Max Planck Institute for Foreign and International Criminal Law

Modern information technology and the associated digitalization have triggered an uncontrollable increase in product piracy. In light of the challenges posed by the digital age – which have pushed national systems of copyright law to the limit – one question arises: Are existing legal instruments up to the task of protecting digital goods and sanctioning copyright infringements?

This study of criminal copyright infringement law and its alternatives in Germany, Italy, and England identifies the legal and extra-legal measures available for the protection of digital works and the sanctioning of digital product piracy, examines the relationships between measures in the various fields of law, addresses the importance of extra-legal measures, and discusses the differences that remain between the three national legal systems despite international and European community requirements to harmonize laws. The results of this dissertation are based on a doctrinal analysis, whereby the respective norms of national copyright law and the international and European community requirements are first described and subsequently undergo a functional comparison.

This project shows that a wide variety of legal instruments are available in both the continental European droit d’auteur legal systems and the English copyright system and that these instruments have become increasingly restrictive in the recent past. It finds, however, that national legislatures accord the various legal fields different degrees of importance. In contrast, legislatures in all legal systems under study acknowledge the great importance of extra-legal measures and the need to provide such measures with legal protection. Today, civil and criminal law mechanisms for protecting digital goods and sanctioning infringements play the most important role in the struggle to curtail product piracy, while administrative and regulatory measures serve more of a catch-all function as, for instance, in the context of less serious offenses. Confiscation at the border under the aegis of customs law also has a limited area of application and thus cannot contribute – among other things – to efforts to combat digital piracy on the Internet. By means of civil compensation claims and restraining orders, copyright holders can achieve what are usually their top priorities: an end to the infringement and compensation for the damage suffered.

In comparison, criminal copyright infringement law has not lost its importance. The immense scope of counterfeit goods produced by digital product piracy and the resulting damage have led to a tightening of criminal norms and to their adaptation to the new technological conditions on a national level. The introduction of international minimum standards also highlights the relevance of criminal measures. In addition, extra-legal measures are essential for the curtailing of product piracy.

The application of digital rights management systems that effectively control the use of protected products has decreased recently due to damage caused by such systems and lack of acceptance among users. Awareness-raising campaigns that can bring about changes in consumer habits and have increasingly been carried out cooperatively by the private and public sectors are also important. Likewise, the development of new business models that enable the use of a wide range of digital services is an important prerequisite for the reduction of digital piracy.