Why and how Intellectual Property is different in Cyberspace. Focussing on infringements of intellectual property online.

1. INTELLECTUAL PROPERTY IN
CYBERSPACE: HOW IT IS DIFFERENT
AND REGULATED IN THE EU
Prof. dr. Mindaugas Kiškis
mkiskis@mruni.eu / www.kiskis.eu

2. What is intellectual property (IP) in
cyberspace?
• Traditional forms of IP, which are
transacted (sold/purchased) in
cyberspace (tangible IP)
• Traditional forms of IP, which have
converted into electronic goods
(intangible IP)
• Entirely electronic forms of IP, which
are transacted
(sold/purchased/consumed) only in
cyberspace (intangible IP)

3. IP in cyberspace is more
susceptible to infringement and
infringement is more dangerous

4. Three tiers of IP infringement
in cyberspace

5. Infringements related to tangible IP
• Fake goods
• New platforms for
distribution (retail and
wholesale)

6. Infringements related to intangible IP
items
• Digital piracy
• Cyber espionage (theft of
know-how and commercial
secrets)
• Spoofing of legitimate sites
/ content (advertising fraud)
• Full digital transactions and
delivery

7. Novel infringements
• Intermediaries (abettors) of
infringement (Piratebay,
Megaupload)
• Online aggregation of illicit
goods/content/tools (e.g. pay
TV decrypting)
• Theft of virtual items in virtual
worlds

8. Why IP infringements in cyberspace
are more dangerous?
•Inherently cross-border
•Super scalable
•Very low cost

9. Responses
• Regulation / criminalization
• Education
• Training
• Are they sufficient ?

10. Regulation / criminalization
•Directive 2004/48/EC of 29 April 2004 on the
enforcement of intellectual property rights
•23 November 2001 Council of Europe
Convention on Cybercrime (effective 1 July 2004)
•Further initiatives on regulation have stalled

11. Convention on Cybercrime
• Article 10 – Offences related to infringements of copyright and related
rights
• Criminal liability for the infringement of copyright, where such acts are
committed wilfully, on a commercial scale and by means of a computer
system.
• Criminal liability for the infringement of related rights, where such acts are
committed wilfully, on a commercial scale and by means of a computer
system.
• Article 11 – Attempt and aiding or abetting
• Criminal liability for aiding or abetting the commission of any of the
offences established in accordance with Articles 2 through 10 with intent
that such offence be committed, when committed intentionally.

12. Legal issues
• Who may / shall initiate the enforcement?
• Commercial purpose / scale as a prerequisite of
infringement
• Legislation is vague and poorly drafted
• Not a serious crime = limited investigation means
• LT experience – omission of neighboring rights

13. Practical problems
• Difficult and expensive to track / investigate (multiple platforms,
cross-border)
• Difficult expensive enforcement (foreign parties unreachable)
• Non-cooperative users and intermediaries
• Robin Hood infringers (large damage, but no profit to infringer)
• Non-direct profit by perpetrators (advertising, backlinks,
domain/website resales)

14. Political problems
• Low priority (cost v. benefit; if no/little domestic IP is
infringed, then enforcement benefits mainly foreign
parties)
• Unhelpful public policies (copyright levies are based
on presumption of digital piracy – users feel entitled
to pirated content)

15. Technological problems
• Development of
sophistication and user-
friendliness of
anonymization/encryption
technologies
• Development of payment
options (premium SMS /
calls, cryptocurrencies)

16. Case examples
• Megaupload.com (abetting)
• Visosknygos.com (AllBooks)
(pirated digital book portal)
• Aludiski.com (indirect sales)

17. Thank you!
Prof. dr. Mindaugas Kiškis
mkiskis@mruni.eu / www.kiskis.eu