As already indicated in my earlier post, one of the mainstream topics of discussions in Germany concerning IP politicts is the stunning rise of the German Piratenpartei (Pirate Party) at least if recent polls can be trusted. As of April 18, 2012, a poll covering the entire territory of Germany attributes to the Piratenpartei a 13% share of the votes. This is remarkable, indeed. According to the same poll, the Greens could expect a 12% share of the votes and, hence, the Piratenpartei might well be called third-strongest political party in Germany. However, we should not forget that such polls usually have a substantial error margin and, hence, the reality might also be that the Greens have 14% and the Piratenpartei merely 11% of the votes. In any case, at least at the time being, the Piratenpartei appear to be well avove 10% and, of course, well ahead of the 5% quorum required to get seats in general elections.

In view of this situation we can see an increasing level of nervousness – if not outright panickiness – amongst other political parties which are feverishly considering all available options of how to cope with this new political force. It is entirely open to what end this development will lead. Some parties, in particular the Greens, might be mulling to inch towards Pirate positions in order ro regain ground in circles of younger citizens while others surely will prefer to fight agsinst the very tendencies embodied by the Piratenpartei. In this context and speaking to an audience of IP specialists living abroad I would also like to point out that the current political discussion of the Piratenpartei can by no means be reduced to issues related to IP rights. There are other topics, for example in the fields of welfare politics or related to defending civil rights which are of great importance domestically.

Deep concerns and even panic can not only be seen at political parties but also elsewhere in public life. Take for example one of the most renowned broadsheet papers in Germany, the Handelsblatt. This is a daily mainly covering themes of economic relevance. In their issue dated April 05, 2012, which as made up with a title page pugnaciously chanting “MEIN KOPF GEHÖRT MIR!” (“My head belongs to myself”; see picture on the left) and printing a mixed bag of about one hundred brief text snippets authored by artitsts, politicians, lobbyists and the like, all of them condemning positions accredited to the Piratenpartei concerning alleged tendencies to promote abolition of IP rights. One of the main problems with this politically motivated happening of Handelsblatt surely is, however, that obviously rarely a few of all of the contributors have argued in a way supporting an assumption that the party programme of the Piratenpartei was studied in detail. When reading the Handelsblatt paper, one must come to the conclusion that the hundred contributors dissociate themselves from something like a total abolishment of all IP rights. This is, however, not a valid point in this debate here. Pirates might object to the abstract concept of “intellectual property” but at least the German chapter of the international Pirate Parties movement appears to be quite moderate when it comes to particular proposals to reform copyright, patent and other related laws. They are surely not radical abolitionists of all IP rights. This does not mean that all of these proposals should be considered acceptable; to the contrary, many of them will cause severe headaches in the affected circles of businesses run on IP-based business models. However, it surely is uncandid to presume and also to suggest in an unquestioned manner that the German Piratenpartei currently aims at abolishing all IP rights altogether. The alternative which is to be preferred in my humble opinion is to carefully read Pirate’s demands and to enter into a fact based discussion. It does therefore not come as a surprise that Handelsblatt has been bashed extensively and rightfully by critics especially on Internet social media for pushing this sort of half-baked political orchestration.

As early as November of 2010, Maximilian Haedicke, Law Professor at the Albert-Ludwigs-University in Freiburg, Germany, closed his manuscript of his book “Patente und Piraten – Gestiges Eigentum in der Krise” (Patents and Pirates – The crisis of Intellectual Property) which has been published (in German) by C.H. Beck, Munich. The author studied law in Munich, Geneva and Washington D.C. (LL.M. Georgetown 1995 as Fulbright-Scholar, New York; Bar Exam 1995). In 1997 he prepared his doctoral thesis at the Max-Planck-Institute for Foreign and International Copyright, Patent and Competition Law in Munich on the subject of “Copyright and US International Trade Law and Policy”.He became assistant professor at Max-Planck-Institute for Foreign and International Copyright, Patent and Competition Law in Munich. Afterwards he worked for an international law firm with a specialisation on intellectual property and information technology law, especially in the area of patent litigation. Since fall 2003 he is tenured professor at Albert-Ludwigs-University in Freiburg where he holds a Chair for Intellectual Property and Competition Law. In his small book mentioned above he discusses a broad range of topics in a number of chapters as follows:

  • System under fire
  • Delusional usage of of cease-and-desist letters and Internet blockers
  • Liability of Internet service providers for copyright infringement committed by their customers
  • Limitations of creative utilisation of artwork imposed by copyright
  • Copy protection and private copies
  • Copyright and access to knowledge
  • Development options for copyright law
  • Software patents – absurdity of patent law?
  • Pharmaceutical patents – boon or bane?
  • No patents on life?
  • Development options for patent law
  • Calling the system into question: Why Intellectual Property?

On the one hand, Professor Haedicke ought to be praised for opening a serious debate on the final reason as well as on first principles of Intellectual Property in view of the upcoming Pirate movement as early as in 2010. However, on the other hand, the political development appears to be so rapid that publishing a manuscript in the form of a traditional paper book might look a bit futile. Nevertheless, I think that even today Haedicke’s book is worth a read.

In the first copyright-centered chapters of his book, Haedicke demonstrates by knowledgeably going into many details that he is very well acquainted with this field of law. He discusses numerous problems of copyright and neighbouring/related rights in the digital realm and sounds a note of caution: It probably does not make sense to ever increase the level of IP protection in this field e.g. by introducing a new suis generis sort of auxiliary copyright (“Leistungsschutzrecht”) for the benefit of publishers currently fiercely under debate in Germany.

But when Haedicke comes to patent law, some deficiencies surface.  A number of relevant problems in the field of patents, e.g. patents on computer-implemented inventions or pharmaceuticals as well on livestock, patent trolls, essential patents in the context of standardisation, FRAND licensing, problems of royalty stacking etc. pp. are all briefly touched but not brought to definitive and  remarkable conclusions..

The concluding chapter gives some hints as to how the future development of IP law could or should be steered but, of course, also there are no definitive answers which could be deemed as final. Haedicke admits that any careful dealing with copyright and patent law should by no means simply aiming at extending the broad range of protection across the board and in an inconsiderate manner already conferred by today’s law.

Despite some limitations, the book of Haedicke surely is an interesting opener for substantial discussions on the future of IP law. And this discussion must be carried on based on a sound factual foundation in order to avoids useless showdown happenings without much substance in future as we have seen in the Handelsblatt case explained above.

About The Author

Axel H. Horns

German & European Patent, Trade Mark & Design Attorney

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