Book review: The copyright enforcement enigma

• Author: Willem Grosheide
• Position: Professor emeritus in Private law and Intellectual Property Law, Utrecht University
• Pages: 282-284

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282

Book Title: The Copyright Enforcement Enigma

Author: Monica Horten

Publisher: Palgrave Macmillan

Year of Publication: November 2011

No. of Pages:

Price: £60.00

ISBN 13: 9780230321717

ISBN: 0230321712

Country of Publication: UK

Format: Hardback

Price: £60.00

BOOK REVIEW: THE COPYRIGHT ENFORCEMENT ENIGMA

F.Willem Grosheide

Professor emeritus in Private law and Intellectual Property Law, Utrecht University

Attorney at law, Van Doorne Amsterdam

info@grosheide.nl

Until recently, copyright law and telecommunications law were considered as quite separate domains. Copyright

law, dating bac k to the 19

th

Century and being a part of intellectual property law general, mainly belongs to the

area of private law (e.g. civil law, commercial law, u nfair competition law). Telecommunications law, a

relatively recent legal area aiming at regulating electro nic communications, consists of a conglomerate of sector

specific regulation of a both private and public la w character (e.g. administrative law, competition law, criminal

law).

However, as society became more complex due to various economic and societal developments, formerly

separated domains of law have become functionally interconnected. This legal interconnection is evidenced for

instance by regulation of new forms of doing business (for example, franchising and licensing) and innovative

technical inventions (for e xample, television and computer software) or upco ming antagon ism between different

societal groups suc h as the entertainment industries and user’s interests groups. The indicated developments are

accompanied by actions of institutionalised and non-institutionalised pressure groups, striving for strengthening

their respective positions.

The legal respo nse to the recent clash bet ween the creative industries and t he telecommunications industries

in the European Union (EU) is a good illustration of what has been said so far. At iss ue is t he advent of a

technology known as peer-to-peer-file-sharing, which enabled customers to s wap content on the Internet without

respecting the related copyrights. In reaction, organisations of copyright holders made a calculated attempt b y

amending te lecommunications law to make broadband providers responsible for dealing with copyright

enforcement on the Internet. For, according to the creative industries , the then existing EU legal framework (e.g.

the Information Society Directive, the Cop yright Enforcement Directives, the E-Commerce Directive, the E-

Privacy Directive) together with the Co uncil of Europe’s sa feguarding of fundamental rights (e.g. the rights of

freedom of expression and fair trial), did not serve well enough their needs for protection.

The indicated state of affairs instigated or ganisations of copyright holders (particularly those in the

entertainment industries, such as recorded music labels and film studios) to start lobbying policy-makers for

alternative forms of enforcement. As a consequence, the previousl y separate disciplines o f copyright law and