Against the background of the global spread of product and services piracy in the information society, this project analyzes the question of whether, given the newness and complexity of the problems posed, legal instruments that are more flexible are necessary in order to ensure the continued protection of digital goods. Both criminal copyright law as well as other existing legal and extra-legal measures that strengthen the protection and the enforcement of copyright law will be analyzed.

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.