Anomalies in Internet Law

Abstract

Modern information technology has brought a flood of new possibilities to communicate with other people anywhere in the world and to send each other music, videos, texts and pictures. Rather than just enjoying these new possibilities, many governments, companies and even individuals try to stop others from using these new technologies to their full potential. In response to these new technologies, national governments (as well as the EU) have introduced a confusing system of new rules. Not only are these new rules often ineffective and even contradictory, they in turn create problems. In order to protect intellectual property rights, e.g., they have accepted that the content providers could introduce new technologies that harm the property rights of consumers: the so-called Digital Rights Management systems. When it became apparent, however, that these technologies were not effective, more new rules were introduced, not to solve the problem of the legal protection of intellectual property rights, but to make it illegal to try to circumvent digital rights management techniques. In this paper, an attempt is made to identify the anomalies referred to here, to explain them and to suggest some new ways for governments, firms and individuals to deal with new technologies.

Notes

1 Article 2∶10 Civil Code.

2 H Gubby English Legal Terminology, p 50, Boom, The Hague, 2004.

3 A more explicit definition can be found, for example, in the US Code: ‘any form of representation or communication, including hand-bills, notices, or advertising, that contain letters, words, or pictorial representations’, USC Title 18, Part I, Chapter 65, § 1365.

4 Court Amsterdam, 18 February 1972, NJ 1972, 210.

5 For example HR 15 January 1991, NJ 1991, 668. Also: ‘a carrier of understandable characters, which render a thought’.

6 P Kleve Juridische iconen in de informatiemaatschappij (diss. 2004) (Legal Icons in the Information Age, with English summary), p 229, p 367, Sanders/Kluwer, Rotterdam/Deventer.

7 Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures.

8 Article 2 (1) and (2) Directive 1999/93/EC.

9 Article 5 (1)(a) Directive 1999/93/EC.

10 1 USC: ‘signature’ or ‘subscription’ includes a mark when the person making the same intended it as such.

11 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society.

12 Article 6 Directive 2001/29/EC.

13 Article 7 Directive 2001/29/EC.

14 P Kleve and F Kolff ‘MP3: the end of copyright as we know it’ in Proceedings of the IASTED International Conference Law and Technology (LawTech ‘99), Honolulu, IASTED, Calgary, 1999, pp 32–37.

15 Could the statement made by Apple and EMI, at the beginning of April 2007 that music could be sold on the Internet without technological protection measures be a sign of change?

16 http://www.maxx-xs.nl/

17 In Sony-Betamax judged as ‘time-shifting’.

18 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), consideration (18).

19 Wet computercriminaliteit (Computer Crime Act), Stb. 1993 nr. 33.

20 ‘Informatietechniek & strafrecht’ (Information technology and criminal law), the report of the Committee on Computer Criminality (chairman. H. Franken), Staatsuitgeverij, 1987.

21 Article 350a Criminal Law Code.

22 Article 138a(2) Criminal Law Code.

23 HR 3 December 1996, NJ 1997, 574.

24 Article 125i Criminal Procedural Law Code.

25 Article 125n Criminal Procedural Law Code.

26 Pres. Rb. Den Haag 24 October 1997, CR 1998–2, p 72. See also in Germany: BGH 15 November 2006, XII ZR 120/04.

27 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC.

28 European Court, 22 May 2003.

29 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

30 Article 4 Council Directive of 14 May 1991 on the legal protection of computer programs (91/250/EEC), Article 5 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases and Article 2 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society.

31 See OECD report DSTI/ICCP/IE(2004)12/FINAL.

32 For this model of man see M C Jensen and W H Meckling ‘The nature of man’, Journal of Applied Corporate Finance, Vol 7, No 2, pp 4–19, 1994.