Anti-piracy Laws and Guarantees of the Right of Information

Autora: Loreto Corredoira 

En los próximos días se celebra en Stanford el seminario Right to Information and Transparency in the Digital Age: Policy, Tools and Practicesy ha sido aceptada nuestra comunicación sobre cómo las leyes antipiratería están poniendo en riesgo las garantías del derecho a la información.

Aquí dejo el Abstract del artículo que aparecerá en inglés a lo largo del año 2013.

The field of "cyberlaw" has seen many recent developments, from WikiLeaks to Megaupload. Both of these operations, which appeared between 2010 and 2012, share three characteristics:

-         they require states to follow regulations established by foreign bodies, even though the states played no part in their formulation;

-         they are present throughout the world;

-         they are universal, i.e. they are intended for use by all people.

It is interesting to compare Megaupload and WikiLeads because the first is a paradigm in the fight against piracy of intellectual property rights (IPRs); the second is a paradigm in the conflict between security and official secrets on one hand and freedom of expression on the Internet on the other. This comparison is also relevant because the judiciary has interpreted the activities of both as violating publication rights.

Of all the legal challenges posed by the Internet today, protecting copyrighted content has the advantage that it enjoys a more stable and uniform legal framework that is applied around the world and that allows authorities to act beyond their borders to protect creators, artists and producers from unauthorized reproduction of their material. This uniform application, although by no means complete, was made possible by the Berne Convention (1886),[1] which in its successive modifications has allowed national authorities to litigate in other jurisdictions.

Our hypothesis is that IPRs are becoming the backbone of cyberlaw and Internet governance, which may be far too simplistic an approach.

What has changed in cyberlaw since 2010? We can assume, as Joanna Kulesza asserts, that cyberspace has become detached from real politics and social policies in sovereign states. 

What is at stake? Certainly the legal framework protecting IPRs, and in particular the challenge of grounding ICT law, cyberlaw or Internet governance--depending on the term used in the literature--in such a way that legitimate IPRs are protected without violating the rights of users or states and without impinging on the freedom of information on the Internet.

The responses to these challenges have been diverse. Some countries have passed specific laws that guarantee the application of adequate sanctions for copyright violations (France, Colombia, Spain, Brazil, US), and some international organizations have adjusted their political and legislative "agendas" to pay increased attention to the rights of publishers, producers and other IPR holders. The Agreement on Trade-Related Aspects of International Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) has become the guarantor of IPRs at the international level, just as the Berne Convention was during the 19th century.

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[1] Text available at http://www.wipo.int/treaties/en/ip/berne/