Adding up the Bits

The Problem of Enforcement

I have indicated above, that if the GII is to be international, it will be necessary to harmonise the separate national provisions for the subject matter to be protected, the level of originality demanded for protection and the laws of unfair competition when establishing the GII. And that the best way to achieve this would be to establish a new international jurisdiction for the information superhighway. I now want to consider the separate, but additional, problem of enforcing those conditions.

One of the major problems with the Berne and Rome Conventions was that there was no international mechanism for ensuring that national legislation in all member countries did indeed afford adequate protection for rights holders. This was one of the main reasons why the TRIPS agreement was included in the GATS. The dispute mechanism administered by the WTO was effectively superimposed over those of the domestic courts in all countries, in order to guarantee to rights holders the protections afforded by the Berne and the Rome Conventions. But this is a messy approach for three main reasons. First, the dispute mechanism cannot be invoked by an individual right holder, only by a national government. Second, there is a grave danger that a nation's general trade policy will become embroiled in disputes over intellectual property rights. And third, the procedure is awfully slow and cumbersome. Although this approach has enabled the developed world to bring into line nations offering inadequate protection for intellectual property rights by threatening them with trade sanctions, these arrangements would be unusable for resolving IPR disputes on the GII.

The TRIPS agreement also laid down new international norms for enforcing IPRs. No doubt these will be taken into account when establishing the enforcement provisions for the GII. However, the international community will also need to reach a common view on three further key issues if they are to resolve IPR disputes on the GII.

First, jurisdiction. If an alleged offence occurs on the Superhighway, in which jurisdiction does it take place? If there is an unauthorised extraction from a database, does the offence take place in the jurisdiction where the database is located? Or is it in the jurisdiction in which the digitised information is finally stored? If a digitised signal is intercepted unlawfully, does the offence occur in the jurisdiction through which the signal was passing when it was intercepted, or does the offence not occur until the illegally intercepted signal is copied onto the interceptor's own computer?

Second, extradition. What, if any, arrangements will be made for the extradition of the alleged offender to face trial in the appropriate jurisdiction? What defence can an alleged offender offer in order to prevent extradition? If found innocent, will the defendant be given the right to receive adequate compensation for extradition, as well as for wrongfully suffered injuries, as provided in the TRIPS agreement?

Third, enforcement. What remedies can courts impose? Can courts in one jurisdiction order the seizure of alleged offending copies in a second jurisdiction? Can a preliminary injunction be served in one jurisdiction against an alleged offender living in another jurisdiction? Can a court in one jurisdiction enforce a guilty party who is living in another jurisdiction to desist from repeating the offence?

Clearly whatever system is set up, will have to balance the rights of defendants with those of rights holders. Yet the more international the dimensions of the alleged offence, the more difficult it will be to protect the interests of both parties. These problems of jurisdiction, extradition and enforcement would be far easier to solve if a new international jurisdiction was established for the GII.

In future, users of the GII will effectively become subscribers to an international network. The rules of the network, including rules of enforcement, would therefore be established by international body which would be set up by governments. Subscribers will each have their own e-mail address, or subscriber reference. Writs of alleged offences could be served electronically, by the network management body, and the accused could also submit any defence electronically to the court responsible for the enforcement of network justice, without having to appear personally. Injunctions could be served and enforced electronically, and any fines could be added to the offender's network charges. In the last resort, an offender could be banned from the network. For non-network offences, national courts would retain jurisdiction.

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