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Liberalization  Intellectual Property Rights
 

Liberalization Intellectual Property Rights

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    Liberalization  Intellectual Property Rights Liberalization Intellectual Property Rights Presentation Transcript

    • Intellectual Property Rights Liberalization and Regulation in the Telecommunication sector Loukas Kipenis
    • Intellectual Property Rights
      • Intellectual property rights are rights granted to creators and owners of works that are the result of human intellectual creativity
      • Copyright, patents, trade marks, design rights, protection from passing off, and the protection of confidential information
      • the grant of protection is also in return for the creator making the work accessible to the general public.
      • Intellectual property law maintains a balance by granting the rights for a limited time. Some rights require registration, for example, patent right, whilst other rights accrue automatically upon the works creation as in copyright
    • Copyright Protection in the Internet
      • Prevention of File Transfer : Prevent undesired file transfer through host and application level traffic management
      • Detection of Copyrighted Material through File-level traffic management and prevent file transfers or prosecute infringers
      • Non-technical Approaches
    • Prevention of File Transfer
      • Blocking of IP addresses/ DNS names
      • Blocking of URLs
      • Blocking of TCP and UDP ports
      • Black- and Whitelisting of Protocols and Applications
      • Injection of Counterfeits
      • Exploitation of Vulnerabilities in File Sharing Software
    • Detection of Copyrighted Material
      • Fingerprinting
      • File Hash-Based Identification and Blacklisting
      • Signing of Transmitted Content with a Legally Binding Digital Signature
      • Watermarking and Investigation of Seeders
      • Monitoring of Copyright Infringements
      • Penaltization of Copyright Infringements
    • Non-Technical Solutions
      • Cultural Flat Rate
      • Digital Rights Management
      • Improved Offerings and Pricing Models
    • IPR in EU level (I)
      • Telecom packages amendments on IPR:
        • surfers should be free to access all types of legal content, legal applications and services of their choice without “unreasonable restrictions” such as reductions of speed or quality of their connection
        • in some cases it would be possible for an operator legally to restrict the access of a customer to a particular service
      • Debate on amendments on European Parliament (September 2008):
        • speakers believe that those amendments could endanger the principle of the neutrality of the Internet and that ISPs should not become the police of the Internet
        • Rebecca Harms (Germany), David Hammerstein (Spain) and Eva-Britt Svensson (Sweden) considered that the proposals would pave the way to France's graduated response
        • French presidency representative considered that the ISPs should have the obligation to inform its users about unlawful content
      • Text voted on September 24 th September, 2008
    • IPR in EU level (II)
      • European Commission Consultation on Digital Single Market for Creative Content Online
          • Opened in October 2009, closure on January 5 th 2010
          • Possible actions debated
            • Consumer Access
            • Commercial users’access
            • Protection of rightholders
          • Stakeholders reply in electronic format, a ll submissions will be published on the Commission’s website unless otherwise requested
      • Conference « 'Enforcement of Intellectual Property Rights' »
          • Organized by Swedish presidency, December 15-16, 2009, in Stockholm
          • enhance understanding, respect and enforcement of intellectual property rights
          • bringing up legislation as well as other measures, such as co-operation between right holders
          • Leading experts in the field will exchange points of view on meeting the challenges of efficient and well-balanced enforcement of IPR
    • Legislation in France (I)
      • Three-Strikes Law: Creation and Internet law (loi favorisant la diffusion et la protection de la création sur Internet)
      • Government Agency constituted for the law: HADOPI ( Haute Autorité pour la Diffusion des Oeuvres et de la Protection des droits sur l'Internet )
      • 3 strike procedure includes
          • Email sent to connection owner
          • Certified email sent with similar info
          • ISP is required to suspend internet connection for 2 months to 1 year
    • Legislation in France (II)
      • Presented and adopted by Senate on October, 2008
      • Amended and adopted by National Assembly, April 2009
      • Common text formulated by commission constituted by Senate and National Assembly members
      • Adopted in Senate but not in National Assembly
      • New defeat for the bill in National Assembly, 29 April 2009
      • Adopted by National Assembly on May 12, and by Senate on May 13
      • French constitutional council declared the main part of the bill as unconstitutional, violating the 1789 Declaration of the Rights of Man and of the Citizen and in particular the presumption of innocence, separation of powers and freedom of speech
    • Legislation in France (III)
      • Revamped bill (HADOPI 2) adopted by the Senate on 21 September and by the National Assembly on 22 September
      • The revamped bill allows for
          • a warning email
          • then a formal letter to infringers ( like in the previous version of the law )
          • As a "third strike", the HADOPI may send a file to a judge (not a court) who can suspend the subscription for a maximum of one year and, in case of massive downloads, a fine up to 300.000€ with a 2-year jail conviction. The judge's decisions can be subject to appeal
      • The bill strongly backed by N. Sarkozy, while a petition of 10,000 artists in support of the HADOPI law was published
      • On October 22, the French Constitutional Council gave its ruling about HADOPI 2, and decided that the bill is in conformity with the French Constitution
      • The high level authority (HADOPI) will be nominated in November and the first warning messages should be sent to alleged infringers at the beginning of 2010
    • Legislation in UK (I)
      • government’s intention is to highly reduce the illegal file-sharing about 70-80%
      • Government’s proposals are
        • to notify alleged infringers of rights (subject to reasonable levels of proof from rights-holders) that their conduct is unlawful; and
        • to collect anonymised information on serious repeat infringers (derived from their notification activities), to be made available to rights-holders together with personal details on receipt of a court order.
      • Other conditions proposed to be imposed to infringers
        • Blocking (site, IP, URL)
        • Protocol and port blocking
        • Bandwidth capping
        • Bandwidth shaping
        • Content identification and filtering
    • Legislation in UK (II)
      • Government set out a consultation for the proposed legislation
      • Interested parties are : industry, in particular ISPs and copyright holders such as music, film, publishing, software, TV, sports and games sectors. Consumers and consumer organisations will also have a close interest
      • I ssued on June 16, 2009 and closed on September 29, 2009
      • The participants respond by filling a Questionnaire and submitting it to Department for Business, Innovations and Skills.
    • Legislation in UK (III)
      • Replies on consultation questionnaire
        • Detica :
          • moving from “activity-based” measures (e.g. letter writing, traffic shaping) to “outcome-based ” ( each ISP should have the obligation to reduce illicit file sharing by an agreed percentage over a period of time ) .
          • impact assessment: ISP should measure the actual change in the behaviour of population, in the proposed period of 12 months
        • Intellect
          • agrees with the notification obligation
          • T here should be time limit for the notification from the date of the infringiment (no later than a year) and as closely as possible to the date of infringiment.
          • R easonable that the system allows for more than one warning to be sent before stronger action is taken.
          • sceptical towards the further measure of suspending subscribers' accounts.
          • adopting, encouraging and developing new business models that facilitate consumers’access to legal digital content
    • Legislation in Sweden (I)
      • IPRED (Intellectual Property Rights Enforcement Directive) law into effect since March 2009
      • The property rights holders can charge the infringers to a court, which will examine the evidence, including the extent of the file sharing, and decide whether the IP address will be released.
      • Then, the copyright holder can warn the infringer, sending a letter.
      • If the violation of the anti-piracy law goes on, the copyright holder can file a civil case against the infringer ISPs required to reveal infringers IPs to copyright holders
    • Legislation in Sweden (II)
      • The law takes effect just as a copyright infringement case against The Pirate Bay.
      • In response to the new law, Pirate Bay site recently launched a new service called IPREDator, which provides internet privacy, for 5 euros/month.
      • Sweden has strong tradition of peer-to-peer networks.
      • Citizens and especially young men, oppose IPRED law ( 79 percent of men aged 15 to 29 oppose IPRED according SvD newspaper)
      • the Antipiracy Agency, formed by the film and game industries to fight against Internet piracy, is in favour of the new law
    • Legislation in Sweden (III)
      • centre party in Sweden's ruling right alliance, which formulated the law, publicly debated its stricter aspects
      • the leading party in the opposing left alliance party, the Social Democrats, did the same
      • The Left and Green Parties in Sweden voted against the law, claiming that it endangers democratic and personal integrity, allowing large companies to act as police, collecting sensitive sensitive personal data
      • The introduction of the new anti-piracy law in Sweden resulted in a 30% internet traffic reduction just a day after the IPRED went live, while the legal digital music downloads doubled within a week of IPRED implementation [
    • Legislation in Sweden (IV)
      • The first ISP who was asked for IP address info, ePhone, refused to give up IP address of a file-sharer charged, by five Swedish publishers, of owning unauthorised ebooks
      • ePhone points out that
        • server required a password to access ( content was not publicly available and thus not copyright infringement )
        • not enough evidence of copyright infringement
        • giv ing over customers’ personal details violates article 8 of the European Convention of Human Rights ( guarantees the right to privacy )
      • Solna district court threw out ePhone appeal against the decision and ePhone must pay SEK 750,000
    • Controversies (I)
      • Knowledge is essential for development
      • Restrictive intellectual property rights legislation limits the the benefits of knowledge
      • Especially for developing countries, investing in sw and hw is not enough to improve their access to science and technology as these barriers are set
      • The greater the rights exercised by one generation of knowledge producers, the greater the cost to the next-generation producers — and the lower their incentives to further develop that knowledge.
    • Controversies (II)
      • the social norms towards downloading copyright-protected material did not change
      • The findings of a surveys conducted in Sweden show that despite the stronger anti-piracy legislation implemented, young Swedes towards piracy haven’t changed
      • most people don’t feel that they’re doing anything wrong when they sharing a copyright-protected material, mostly because the legal alternatives are hard to find, full of DRM or simply overpriced