Abstract: Despite the crucial importance of ensuring a just balance of interests within intellectual property law, a well ‘thought-out’ IP clause is still lacking in an overwhelming majority of human rights instruments. Building upon the results of an empirical study of about 200 national constitutions and several leading international and European treaties on human rights, this chapter examines how the constitutional framework is guiding the understanding and shape of IP law. In particular, it examines different model provisions for IP included in human rights instruments and puts them in the context of selected judicial practice, general principles of legal interpretation and ‘quasi-constitutional’ rules of IP protection.
Abstract: In order to fight mass-scale copyright infringements on the Internet, numerous legislative initiatives have recently been proposed or adopted with the aim to improve the enforcement of copyright in the online world. This article evaluates the relevance of these enforcement strategies in the context of the unauthorised uses of copyrighted works by means of peer-to-peer file sharing or streaming. The dubious efficiency of some of the solutions adopted at national level, such as the implementation of graduate-response systems or the criminalisation of end users, is questioning the systematic increase of penalties as an appropriate reaction to address the problem of the general disrespect for copyright on the Internet. It rather calls for a new approach through the cautious legalisation of certain practices, in order to ensure that the copyright system continues to fulfil its basic function: the protection of creators and the encouragement of creativity.
Earlier this week, the European Copyright Society has issued its response to the Public consultation on the review of the EU copyright rules of the European Commission. The response is available here.
The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law. Its members are renowned scholars and academics from various countries of Europe, seeking to promote their views of the overall public interest regarding the construction of European Copyright law.
Abstract: The Anti-Counterfeiting Trade Agreement (ACTA) and the secrecy of its negotiation process have given rise to widespread speculation on the content and the objectives of the Agreement, leading to the development of considerable mistrust among the general public. This article concentrates on one of the most problematic aspects of the Agreement: the provisions on criminal enforcement. It will first show why criminal enforcement of intellectual property is generally a problematic issue, especially in the European Union, and then briefly try to demonstrate why ACTA is not the right answer in this regard, since criminal enforcement provisions clearly need a differentiated approach, an approach which is not reflected in the Agreement.