22 November 2009

Data retention in Austria becomes even likelier


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Austria’s DerStandard informs that the data retention bill to amend the existing Austrian Telecommunications Act was in place. In a consultation procedure, the responsible minister Doris Bures has called upon the appraisal of the participants (eg regional authorities, chamber for commerce and industry, trade unions). She thereby vowed to apply “the highest standards under the rule of law” in drafting the bill.

Austria has not implemented the data retention directive yet, wherefore the European Commission threatened the government with the launch of infringement proceedings. Austrian politicians have used the data retention related set of problems in their last election campaign in 2008. For some period thereafter and, since the subject matter is highly controversial, no one appears willing to cease the delay in implementation.

Quite often, the enforcers of intellectual property rights have been viewed as the real beneficiaries of the data retention becoming a fact. Many of their lobbyists and legal representatives utilized the duration caused by the governmental delay in addressing the public and stating the necessity to access retained internet traffic data that evidences, for instance, illegal file sharing.  However and given an implementation, it is still unclear as to whether such enforcers shall have access to data so retained.

According to recent cases on file sharing, Austrian courts seem to opine that file sharers’ interest in the protection of their traffic and identity data outweighs the enforcers’ interests to access such data.

It is clear that the data retention could easily change the so established balance. I hope to soon have certainty on that.

13 September 2009

New Commission’s communication on enhancing the enforcement of intellectual property rights in the internal market


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The European Commission has published a new communication (COM 2009/467) to the Council, the Parliament and the Economic and Social Committee. In this communication the Commission acknowledges that the Union is the home of some very large and successful businesses in the world, who consider IPR to be amongst their most precious commercial possessions. The Commission further acknowledges that counterfeiting and piracy have a dramatic and damaging effect on business in Europe, wherefore certain measures Enforcement Directive, Customs Regulation) to better combat such counterfeiting and piracy were undertaken in the past.

The Commission

Seeks to Support and Enhance the Enforcement

by complementing the existing regulatory framework with non-legislative measures to make for more collaborative and focused enforcement across the Internal Market, in particular by:

  • supporting enforcement through an EU Counterfeiting and Piracy Observatory;
  • fostering administrative cooperation throughout the Internal Market;
  • facilitating voluntary arrangements between stakeholders.

The Commission suggests that the Observatory serve as the central resource for gathering, monitoring and reporting information and data related to all IPR infringements.

The Commission views s greater administrative cooperation in the field of IPR enforcement in the wider context of a partnership between the Commission and the Member States in implementing a borderless internal market.

Concerning its last point, arrangements between stakeholders, the Commission stresses that such solutions have to be

Compliant with the Existing Legal Framework

and should neither restrict in any way the fundamental rights of EU citizens, such as the freedom of expression and information, the right to privacy and the protection of personal data.

17 August 2009

Austrian Supreme Court holds that ISP is not obliged to provide copyright enforcer with file-sharing user’s data.


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Austria’s Die Presse reports about a recent decision of the Austrian Supreme Court (4 Ob 41/09x), according to which the

File-Sharing User’s Right of Privacy Has a Higher Priority

than a copyright enforcer’s right of information.

The Supreme Court had to deal with a case where a collecting society requested an ISP to disclose the personal data of a file-sharing user, whose IP address the collecting society had already obtained.

By so deciding

The Supreme Court Overruled the Lower Instances

which found the defendant ISP liable to provide the claimant collecting society with the requested information.

The decision is considered to have a certain signalling effect.

20 February 2009

How to kill a headless snake or about the prosecutor’s troubles with Pirate Bay


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Apoyando a The Pirate Bayphoto © 2009 Enrique Dans | more info (via: Wylio)

 

No doubt, copyright infringement is a serious thing. And whether Pirate Bay’s torrent technology infringes copyright in digital works is currently to be decided by a Swedish court.

No doubt, many of you know or are aware of Pirate Bay, but maybe also of other possibilities to download and upload digital works.
Unlike other technologies, the Pirate Bay does not host any content itself but acts as a search engine for video and audio information held on users’ computers.
Thus, it has so far successfully dodged lawsuits for a number of years, arguing that it is a not-for-profit site. Unlike Napster and other file-sharing sites like Kazaa (which both now sell music legitimately after being on the end of a string of lawsuits), the Pirate Bay does not have a central hub that can be closed down. Besides, the Pirate Bay does not have a typical hierarchy structure and this is about to become the prosecution’s nightmare.

As the present case has the potential to get a leading one in the course of (authorised) copyright infringement, I secretly support the prosecution and hope it will not give up quickly allowing also the court to derive a sound ruling on that serious thing!