New technology and Belgium

Is the Belgian legal system light-years away from understanding or using basic contemporary technology, and therefore uniquely disqualified to rule on any IP issues around such technology?

The Court of Appeal of Antwerp, Belgium’s second city, ruled on a request to block access to the Pirate Bay website on 26th September 2011. Many people have reported this decision and have commented on it.

However, don’t try to find the decision online on any official government or court website. It isn’t available. For those of you who are interested, I’m posting a downloadable copy BAF-TPB-Telenet-Belgacom-Antwerpen-arrest.

When I wanted to obtain a copy to blog about it, I rang the clerk of the court’s office, to request a pdf copy, because I had been unable to locate the decision online.

The woman who picked up the phone informed me, very friendly and efficiently, that no court rulings are made public online, except for some specific ones, selected on a completely random and unpredictable basis by each specific court chamber president.

No emails can be sent or received, because they are “not equipped” to deal with them. Oh, and most people who work in the courts don’t have Internet access.

This is in the country where the capital of the European Union is located, in the second decade of the 21st century.

You wouldn’t make it up – but this is the sad reality of Belgium’s court system. No use of technology, no transparency, no accountability.

It does make one wonder about the credentials of independence and impartiality of a justice system that does not provide any information to its funder, the taxpaying public.

And of course, the issue goes much further. Court cases decide daily on interpretation of matters such as tax law, commercial law, and other rules of engagement of, among other things, the economy and trade. Not providing this essential information in real time effectively delays and prohibits the value of the court systems’ function to be absorbed by society. It is very obvious that this costs business a lot of money, because information that should be freely available, is now charged at a premium, because of the inefficiency of the public sector.

How did I manage to get a copy? By email, from a lawyer I know, who got it through email as well.

As one would expect, such use of information technology do not bode well for the possibility that this same court system would understand the finer details of technology, downloading, peer-to-peer networks, and their effect on copyright and freedom of speech.

So, as to the decision itself. My appreciation is that the blogs and articles mildly laughing at the decision for seeming technically illiterate (banning the use of “”, but not the use of “”) are not quite correct: the Court seems to know what it’s doing in terms of the technical irrelevance of its decision.

A number of aspects are interesting. The first is that the Court seems to imply that, because the measure it imposes is technically irrelevant and easily circumvented, the measure meets the proportionality requirement. That seems a rather bizarre way of addressing the proportionality requirement.

The second is that the Court seems strangely unconcerned about the fact that the measure would also block the sharing of material that is not under copyright, in the public domain, or under licenses that allow sharing, such as e.g. creative commons. The reasoning used is similarly bizar: users would be able to share those through other means than the Pirate Bay – in other words, because the measure is inefficient in blocking “piracy”, it doesn’t matter very much that it also prohibits (partially) sharing of material under freedom of speech.

The third is that the Court does not address the issue of censorship at all – which is a great pity. The balance between freedom of speech and copyright is a core issue at the heart of this discussion – and the Court refuses to take it into consideration, other than stating that copyright is a fundamental right (which, if confirmed, would be a rather revolutionary statement), and that no other fundamental rights are affected by its decision to – on purpose inefficiently – block access to a website.

It seems here that the Court is having its cake and eating it too. It allows in principle that websites enabling users to swap material, part of which may be copyright-infringing (but without the copyright owner or its assignee having any duty to establish they have such copyright and that there is actual infringement, and not fair use or other allowed use), and part of which may not be copyright-infringing, can be blocked in general. But since such blockage is – on purpose – not made very efficient, it is not really an issue for censorship or free speech.

Again, you wouldn’t make it up.

On the other hand, if appealed, it would make for some interesting debate. It would be a great pity if issues such as whether copyright is promoted from a limited monopoly to a fundamental right are treated as obiter by a rather incompetent Court of Appeal.

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