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Thomas Hoeren on EUCD, Anti-circumvention and Lessig as Graham
posted by mpawlo
on Friday September 10, @04:56AM
from the interesting-people dept.
Is the DRM debate about religion rather than facts? Is Lessig a religous leader rather than a researcher? And why are Europeans so non-visible in the international copyright debate? Greplaw has picked Prof. Dr. Thomas Hoeren's brain.
Please be advised that Greplaw doesn't sponsor nor necessarily agrees with any views expressed by its interviewees. If you feel like contesting the views expressed herein, please use the comments function.
# Who is Thomas Hoeren?
I don't know that myself. People sometimes state that he is a law professor in
Germany, the director of the Institute for Information, Telecommunications and
Media Law in Muenster (Germany) and a part-time hudge at the Court of
Appeal in Dusseldorf specialised in intellectual property rights.
# What is the current status of the implementation of the European Copyright Directive in Germany?
The directive has been implemented on the 13th of September 2004. Thus,
Germany is this time one of the first countries in the EU to implement the
directive. In a lot of EU countries, including France, Sweden or Finland, there
are even no final drafts.
# Do you think that the implementation is good for creators?
No! It is good for the investors, big business, companies forcing the creators to
sign buyout contracts. In a situation where European copyright law shifts from
protecting creativity to safeguard the interests of investors the single creator is
losing importance. Walt Disney & Co. cry for an extension of copyright
extension - but not for the sake of creators.
# Will anti-circumvention provisions in copyright law provide for the production of more works?
I don't no - and in fact, nobody knows. The effect of these provisions on
creativity and the welfare of a society has never been evalutated. Therefore, the
discussion between the pro-DRM and anti-DRM people has features of a
# When we met in Stockholm you expressed some concern over the non-critical grasp of Professor Lessig's ideas. What is the problem with Lessig's ideas?
Difficult to say that in short sentences. First of all, I highly appreciate the
intelligence, innovativity, brightness of Lawrence Lessig; he is a brilliant
teacher, lecturer, writer. But he is primartily not a researcher, but at least became
at the end a kind of religious leader, a Graham for left (really?) winged
communitarists. If you read his recent books, you find a lot of strange
ambiguities (for instance, his reflections on commons in the middle age are not
too compatible with the historical sources). He mostly does not "know", but he
"believes" - although his "religious" ideas are often not expressed clearly. But
people believe in him; he is in fact a genius as to his rhetorics and his
# Why do you think the Europeans are so non-visible in the international debate on digital copyright and other Internet regulation issues?
First, US lawyers are very powerful in fighting for their copyright model in the
world. They often tend to believe that US law has "of course" and "naturally" to
be applied in all parts of the world. Europe does not have this "terminator
feeling". We have a tendency to stress the differences in legal systems, the
incompatibilty of different cultural values in regulating i.e. the internet. And we
are too self-referential focussing mainly on European or even national problems.
Thus, we are not trained as US lawyers are to enforce EU ideas on an
international level. If you attend to a WIPO meeting, you regularly see a lot of
well prepared top experts representing the USA - and a few EU representatives
who always complaint about being badly informed and prepared.
# How do you treat spam in Germany?
We have prohibited spamming under the regulations on unfair trade (ÃÂ§ 1 UWG).
A new opt-out element has however been integrated in our law by implementing
the EU directive on Electronic Communications. Opt-out models might be used
where a corporation wants to inform a customer about future products after the
cuszomer has already bought a product.
# Is it a good regulation in your opinion or should it be changed in any way?
I think the system is quite good. But the problem still is enforcing the rules.
How do we cope with all these nasty US spammers? What are you doing against
spam? I think the US legislators more and more complain about spamming - but
are their tools (opt-out in general; heading restrictions) really effective? I doubt
# How do you regulate freedom of speech on the Internet in Germany, is it any different from regulating freedom of speech in other media?
Too difficult to answer! In general, it is not different from regulating other
media. But there are additional problems, like restrictions enforced against
access providers etc.
# I know you have considered software liability. Should there be a lemon law for software?
If I correctly understood what that lemon law is meant to be yes. Strict liability
for software yes - in the same way as for other products. The clauses on liability
in the GPL on liability are undoubtedly invalid and void under European law.
# What is the purpose of your web site?
Inform people about the existing regulations in IPR, IT and internet. Create a
place with creative commons where people can read articles (see
"publications"), get access to relevant case law (see "Netlaw Library"), have a
platform for discussions (see "Netlaw discussions forum")
# You have published a lot of articles and most of them are available online from your web site. No copyright concerns?
Well, European copyright law is more author-friendly than the US one. WE can
regularly use old principles of Publishing Acts such as the German
Verlagsgesetz of 1909 to use our articles as an open content.
# If you would recommend Greplawers some other scholars than the usual suspects (Lessig, Litman, Fisher, Zittrain, Nesson etc), who should they read?
Jon Bing (NRCCL/Oslo)
Yves Poullet (Namur/Belgium)
William Dutton (OII/Oxford)
David Vaver (Oxford)
Peter Seipel (Stockholm)
Viktor Mayer-Schonberger (Harvard)
Monroe Price (New York or ?)
Herbert Burkert (St. Gallen)
...and, and, and. You know, Europe is so rich of interesting people (as well as the
Prof. Dr. Thomas Hoeren was interviewed by Mikael Pawlo. Please be advised that Greplaw doesn't sponsor nor necessarily agrees with any views expressed by its interviewees. If you feel like contesting the views expressed herein, please use the comments function.
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