As mentioned, the path dependence of European copyright serves as a strong argument for those who benefit from its conservation, and surely the link to a strong industry which are both protecting and voicing their rights are a major factor for the upholding of these rights.

Indeed, copyrights should be respected both in the “normal world” as well as on the Internet. The right holders should of course not lose their gain only because of weak regulations on the Internet. But I can understand the opposition to this kind of legislation too, where we often can see young people claiming their rights for freedom on Internet, and the right to shear and download files, documents, music and movies etc. This have also resulted in that there are several political parties, or so-called “pirate parties” have established to bring forward their arguments. Surely, the factors of why these individuals are against these rules are a very complex issue.

As the world becomes more globalized, and the Internet takes more ground, these issues become more problematic and the need for functioning regulatory systems is emerging. The current legislation is not fully following the schemes of Internet using in todays world. As well as it is claimed that it is interfering with Human Rights law.

I guess that one issue of this can be that the modern technique is developing much faster, which creates a conflict between the technical innovations and the law, where the law then have to follow up quickly behind. The legislative process may therefor not embrace the morals or values of the individuals. Internet is a global innovation, and needs an international regulatory system. However, it is very complex to govern over so many states, collect information, and create legislation that would suite all states fully, as well as it should be acceptable for all individuals concerning these matters. As well as the fact that all states have different cultural backgrounds, differing governmental institutions and legal systems may make a common, functioning legislation and regulatory system, hard to achieve in a short time.

Legislators and policy makers on the international, regional and national level are probably just in the beginning of managing the issues with copyright on the Internet.

Jessica, I totally agree with you that this is a huge problem. As you write, human rights are often seen as values instead of actual laws. I also hope that human rights will be given more respect in regard to its legal status, and not only as moral values in societies where they often are disrespected. More efforts to uphold such important and fundamental rights should be of prior interest of all states. Other interests, such as economic interests should (in my opinion) come second.

I agree in your view of how the path dependence of copyright is heading.

I actually finds it really interesting to considere the legislative forces between the European Copyright legislation and as always I am sceptic about power structures stearing legislation against the will of the people. Integrity is a term that we should not take lightly but still not missuse. Integrity in some way have to have a price, as for example through Swedish legislation where you can not videotape without an permission if the camera is not in use for hindering seriouse criminal offenses, as for example armed robbery. Shopliftingcameras are not allowed to be taped without permission from national institutions, I think it is “länsstyrelsen*? This would actually mean that integrity has a price in relation to the felony?

A price need to be set at an international, transnational level and interesting enough at a level that can be generally accepted? A challenge that EU meet in several other areas as well.

I agree with former commentators about the importance of human rights law and its value in relation to copyright law as well. This is something that needs to be developed with the utter most care.

I would disagree with the extent to which the current system of copyright protection can be ascribed to path dependence. There are several factors which suggest that rather than being a conservative movement, our understanding of copyright is evolving and that this is a product not of a path-dependant legal structure but instead simply one of increasing protection of power interests.

The first point I would make is that the common understanding of copyright has developed enormously since the digital revolution. Now-common social notions of copyright as “piracy” or “theft” are not in keeping with legal concepts, and have been manipulated not by legal structures but instead by corporate interests – quite frequently via the same media that is the target of infringement.

Secondly, there must in this case be conflicting sources of path dependence. Whilst the path dependence of legal conceptions of intellectual property are undoubtedly set as described in this article, there must also be social pressures, modes of usage, regulatory problems and industrial costs which operate as counter-pressures to the protectionist tendencies observed in this paper. In particular, I would point to the international situation to back this up.

Digital copyright protection isn’t so internationally standardised as the treaties suggest. The lack of serious state action on the basis of the WIPO treaties is one of the reasons that the ACTA treaty was brought in outside the normal framework. In terms of digital infringement of copyright, there is either little law or no serious enforcement in the majority of states worldwide. The USA and (most) EU states are the key enforcers, and the key actors in this regulatory push. They have so far struggled to produce change in other states – indicating that there is a serious lack of inertia in the absence of direct national corporate intervention, as opposed to a structurally self-reinforcing status quo.

Jessica: I think, a problem with many EU conventions is that they are very vague. So I think my point is that even though IPRED and DRD would in principle violate the human rights – They might not contradict with the principles stated in the EU convention of the human rights as the articles in the charter are so loosely specified. Thus, I would say that the principles mentioned in the convention are not efficiently enforced. For example in the article 8 covering the right to privacy it is stated that authority can interfere breaching the principle stated in the convention if its necessary for the democratic society, interest of national security, public safety or economic well-being of the country, prevention of disorder of crime, protection of health or morals or protection of freedoms or rights of others. Based on this it could be concluded that the protection of the privacy or human rights does not really seem to be a priority for the EU.

In regard to the comment of Filip who wrote that the concept of path dependency possibly could not be applied to legislative acts I would say that isn’t legislation quite path dependent at least in the democratic systems as I think in general the newly created law is not typically completely inconsistent with earlier trends in the legislation (however, there are exceptions) due to restrains placed on the legislative branch of the government. Thus, I think to some extent the concept of path dependency could be applied to legislative development as well. However, possibly legislative development within the autocratic systems is not as path dependent as in the democratic systems since they lack the legal restraints (separation of powers) and mechanisms of popular control, which are present in the democratic systems.

I found this topic extremely interesting not only from the perspective of copyright development but also for the process in which it is becoming legal to perform massive surveillance over the population.

I think that there is important to reflect over the meaning of copyright, that as Stefan Larsson has written in this blog entry and the full article, it is supposed to be about the right of the creators to protect their work rather than on prosecuting a great deal of the population.

I agree with the fact that illegal downloading and piracy affects the film and music industries (among others) but there might be alternatives to tackle the problem. An example of this is Internet streaming sites where the user pays for having access to the service. The industy has to evolve and adapt to the needs of the consumers, to rely mainly on legal measures that put at risk individuals’ right to privacy does not seem like the best alternative to protect intellectual property.

In recent years we have experienced policies that make surveillance legal. These policies have been justified mainly under the argument of counteracting terrorism and criminality. Examples of this are the Patriotic Act in the US, the IPRED and Data Retention Directive in the EU as well as the growing amount of surveillance cameras in public spaces. Sadly, these new legislation remind us of Orwell’s book 1984 where everybody is being constantly monitored.

EmEs, thank you for an interesting read. I agree with you that younger individuals are having a scheme of shearing and downloading files on the Internet. This is a modern kind of “behavior” and way of living throughout the world. I additionally agree with you that there is a difference on what files one download and what kind of information it contains. By adopting legislation concerning these issues cross-boarder is a step in the right direction for harmonizing the various legislations and get a more comprehensive legislation in the region. However, I presume that it is and will be very hard to formulate the laws so they are appropriate and applicable in all the nation states in the Union, and so they will not interfere with the different MS national legislation.

As you mentioned, the IPRED and ACTA have been debated much in recent time (at least in Sweden) and there are several pro and coins to the discussion. I agree with you that I do not believe that the file shearing will totally disappear, however it may diminishing drastically through harder regulations. However, as we can see at present time, many young people (as well as older) argues that this interferes with their rights and that the development of the laws have not followed a democratic process, which also have created several so-called pirate parties which deals specifically with these issues. This is surely a very interesting but complex topic, which holds several good arguments from different standpoints. It will be interesting to follow the development of these problematic issues and see what the future brings.

Larsson’s article conveys many interesting points in regard to the development of European Copyright, which definitely highlight challenges that have shown to be, and will be rather troublesome in the future, especially when it comes to scrutinizing developments of specific laws such as the IPRED and the Data Retention Directive. Analyzing the European copyright from the perspective that Larsson uses; the one of the path dependence is of great importance, and Larsson’s fifth point that the development of legislation in relation to “general mass surveillance of the entire population” is an issue that we may not take lightly, and is absolutely a matter that scholars and others need to look further into and discuss more . One has to state that all laws that are regarded to somehow intrude or endanger the privacy of the citizen has to be enlightened and scrutinized in order to correct and improve both current and possible future legislation.

Furthermore, researching regarding the implementation of the Data Retention directive, many significant aspects were found and may be underlined within this discussion, but as some of my colleagues have mentioned already, I, as well, have found it the extremely interesting that the Data Retention Directive implies that member states are free to define what they regard as “serious crime” by the so called “competent national authorities” in their own national legal system, and also that Member states shall decide when access to data shall be permitted , which absolutely feels an issue that need to be reconsidered in order to avoid that member states may risk individuals’ privacy. Although the “open” framework might suggest that member states are given the opportunity to implement it better into their national legal system according to co-existing social norms etc., one might reconsider if a free interpretation in regard to “serious crime” is the right way to create successful implementation of a directive such as this.

Further, as Falkner demonstrates in her article “Institutional Performance and Compliance with EU-Law: Czech Republic, Hungary, Slovakia and Slovenia”, there are obvious problems to make comparisons between different countries within EU when it comes to assess compliance . Her arguments are significant when analyzing legislation such as the Data Retention Directive. If a directive is developed so that member states are “allowed” to interpret a law freely (in regard of interpreting “serious crime” for example) as suggested, there will absolutely be great differences in compliance in between various member states due to existing factors, similar to those that Faulkner discusses in her article, where some also might not implement the mentioned directive at all.

Summing up, one might claim that the digital era has given us a lot of new opportunities, where information may be shared and obtained within the twinkling of an eye, however, new technology has also given criminals new spaces and platforms to commit crime, which is many times seems rather difficult for national governments to legislate and “control” without endangering the privacy of the individual and creating “a general mass surveillance of the entire population”, which I agree with Larsson is a significant matter that needs to be scrutinized . Although governments are forced to create legislation in regard to these matters, creating legislation that has a “free” legislative framework such as the Data Retention Directive does not seem to be a successful framework and shall be reassessed.

I agree that norms of the legislation are inherited from the legislation regulating infringements of immaterial rights which are deemed different in form to that of file sharing. The viral phrase “I wouldn’t steal a car, but I’d download one if i could” is an example of how the standards of the film, gaming and music industries and those of the infringers diverge. As the infringements continue on a massive scale, the law moves slowly in its response. The technology develops and presents new challenges as soon as any effective reprisals are set. James Boyle summarizes it well as ”[…] we are sailing into the future on a sinking ship. This vessel, the accumulated canon of copyright and patent law, was developed to convey forms and methods of expression entirely different from the vaporous cargo it is now being asked to carry. It is leaking as much from within as without.”

In response to Amanda, I completely agree that the price payed through diminishing personal integrity is disproportionate. In The Path Dependence of European Copyright Stefan Larsson argues that intellectual property rights and security policies have affected the political discourse and indeed, colonized other areas of law such as consumer privacy and to some extent property rights. However, I would argue that the colonization goes beyond these rights, as is also indicated by some of the reactions from civil society. The infringement on every person’s right to personal integrity and a private life is not the only conflict with human rights when the surveillance and the power to issue search warrants are placed in the hands of plaintiffs, founded in the Enforcement directive and further developed in ACTA and other treaties currently in development. The move from the necessity of a probable cause for the intrusive searches and infringing data collections is also a move from the presumption of innocence, which is a central tenant of EU criminal law, the ICCPR as well as international customary law concerning due process.