Fordham IP Conference Report: Part 5

Today's programme opened with a sunrise seminar at 7.30am on the subject "Rule of Law on the Internet: Feasible or Fantasy?", chaired by renowned IP scholar and jay-walking analyst Hugh Hansen. The keynote address was delivered by Richard Cotton (NBCUniversal Media), who listed five axiomatic propositions:

• There was a need to move forward in terms of internet rule of law, since we can't stay where we are;
• Any solution to current problems of content control must be rooted in the technology of the internet itself;
• Regard must be have for the ecosystem, particularly with regard to (i) the way law enforcement bodies work and (ii) the roles played by creators of the broadband internet infrastructure (here Richard drew an analogy with the role played by banks as conduits for money-laundering -- they had to be brought into the problem-solving process);
• Due regard must be had for competing interests and values, such as privacy, access to information and freedom of expression;
• It is unrealistic to talk of a 100% successful solution, and it is more important to identify a broadly workable one.

This sparked off a good deal of discussion from the large body of panellists, most notable of whom was Andrew P. Bridges (Winston & Strawn LLP).  Like Richard, Andrew also thinks in units of five.  He argued that the rule of law was based upon the pillars of consistency, universality, shared values, respect and fairness. Any solution to the problem of unrestricted copying of internet-accessed material which failed to meet those requirements was illegitimate and would be doomed to fail. 

Mr Justice Peter Charleton then reminded the session that, while much debate was centred on US law and practice, the European Union was also in existence -- with its own political and legal structures and its own debate.  He outlined the Advocate General's Opinion in the Court of Justice reference in Scarlet Extended (see note here), which appeared to favour the interests of anonymous internet users and internet service providers over copyright owners, and had some kind words for the approach at present adopted in the United Kingdom via the Digital Economy Act (on which see earlier IPKat post here).

IPKat team member Jeremy added a few words about Europe too. He mentioned the parallel existence of the European Court of Human Rights, which has recognised IP rights but has not asserted them ahead of rights of privacy or freedom of expression. He also explained how the Pirate Party now had two members of the European Parliament and that the debate over copyright on the internet was thus being engaged in a rather different manner from that of the United States. Finally he observed that, with the rise of the social media, many providers of user-generated internet content had something of a contradictory attitude towards copyright; they were happy to help themselves to the works of others, but expected their own photos, emails, tweets and other product to be safe from unauthorised use or distribution.