EU developing ‘cyber sanctions’ regime

8 Feb 2019

EU’s Horizontal Working Party on Cyber Issues is developing a sanctions regime to deter and respond to cyber-attacks, which builds on the EU Cyber Diplomacy Toolbox. An internal memo ‘Cyber Diplomacy Toolbox – Options for a restrictive measures framework to respond to or deter cyber activities that threaten the security or foreign policy interests of the Union or its Member States’ outlined a regime to sanction foreign hacker groups, involved in data breaches, intellectual property theft and stealing of classified information, attacks on IT and critical infrastructure, as well as election hacks, Bloomberg reports. Sanctions, which include asset freezes and travel bans, can be put in place regardless of the attack succeeding or not, if the victim is an EU country or an EU partner. Measures will, however, have to be accompanied by criminal evidences, defensible at the European Court of Justice, thus allowing prosecuted parties to appeal the decision. In addition, when imposing sanctions, unanimity will be required among EU member states. According to Politico, the plan will be forwarded to foreign affairs attachés, and the regime is expected to be in place before the elections for the European Parliament in May, in order to avoid possible interference with the elections.

Explore the issues

Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through Intellectual Property Rights (IPR), has become one of the predominant issues in the Internet governance debate. Internet-related IPR include copyright and trademarks. Copyright protects the expression of an idea when it is materialised in various forms, such as a book, CD, or computer file. The idea itself is not protected by copyright. In practice, it is sometimes difficult to make a clear distinction between the idea and its expression.

 

The copyright regime has closely followed the technological evolution. Every new invention, such as the printing press, radio, television, and the VCR, has affected both the form and the application of copyright rules. The Internet is no exception. The traditional concept of copyright has been challenged in numerous ways, from those as simple as ‘cutting and pasting’ texts from the Web to more complex activities, such as the massive distribution of music and video materials via the Internet.

The Internet also empowers copyright holders, by providing them with more powerful technical tools for protecting and monitoring the use of copyrighted material. These developments endanger the delicate balance between authors’ rights and the public’s interest, which is the very basis of the copyright law.

 

The issues

Amend existing or develop new copyright mechanisms?

How should copyright mechanisms be adjusted to reflect the profound changes effected by ICT and Internet developments? One answer suggested by the US government’s White Paper on Intellectual Property and the National Information Infrastructure is that only minor changes are needed in existing regulation, mainly through ‘dematerialising’ the copyright concepts of ‘fixation’, ‘distribution’, ‘transmission’, and ‘publication’. This approach was followed in the main international copyright treaties, including the Trade-Related aspects of Intellectual Property Rights (TRIPS) convention and the WIPO Copyright Treaty.

However, the opposite view argues that changes in the legal system must be profound, since copyright in the digital era no longer refers to the ‘right to prevent copying’ but also to the ‘right to prevent access’. Ultimately, with ever greater technical possibilities of restricting access to digital materials, one can question whether copyright protection is necessary at all. It remains to be seen how the public interest, the second part of the copyright equation, will be protected.

 

Protection of the public interest – the ‘fair use’ of copyright materials

Copyright was initially designed to encourage creativity and invention. This is why it combined two elements: the protection of authors’ rights and the protection of the public interest. The main challenge was to stipulate how the public can access copyrighted materials in order to enhance creativity, knowledge, and global well-being. Operationally speaking, the protection of the public interest is ensured through the concept of the ‘fair use’ of protected materials.

 

Copyright and development

Any restriction of fair use could weaken the position of developing countries. The Internet provides researchers, students, and others from developing countries with a powerful tool for participating in global academic and scientific exchanges. A restrictive copyright regime could have a negative impact on capacity building in developing countries. Another aspect is the increasing digitisation of cultural and artistic crafts from developing countries. Paradoxically, developing countries may end up having to pay for their cultural and artistic heritage when it is digitised, repackaged, and owned by foreign entertainment and media companies.

 

Knowledge and ideas are key resources in the global economy. The protection of knowledge and ideas, through IPR, has become one of the predominant issues in the Internet governance debate, and has a strong development-oriented component. Internet-related IPR include copyright, trademarks, and patents.

Trademarks are relevant to the Internet because of the registration of domain names. In the early phase of Internet development, the registration of domain names was based on a first come, first served basis. This led to cybersquatting, the practice of registering names of companies and selling them later at a higher price.

Cybercrime is crime committed via the Internet and computer systems. One category of cybercrimes are those affecting the confidentiality, integrity and availability of data and computer systems; they include: unauthorised access to computer systems, illegal interception of data transmissions, data interference (damaging, deletion, deterioration, alteration of suppression of data), system interf

Cyber-attacks can have a background in international relations, or bring about the consequences that can escalate to a political and diplomatic level. An increasing number of states appear to be developing their own cyber-tools for the defense, offence and intelligence related to cyberconflict.

The use of cyber-weapons by states - and, more generally, the behavior of states in cyberspace in relation to maintaining international peace and security - is moving to the top of the international agenda.

 

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