Prepared by Peter Berger, J.D. candidate at Duquesne University Law School, Pittsburgh, USA
With globalization showing no signs of slowing down, Europe continues to move toward a singular digital market, but there are unique challenges posed to accomplishing this.
The Budapest Convention, also known as the Cybercrime Convention of 2001, was ratified by the Council of Europe at a time where the technological boom that has since occurred was unforeseeable, and the Member States must now continue to contend with an ever-evolving digital market, as each strives to reduce barriers while simultaneously preventing the infringement of copyright holders’ rights. The Council ought to have a new Cybercrime convention to accommodate the current times we live in and the foreseeable technological advances of the next decade to accomplish its goal of a singular digital market that simultaneously protects copyrights and prevents online piracy. Of course, there are many snags that will inevitably be hit with the attempt to improve the Budapest Convention on Cybercrime. One of the main issues is that, with the Convention being from 2001, the currently ratified document is not equipped to keep up with cybercrime of the modern era. The biggest issue, though, is how to amend the document to fit the modern era without overstepping its legal competences. In the new digital age, one of the biggest issues states must contend with is the distribution of copyrighted material online without proper permission. Article 10 of the Budapest Convention on Cybercrime from the Council of Europe gives a general guideline, but nothing definitive.
Article 10 dictates that each Member State shall take necessary steps to enforce penalties for copyright infringement with respect to the Paris Act of 1971 ratifying the Bern Convention for the Protection of Liberty and Artistic Works as well as the WIPO Copyright Treaty. The Article is very broad but blanketed in its approach, leaving the task of managing copyright infringement and its penalties to the several Member States. However, when this Article was written, it is likely that this Article referred to the illegal sharing of images, and perhaps music, but today, it is extremely easy to access databases of movies, music, and all other forms of media through websites which offer “free streams” of pirated films and media. It may be time to revisit this Article in particular and at least have it provide suggestions for how to unify Europe’s blocking and copyright laws to help Europe move toward a singular digital market, which would bring in a stream of new revenue to all countries and benefit both consumers and Member States. The issue is also that the line can sometimes be blurred between what is freedom of expression and what is copyright infringement. With Europe striving to create a single digital market that transcends European borders, being able to have some form of blocking in place that is effective in differentiating between what is freedom of expression and what infringes intellectual property rights is essential.
Currently, in France, the government is experimenting with a “Three strikes and you’re out” system for those who download pirated material. This is a next-generation approach to copyright infringement issues, but perhaps is an effective measure to discourage copyright infringement while not suppressing the right of freedom of expression and hopefully will also not lead to the takedown of legitimate and legal material erroneously. Essentially, the “three strikes and you’re out” system that France is currently working on is, as the name implies, you are given three offenses of downloading pirated material, and then your Internet is shut off for a predetermined amount of time until you either pay a set fee or you agree to no longer download pirated materials. Once the fee is paid or the oath is signed, the Internet is turned back on for the violating user. This is a new approach, and certainly controversial, but it’s worth a look. Of course, the logistical problem is that this restricts a user’s access to the Internet, which is recognized now as a basic human right. If, however, the Council of Europe can revisit the Budapest convention, and test the waters as to how other Member States feel about France’s system, perhaps a new system of copyright protection can be implemented which will lead to better protection of Intellectual Property in the digital age, while simultaneously bringing more uniformity to European copyright laws and how infringements are handled, and subsequently opening digital content across borders to consumers. These are all lofty goals, but this may be an effective way to protect freedom of expression while pushing Europe to a singular digital market, opening borders and allowing more consumer freedoms and access to materials across borders.