 6 (IPv6) will replace IPv4. This article looks at the current system of IP address allocation and the risks and benefits of introducing an IP address transfer market in compliance with constitutional principles.
- Limiting the IPRs of Pharmaceutical Companies through EU Competition Law: The First Crack in the Wall
Dimitris Xenos, pp.93-98
The exclusivity granted to pharmaceutical companies through intellectual property rights (IPRs) may in certain circumstances run counter to the main objectives for which these rights are intended. EU competition law has stepped in to correct systemic failures that have adversely affected the competitiveness of the sector and the public interest of individuals in access to improved and affordable medicines. In the case of AstraZeneca v Commission, the General Court of the European Union found, for the first time, that a pharmaceutical company had abused its dominant position by (mis)using regulatory patent procedures to eliminate or restrict the market entry of competitors of generic medicines. To understand the way by which EU competition law intersects with IPRs and safeguards (patent regulations) requires an appreciation of the tensions (Part I) that underlie the expansive application of competition rules in the pharmaceutical sector (Parts II, III) as well as of the new policies that have emerged (Part IV).