OBSERVATORY The Observatory´s 2014 Regional Nordic Seminar on Enforcement Page 1 of 31 The Observatory´s 2014 Regional Nordic Seminar on Enforcement Summary The Observatory´s 2014 Regional Nordic Seminar on Enforcement was held on 6 th , 7 th and 8 th October in Copenhagen. The OHIM and the Danish Patent and Trade Mark Office worked in cooperation to host the event, which brought together officers from Customs, Police, State Prosecution and national IP offices alongside experts in copyright and Internet IP crime, and Industry stakeholders. The aims of the seminar were to consolidate information between Nordic-Baltic States law enforcement officers, to share best practice models, to discuss specific questions on regional cooperation, jurisdiction, and the challenges posed by IP infringement related cybercrime, and to participate in workshops. The Observatory operates as a platform for IPR enforcement and the concentrated training, discussion and networking opportunities offered at the three day event aimed to strengthen working relationships in the Nordic countries. The cross-jurisdictional complexities of Internet enforcement and the necessity for EU enforcement bodies to work together in order to combat transnational IP crime were highlighted in presentations by Erling Vestergaard, Deputy State Prosecutor in Denmark. Lars Underbjerg´s presentation (former Danish Police officer and currently working for “STOP - Nordic Content Protection”) emphasised the need for the Police to present specific technical information gained during Internet counterfeit investigations to prosecutors and judges in a way that can be understood – so that the indicative findings of such evidence can be used fully, when deciding cases. Kenny Wright presented on the importance of IPR to society, economy, business and consumers. He underlined the stark economic reality of counterfeiting as a rapidly growing criminal act. Those involved do not care whom they hurt through the illegal production of substandard and dangerous goods; they gain proportionally huge financial returns in the face of low legal sanctions, which do not deter them from continuing their criminal acts. The suggested financial total lost to the genuine economy is around USD 650 billion, and 2.5
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OBSERVATORY
The Observatory´s 2014 Regional Nordic Seminar on Enforcement
Page 1 of 31
The Observatory´s 2014 Regional Nordic Seminar on Enforcement Summary The Observatory´s 2014 Regional Nordic Seminar on Enforcement was held on 6th, 7th and
8th October in Copenhagen. The OHIM and the Danish Patent and Trade Mark Office
worked in cooperation to host the event, which brought together officers from Customs,
Police, State Prosecution and national IP offices alongside experts in copyright and Internet
IP crime, and Industry stakeholders.
The aims of the seminar were to consolidate information between Nordic-Baltic States law
enforcement officers, to share best practice models, to discuss specific questions on
regional cooperation, jurisdiction, and the challenges posed by IP infringement related
cybercrime, and to participate in workshops. The Observatory operates as a platform for
IPR enforcement and the concentrated training, discussion and networking opportunities
offered at the three day event aimed to strengthen working relationships in the Nordic
countries.
The cross-jurisdictional complexities of Internet enforcement and the necessity for EU
enforcement bodies to work together in order to combat transnational IP crime were
highlighted in presentations by Erling Vestergaard, Deputy State Prosecutor in Denmark.
Lars Underbjerg´s presentation (former Danish Police officer and currently working for
“STOP - Nordic Content Protection”) emphasised the need for the Police to present specific
technical information gained during Internet counterfeit investigations to prosecutors and
judges in a way that can be understood – so that the indicative findings of such evidence
can be used fully, when deciding cases.
Kenny Wright presented on the importance of IPR to society, economy, business and
consumers. He underlined the stark economic reality of counterfeiting as a rapidly growing
criminal act. Those involved do not care whom they hurt through the illegal production of
substandard and dangerous goods; they gain proportionally huge financial returns in the
face of low legal sanctions, which do not deter them from continuing their criminal acts. The
suggested financial total lost to the genuine economy is around USD 650 billion, and 2.5
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million lost jobs1. In order to attract investment at a national level from large multinationals,
it is important to show a commitment to the protection of IP rights.
The matter of lost tax revenue was discussed, and the possibility of pursuing IP cases on a
financial basis, with reference to the ECJ ruling that counterfeit commodities are subject to
tax.
Chris Vansteenkiste from Europol showed the tangible danger to Public Health posed by
fake automotive and electrical parts, fake pharma products and medicines, and foodstuffs
sprayed with illegal pesticides – a growing phenomenon. He explained Europol´s focus on
serious and organised crime and Intellectual Property Crime, the direct link between the
two, and the organisation´s Memorandum of Understanding (MoU) with OHIM, in addition
to interagency relationships with enforcement bodies including INTERPOL and ICE, and
the private sector. The European Cybercrime Centre (EC3), a Europol department, was
detailed and participants at the seminar were invited to join the Europol Platform for
Experts (EPE), the organisation´s secure enforcement experts´ platform.
Valerio Papajorgji from the OHIM’s European Observatory on Infringements of Intellectual
Property Rights, presented on its range of project-based work, training programmes,
working group meetings, and its modus operandi as a knowledge building and facilitator
platform for EU Enforcement, legislators and public and private stakeholders. Two
completed data-driven studies compiled by the Observatory on the perception of IP
amongst EU citizens and IP´s contribution to the EU economy, and an ongoing study on
the quantification on IPR infringements, were discussed alongside their methodology. The
presentation also focused on the Enforcement Database (EDB) and ACIST Database, with
the aim that participants at the seminar can use the information housed on these secure
tools during future national and cross-border investigations.
Eric Gastinel, OHIM Academy, introduced the OHIM IP Teaching Toolkit for Enforcement
Officers. The kit has been designed to be a readily accessible and practical tool which
focuses on basic concepts of EU Law for enforcement officers, an overview of IPRs and the
basics of IPR enforcement.
Michael Poulsen from the Danish Trade Mark and Patent Office underlined the need to
raise public awareness as a whole, so that informed choices can be made by consumers.
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Day One Michael Poulsen from the Danish Patent and Trade Mark Office welcomed everyone to the
second Nordic seminar with participants from Police, Customs, Prosecution and IP Offices.
He underlined the necessity to involve all countries via a transnational approach so that
future cases can be addressed in coordination. He urged all participants to take up the
excellent opportunity to network at the seminar and to forge contacts which can be used in
practice during investigations. Eric Gastinel, OHIM Academy and Valerio Papajorgji, EU
Observatory, welcomed all participants and underlined the goal of the event, which was to share knowledge and best practices, to learn and to network. The participants
introduced themselves around the room, and the three day programme focusing on
speakers and workshops commenced.
Kenny Wright started the presentations. His background in IP crime with the Hong Kong
Police spans more than 20 years, and he now works with the Danish Patent and Trade
Mark Office on international projects regarding IP crime. His presentation focused on the
importance of IP rights to society, economy, business and consumers.
WIPO defines Intellectual Property as “creations of the mind” and includes copyright and
related rights that are used to protect music, plays, movies, the arts; patents are used to
protect inventions; industrial design rights are used to protect the shape of a product. Trade
marks are used to protect the signs which are used to identify the goods and services of a
company, denoting quality, and geographical indications are signs that are used to protect
goods from a specific geographical region, such as olive oil from Tuscany. Like all property,
the owners of that property are entitled to protect their property, and this right is enshrined
in international legislation. It is possible to use multiple IP rights to protect a product.
So why is IP so important to the global economy? A US study in 2012 highlighted the
economic importance of IP, followed by the OHIM/ EPO´s IP contribution study in 20132.
Twenty seven Member States´ IPR-intensive industries were covered in the OHIM study,
and the findings show that 321 out of 615 industries3 are IPR-intensive and they provide
56.5 million jobs in the EU economy; this accounts for 26% of all jobs in the EU and a
further 20 million jobs which are linked indirectly. In short, 39% of all EU activity involved
2 IPR-Intensive Industries: contribution to economic and performance and employment in the European Union, September 2013. https://oami.europa.eu/ohimportal/documents/11370/80606/IP+Contribution+study+PPT 3 Figures taken from the period 2008-2010.
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economy. However, due to its importance, the IP world attracts organised crime, who steal
money from economies through piracy. Counterfeit goods pose a serious and growing
threat to the health and safety of the Public, whilst organised crime poses a huge threat to
our societies in general.
Michael Poulsen asked in what way has awareness in governmental organisations been
heightened? Kenny Wright answered that, in the past, the biggest challenge was to
harness Police interest in counterfeit and work alongside them. Increasingly, there are
specialised IP crime units in countries – but they are small. Additionally, there is increasing
legislation in order to protect IPR. There are slow improvements but, for example, the
power to seize assets and the implementation of tougher sanctions are needed. However,
raising consumer awareness is of equal importance - there is a demand for counterfeit
goods - so that buyers can make an informed decision. Industry and government
organisations must work together. Michael replied that many private industries, especially
the pharmaceutical industry, are reluctant to admit their goods are being faked due to the
possible loss of public faith in their goods. However, he noted that at Industry level, a group
of pharma companies has worked together in order to support enforcement activities as a
group.
Finnish Customs stated that it is necessary to raise awareness within enforcement units –
at present, it is difficult to interest Customs officers in a seizure of counterfeit goods, in
comparison to drugs. It was suggested that the private sector could help in raising
awareness with Customs officers through lobbying and funding awareness campaigns.
Monica Pop, head of the Romanian IPR Crime Unit, presented on IPR enforcement
legislation and principles. The unit was established, with political backing, in 2006 to
coordinate efforts against piracy and counterfeiting - including the delivery of enforcement
seminars to private companies - and is based at the Prosecutors´ Office attached to the
High Court of Cassation.
She underlined the existing legal tools including international conventions and treaties,
directives, Customs regulations, TRIPS (1994), standards and the European Court of
Justice case-law, used in the application and the harmonisation of IPR legislation -
including adequate border measures. It must be noted, however, that in some Member
States, it is not possible to act ex officio, and that some cases are lengthy, and not entirely
compatible with the TRIPS agreement. TRIPS states that available remedies should
include criminal procedures, including imprisonment and monetary fines, and the seizure
and destruction of infringing goods.
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In the light of TRIPS, some countries have separated civil and criminal actions involved in
infringements – in order to determine whether the activity is on a commercial scale. After
the implementation of Enforcement Directive 2004/48/EC, it is important to understand the
civil provision in order to better harness the sphere of protection it affords, including the
ability to ask for a lump sum of damages on behalf of the right holder. In Romania for
instance, it is possible to pursue the counterfeiter for three times the amount of the
relevant, legitimate licence for the rights. During a civil procedure, it is possible for the right
holder, with the court´s support, to secure information about banking and distribution
channels of the counterfeiter. During a criminal investigation, the Police will pursue all such
information automatically.
Notably, it is important to train Customs officers in the IP right that has been infringed, and
the scope of the protection of each IP right, in order to simplify their investigations – the
infringement of, for example, a combination of trade mark, shape and colour protected
design. Previously, it was the commonly accepted view that counterfeit goods could not be
subject to a tax evasion investigation – however, a 1998 ECJ ruling stated that, due to the
nature of the commercial nature of counterfeit goods6, they are subject to tax7.
In Romania, ex officio actions - without an initial complaint made by the right holder - are
normal in criminal investigations, if there are commercial grounds. These include the
investigation of bank documents and distribution routes, seizures, and the process of
pursuing damages. However, the investigation is closed down if there is no subsequent
support on the behalf of the right holder.
Monica Pop underlined the challenges facing Enforcement in all EU Member States,
including the scene of the crime – the Internet. In many cases (for example, online piracy
via illegal downloads of mobile phone ring tones, which violates copyright), electronic
evidence is stored outside the investigating country and involves foreign ISPs and servers.
Furthermore, the standards for storing such evidence vary greatly in each country, and
officers must act almost immediately in order to capture such evidence.
Henrik Vestergaard, Danish Prosecution, SØIK, presented on recent successful Danish
IPR investigations, including a case of illegal broadcasting. Notably, the actor was a young
man who held the view that all content on the Internet is free, who was working alone with
6 (in comparison to narcotics or forged money) 7 ECJ Case C 3/97, Judgment of 28th May 1998, Goodwin and Unstead (C-3/97, ECR 1998 p.1-3257).
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only one powerful computer – and not for commercial gain. His motivation was based on
his opinion that large organisations should not make money from content on the Internet.
In another case, a copyright case, involving furniture sales from a UK registered web
company, Henrik underlined the transnational nature of IP criminal activity, including links in
China, Italy, Denmark, Estonia, Germany and the UK, and bank accounts in Spain in order
to add distance to the money generated. The actors involved were an ex-Danish Police
Officer and a former Danish biker gang member. One of the main challenges in the case
were the differences in Copyright Law between Denmark and the UK. It was noted by
Professor Jørgen Blomqvist (University of Copenhagen), however, that the level of
protection for copyright is being harmonised in the UK. He explained that the right of
distribution and of territoriality is the question in hand – the criminal action of offering for
sale the infringing goods carried out in a State means that the action can be prosecuted in
that State. Chris Vansteenkiste, Europol, added that PIPCU (City of London Police) had
worked alongside the progression of a draft bill in the UK in order to harmonise the law
regarding the years of protection, so that there will not be a loophole for criminals who plan
to register websites in the UK for this very purpose.
Maria Fredenslund, Rettighedsalliancen (an interest organisation of 85,000 members who
are producers and distributors of content) presented on enforcement matters from a right
holder´s perspective. Their stakeholders house their content online and find it difficult to
enforce their rights online. Notably, in the past, consumers and Press believed it was unfair
to enforce copyright regarding this content. The organisation strategically made the distinct
difference between consumers and criminals – and does not enforce against consumers.
Rettighedsalliancen involve the Media, advertisers, search engines and stakeholders to a
dialogue forum in order to discuss the subject of enforcement voluntarily.
The organisation monitored pirate sites and peer to peer services involving 3.8 million
downloads of 18 movies during one month in 2014. Notably, many Danish movies are
downloaded from Russian ISPs. Once the movie was offered for sale legally, the illegal
download figures rose massively, which offers a different perspective on the suggestion
that once legal offers are made available, illegal activity decreases.
The overall accepted view in Denmark is that it is not possible, either by civil or criminal
sanctions, to enforce rights on Internet content. All music is released on pirate services –
which means that there is always a free illegal offer for new music. Additionally, traditional
crimes such as forged money and credit card fraud, offer much lower returns that pirated
goods and counterfeit pharma goods.
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How can the Police act against an illegal act such as online piracy? The criminals are
clandestine, faceless and protected through anonymity – and are able to move their servers
almost immediately to another State if necessary. In The Pirate Bay case, the Police knew
those involved and seized the servers – minutes later, the servers were active again. Jail
convictions and huge civil damages have not stopped the activity nor deterred the actors.
In Denmark, it is possible by court order to approach the ISP organisations to block access
for Danish Internet users. However, it is easy to circumvent the blocks, so this remedy is
ineffective in itself but it serves as a communication tool with the users. Instead of
appealing to the morality of consumers, the organisation attempts to make it easier to use
the legal offers available and educate them.
Valerio Papajorgji presented on the EU Observatory, which is a network covering 28
Member States, 51 private sector associations, public authorities, national IP offices (which
act as the national points of contact), six associations representing consumers and civil
society, the European Commission (DG MARKT, DG TAXUD, DG Trade and DG ENTR),
10 members of the European Parliament who provide advice and guidance, and other EU
and international organisations including Europol, Eurojust, EPO and WIPO.
He detailed the project-based Work Programme for 2014, which builds on the work
delivered in 2013. The EU Observatory has overseen the completion of two main studies,
“IPR Intensive Industries - Contribution to Economic Performance and Employment in the
EU” (OHIM and EPO), and “European Citizens and IP: Perception, Awareness and
Behaviour” (OHIM), as well as managing an ongoing study on the quantification of IPR
infringements. Additionally, an OHIM-Europol Joint Situational Report on Counterfeiting in
the EU is in progress, which looks at the modus operandi of counterfeiters – its
methodology is based on a mix of qualitative data (contributions provided by the law
enforcement agencies, private sector companies and associations, etc.).
Most IPR-intensive industries are intensive in more than one Intellectual Property Right.
Furthermore, 39% of all economic activity (GDP) is created through IPR-intensive
industries, which pay more than other industries, with a wage premium of 40%. Notably,
88% of EU imports consist of products from IPR related industries and 26% of exports are
from IP-intensive industries.
The IP Perception Study focuses on the state of awareness and understanding of IP
amongst European citizens; how they value IP and what messages could be used to more
effectively help them understand the value of IP. Notably, European citizens value IP as a
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fundamental element of the economic and social system, but on a personal level they
justify certain infringements, especially amongst the younger generation.
In 2013, the Enforcement Database (EDB) went live. It was funded and created by OHIM in
order to facilitate communication between right holders and enforcement authorities, with
the ability to identify, track, trace and increase detentions of counterfeit goods. The private
sector is able to share information about their products (in their language) with enforcement
organisations including Police authorities, and it is a free service. To date, more than eighty
companies have submitted data, including L´Oréal. The secure tool allows enforcement
authorities to inform right holders about suspicious cases and right holders are able to
create alerts for enforcement authorities. A Memorandum of Understanding has been
signed with WCO in order to link the Observatory´s EDB with their IPM (Interface Public-
Members) secure online tool.
The ACIST database is a tool via which data about seizures across the Member States is
stored, analysed and reported, using a common standard. The information is collated in a
harmonised method, so it can be aggregated and rolled out to give insight to politicians
about the true extent of the problem. Full deployment of the ACIST and the EDB, alongside
Europol´s secure network and integration with COPIS (following the completion of an e-
pilot) will make the tool accessible to all companies who wish to use it.
The Observatory manages a Knowledge Building programme in collaboration with other EU
agencies, including regular and jointly held OHIM-Europol conferences which include
speakers and participants from Police and Customs. It is foreseen that there will be future
training for prosecutors in conjunction with CEPOL and further seminars involving
prosecutors and judges, with participation from Eurojust and the OHIM Academy. The
Coordination Group meets twice a year in order to avoid duplication of efforts and focus on
collaboration.
The Observatory´s aim is to develop a new narrative for Intellectual Property, supported by
evidence and facts, with a positive and inclusive vision of IP and its protection – which will
provide evidence-based knowledge for policy makers and stakeholders. The IP
Contribution Study will be repeated on a regular basis; methods to define and measure the
economic impact of counterfeiting and piracy will be harnessed, and studies to improve the
understanding of emerging issues in IP will be carried out. Campaigns on an EU, national
and regional level, including a presence on Twitter and Facebook will be launched, and the
creation of a forum for the younger generation, via which they will be able to exchange
ideas linked to IP matters.
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Workshop Questions and Feedback Day One
1. Outline current national and regional IPR cooperation.
2. What are the main challenges for a stronger regional IPR enforcement cooperation?
3. Identify key areas which are suitable for enhanced regional IPR enforcement
cooperation.
• There is a level of national cooperation in Sweden, Estonia and Denmark. Notably,
all Police were interested in investigated IPR crimes. Denmark have the strongest
sanctions (up to six years´ jail time). In Finland and Norway, Customs and Police
generally work separately.
• There is a lack of knowledge which poses the real problem, especially in the Police;
there is a lack of resources, and the Police are instructed to focus on the national
target, which is drug trafficking. Furthermore, there is a lack of interest at a political
level.
• The key areas to consolidate are IPR working groups (akin to the Swedish model)
and national strategies. In Finland, Customs and Border Police work together, but
not on IP crime.
• Latvia has dedicated prosecutors for IP crime, and their specialised knowledge is
vital.
• Common databases would be of great benefit.
• The Customs Nordic Cooperation Network meets annually and includes Iceland,
Finland (and has also invited Estonia and Europol).
• Regional cooperation poses big challenges in practice - to gain legal assistance
from another country involves bureaucracy, takes time for the officer to find and
approach a national contact point. Often, finding the correct contact and a proactive
contact, is the biggest hurdle. Language differences are challenging, on a practical
level.
• It would be advantageous to have national point of contact – a contact person for
the OHIM regarding enforcement as well as trade mark matters.
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• There is a lack of networking in general and events such as this seminar are
important. There are Nordic conferences but not sufficient proactive regional
cooperation.
• The lack of money and lack of means inhibits opportunities for contact.
• Intelligence sharing through Europol is needed.
• There is no common framework - different legislations exist in different countries,
and differences in implementation.
• Do stakeholders act?
• Denmark is in the process of compiling contact points for IP investigators in different
districts.
• In order to establish workable cooperation between regional authorities, it is
necessary to find a way to share the details of the complaints.
• Denmark has strong national cooperation between enforcement and other related
institutions. The Police work alongside Europol and IOS (‘In Our Sites’ Action). The
ministerial network meets twice a year to discuss current IP matters. Meetings with
stakeholders involve right holders and discuss specific matters e.g. Internet crime.
• Denmark has web pages informing conpanies how to report a complaint to the
Police.
• Estonia is a small country with large transit numbers to Latvia and Finland, but with
few human resources – when working in cooperation, units can share human
resources, risk analysis etc. Police and Customs do not work closely together and
this poses problems for prosecutors. Estonian investigations focus on national
activity only. There are no webpages to educate consumers in Estonia, only official
Patent Office pages.
• Norway is inspired by the Danish example – the Ministry of Trade and Industry has
given the Norwegian IPO support to create an attractive webpage in order to
educate consumers, which will be completed in January 2015 involving all IP
authorities. The Ministerial Network aims to increase authority members and hold
regular meetings from January 2015.
• In Latvia, the State Revenue Service website offers official and specific information
only. In terms of regional cooperation, there are only seminars. The government
suggests that there should be more cooperation at a national level – but most
organisations are working so busily at an organisational level only.
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• Serbia has a good national level cooperation with Market Inspection and the Patent
Office, who work jointly on a case by case basis in practice, although there is no
official protocol yet, but it will soon be finalized. Regionally, there is good
cooperation with INTERPOL.
• It is vital to raise awareness with the General Public – IP crime is a serious crime
which affects the lives of workers and the average person. It is increasingly
important to raise awareness amongst the younger generation, amongst whom
knowledge is very low.
• Danish Customs has developed strong cooperation with other ministries. The main
challenge is to harness support within each organisation in order to prioritise
cooperation with other parties, nationally and regionally.
• Sharing best practice is extremely helpful.
• Norway´s ministry is pushing towards network cooperation but other parties have
little resources so there are some barriers in practice.
• Serbia highlighted the need to share information with neighbouring enforcement
organisations regarding cross-border crime – commonly, servers sits in Croatia or
neighbouring States, and the goods are sold within Serbia.
• Feedback from Police officers at the seminar suggests that there is also a current
lack of technical knowledge held by judges deciding on Internet IP cases, and a
need to address the issue.
Day Two
Erling Vestergaard, Danish Deputy State Prosecutor, opened the second day of the
seminar with a presentation on Internet governance and functionality. He emphasised that
it is vital for enforcers to understand Internet architecture, its basic functionality and
technicality, in order to be able to apply enforcement and criminal procedural rules.
He explained concisely that the Internet is a decentralised medium of distributed
communications which works via a router and was first functional in 1983. There are only
three kinds of information contained on the Internet – account information, traffic
information (sender, receiver, packet route and time) and content information. Erling
highlighted the reality that anything on the Internet can be accessed both legally and
illegally. The Internet is simply a tool - free, open, offering anonymity - and it is 100% man-
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made. It offers a multitude of challenges including the involvement of criminal activity,
which is rapidly moving online. Societies are changing very quickly and life is facilitated via
electronic services, with the most notable explosions in Internet activity plotted in Asia
Pacific and Northern America within the next five years. In Denmark, for example,
government communications to citizens will exist only in electronic form, from November
2014.
The Internet Corporation for Assigned Names and Numbers (ICANN) runs the Internet. It
was established in 1988 as a semi-private organisation under the US Department of
Commerce. In 2006, it became a private organisation and the US Government has no
control over what ICANN decides. ICANN´s Board of Directors (people elected from the
Internet Industry) is autonomous and acts, at times, against the wishes of the US
Government, although ICANN sits under US Law.
Investigations on IP Internet crime focus on locating the actors by tracing the route of
communication via the layers of technical equipment used, the ISP, the individual IP
address (which can identify the place of the user using the correct time code/ UTC
Coordinated Universal Time Code) and a DNS server which locates the hosting server. It is
important to look at the Hypertext Markup Language (codes which reveal construction) and
FTP8 (file transfer protocol) which shows which files have been accessed by the user,
including peer to peer sharing of information. However, implementation of The Onion
Router (TOR), means it is impossible to trace the user. This tool is legal, originally
constructed by the US Navy and was later released for public use. Any kind of criminal
activity can exist on this network.
In Denmark, if the case involves a static IP number, the ISP must give this information
without a court order. If the case involves a dynamic IP number, the Police must approach
the court in order to obtain information about the number, and this takes time which can
prolong an investigation.
Professor Jørgen Blomqvist, University of Copenhagen, former WIPO, followed with a
presentation on “Copyright in the Digital World”. He explained that the protection of
creations of the human mind has existed for several hundred years and started in the book
printing world. In essence, copyright has followed technology, and the law has followed it:
existing legislation is reactive, not proactive. There are international treaties and legal
8 SMTP - Simple Mail Transport Protocol; HTML – Hyper Text Markup Language; HTTP - Hyper Text Transfer Protocol (transfer route); FTP – File Transfer Protocol.
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responses in order to cover content housed on the Internet, which extended existing
copyright legislation. Internet language is simply a different form of human expression.
Digital storage is reproduction, including transient storage of content, and is subject to
copyright. Public communication of copyright content requested on a personal level (i.e.
“pull communication”, requested communication via the Internet) is subject to Copyright
Law, because it has been made available to the Public. In this way, the protection afforded
is similar to distribution rights, because the information has been made available to
individual members of the Public. In the US, physical content such as a book ordered via
the Internet is content also covered under Distribution Law.
However, there are limitations and exceptions applicable to the digital world (WCT, Article
10 and WPPT, Article 16) due to the nature of the availability of online content; for example,
it is not permitted to pass on downloaded musical content to another Internet user, in
contrast to the possibility to sell a book, once paid for. Furthermore, the circumvention of
technological measures must be countered (WCT Article 11, WPPT, Article 18) and rights
management information must be protected against deletions and tampering (WCT Article
12, WPPT Article 19)9.
In short, the available laws do not have full effect on content use, due to the nature of the
availability of Internet content. It is necessary to clarify national law on contributory or
vicarious liability and necessary to implement notice and take-down procedures. It is also
important to implement adequate provisions regarding service provider liability, at a
national level, and other possibilities including inter alia, warning messages, injunctions
against providing access to certain sites, and an obligation to furnish information – but
there must be a due process of law.
Practical responses to the issue include awareness raising, reasonably priced and
accessible legal alternatives, the application of effective anti-piracy methods to survey the
market, and the establishment of a dialogue with service providers – or the possibility to
take legal action against them. The application of alternative business models including the
“Gillette Model” and “TDC-play” regarding music content have been used by companies
regarding copyright.
9 This is mainly applicable, for example, to libraries, so that content from outdated mediums can be transposed in order to protect the content for future generations – it is not applicable to individuals who wish to reproduce content in terms of general piracy.
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It is important to note that, without such safeguards, the future of copyright protection will
be left to the market to determine. If copyright is not respected, the practical consequence
will be the termination of DVDs and downloadable music - films will be made available for
public consumption only in cinemas, and music limited to entertainers´ touring concerts.
Lars Underberg, a former Danish Police officer in the National High Tech Crime Centre,
now working with STOP, presented a case study on card sharing. He explained how prolific
the problem is in Sweden, followed by Norway and Poland. Viewers use a Dreambox which
extracts decryption signals, then transmitted to a server. The required channels can
subsequently be watched by the decryption of the signals received. The Danish Law on
Radio and Television prohibits this act with a fine and up to 6 years in jail under Civil Law.
The level of fines and taxes demanded by the authorities are substantial. Via Nordic
Content Protection, informants can act anonymously. Investigatios start by identifying the
server and IP address, using automatic tools such as Python, and identifying open portals
(via IMAP) such as Dreambox, the dates and times that the actor has been online, and in
which State – indicated by the server address. The latter point is important when
determining in which State investigation must be carried out, and whether cross-border
enforcement is involved. This simplifies the investigation process and it is important to
underline that no hacking has been carried out, nor court orders pursued in order to attain
this level of information. However, continual investigation is required, as evolving online
activity will change the relevant evidence, including the server address etc.
The Police do not have the resources to manage all the cases which present themselves,
even split between local and national Police. It is hoped that guidelines for the Police will be
formulated in the near future, in order to offer advice regarding procedures in such
investigations. The Police can act via search and seizure orders, disclosure of evidence
orders, economic investigation and attainment of card holders information. The Police and
forensic investigators make the vital link between the IP address attained and the physical
person using that IP address, via house searches and suspect interviews and locating the
router. Notably, the technical information can change hugely between the time of the
Internet investigation and Police house searches – but once the server is found, it is
possible to determine which other servers are connected to the original server, and thus the
others who have been card sharing. The majority of cases are presented as economic
crimes, and by Police officers who do not have a high level of technical knowledge, which
poses a substantial practical problem.
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Observatory Regional Seminars for Enforcers Page 20 of 31
The server owners can be charged in solidum. Claims for damages are based on the
available channels, period of use, and number of clients. Danish legislation dictates that the
Dreambox user owner is taken to court to secure the confiscation of the Dreambox. During
the five minute court hearing, if there is any doubt, the judge will order that a civil claim
must be pursued. Importantly, under recent Swedish Law, it is illegal to be a customer of
such an illegal offer, because there has been such prolific card sharing.
The presentation concluded with an address of the problems posed by Internet crime – it is
a borderless crime, facilitated by computers, with links to serious and organised crime, with
high profits, little human resources within investigative departments, and little focus on IPR
investigation. There must be a cooperation between technical and regular investigations,
and between the private and public sectors.
After lunch on the second day, Erling Vestergaard presented on Internet jurisdiction and
cross-border challenges, many of which arise when the action is illegal in one State, but not
in another. For example, the court ruling10 in the Dow Jones & Co. Inc. v Gutnick ” case
concerning the online edition of Barrons Magazine on the 28 October 2000, stated that
there was only jurisdiction where defamation has been received and substantial damages
will only be awarded if the claimant has a reputation to protect in that jurisdiction. This has
massive consequences in an age of international communications, where Media (including
newspapers) is available online and accessible across the globe.
The Permanent Court of International Justice, Judgment no.9 of September 7th 1927, SS
Lotus case, declared that a State “ may not exercise its power in any form in the territory of
another State” – acts of execution cannot be exerted outside the borders of that State.
Article 10 of the Cybercrime Convention 200111 states that copyright infringement is subject
to jurisdictional rules (although trade marks are not specifically covered) and minimum rules
about Internet investigations and minimum criminalisation (for example, copyright piracy)
are addressed. The European Commission advises that all EU members should be
members of the convention.
Article 22 states that a country should have jurisdiction over a crime that has been
committed in its territory (both territory of origin and territory of effect), committed by one of
its nationals, if the offence is punishable where it was committed, in addition to the principle
10 Dow Jones & Co. Inc. v Gutnick case, the High Court of Australia, 10th December 2002. 11 http://www.coe.int/t/DGHL/cooperation/economiccrime/cybercrime/default_en.asp