Onderwerp: Bezoek-historie

On the Protection of Intellectual Property in Cyberspace under International Humanitarian Law

Dit onderwerp bevat de volgende rubrieken.

Mr Joost Bunk LLM1

Modern day information societies are digitalizing continuously and the production of intellectual property is becoming increasingly important for their economic sustenance. Equally there is an increasing number of cyber-operations, leading to an ever growing interest in developing cyber-capabilities. Former Director of the U.S. Cyber Command General Keith B. Alexander characterised cyber-operations designed to gain access to the intellectual property of American corporations as the “greatest transfer of wealth in human history”. These developments raise questions as to how international humanitarian law can address these cyber-operations.

One of the aforementioned questions is the focus of this presentation: the protection of intellectual property in cyberspace under international humanitarian law. Intellectual property can be defined as the novel product of human intellectual endeavour. Intellectual property rights, copyrights, patents and trademarks, therefore protect intangibles, a concept which raises a great variety of challenging questions in domestic law, human rights law and international humanitarian law.

Since it is clear from the start that there are no specific rules on the protection of intellectual property under international humanitarian law, the possible protection of intellectual property through the already existing protection of “normal” property will be explored. In order to achieve this, the concept and the development of the protection of property under the various instruments of international humanitarian law will be discussed first. Following this the scarce coverage of intellectual property in international humanitarian law will be discussed. But firstly, since intellectual property law and international humanitarian law are fields of law that do not often meet, the paragraph will start with a crash course in intellectual property law.

The term intellectual property has been used for over one hundred and fifty years to refer to the general area of law that encompasses copyrights, patents, trademarks and as well as a host of related rights for objects such as databases and software. Intellectual property law regulates the creation, use and exploitation of mental or creative labour. Intellectual property is, as pointed out previously, the novel product of human intellectual endeavour. Intellectual property rights therefore protect intangibles and this gives rise to questions over the control of the property and its protection.

For the purpose of this presentation it is important to note that three notions are therefore involved when it comes to intellectual property. The first notion is intellectual property, the intellectual labour which is the intangible concept of a creative work. Secondly, this intangible concept is only protected when it is confined in a produce, may it be a statue or a digital picture, it has to go beyond existing solely in the mind of the creator. Lastly, depending on the respective intellectual property law the creator is given certain intellectual property rights. These rights, the exploitation or economic rights are possessions and can be transferred to others.

The already complicated field of intellectual property law is becoming more complicated by the so-called “propertization” of intellectual property. In a growing trend human right courts and human right treaties are acknowledging that intellectual property should be afforded the same protection as tangible property. This acknowledgment was already present in the Universal Declaration of Human Rights of 1948, but only recently the effects of such acknowledgement have been developing. In its Article 27(2) it states: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The ECtHR stated in Anheuser Inc. v Portugal that “intellectual property incontestably enjoys the protection of Article 1 of Additional Protocol No.1 ECHR. With regard to this it is interesting to note that the French version of Article 1 of Additional Protocol No. 1 uses the term “biens” while the English versions uses “possessions”, a definition and translation point also raised by Macak herafter.

These findings resulted in an extensive academic debate and the effects have not yet crystalized completely. However, it can be argued that a consensus exists that when discussing intellectual property as “normal” property, neither the abstract intellectual produce is meant, nor the produce itself, but the intellectual property right attached to it. In other words: the intellectual property right deserves the same protection as other property. Interestingly, while intellectual property rights play an important role in the development of digital technologies and therewith shaping the nature of cyberspace, cyberspace in return creates a threat to intellectual property rights. The sheer fastness of cyberspace, availability of protected works online and the relatively easy way of violating of intellectual property rights by i.a. copying has resulted in a rampant violation of intellectual property.

I am well aware of the fact that terms, norms and principles found in domestic law, intellectual property law and human rights law cannot be implemented in international humanitarian law without paying due regard to the context. However, the limited scholarship on international humanitarian law and intellectual property provides no clarity and references to other bodies of law are solely made to shed light on the idea of intellectual property.

The legal instruments predating Additional Protocol I used the term “property”, while Additional Protocol introduced the term “civilian object”. This choice was politically motivated to conciliate different political systems. This introduction initiated a definition discussion, which appears to be settled by means of reference to the tangibility requirement. The term “civilian object” is broad enough to encompass the immovable and movable property found in the previous legal instruments, provided that they are visible and tangible. The Experts follow this requirement for objects in cyberspace, thereby excluding objects solely existing in digital form from the definition.

The Military Tribunal ruled in the Krupp/I.G. Farben Trials that intangible property deserves the same protection as “normal” property. Despite not being explicitly mentioned by the Tribunal, Dinstein and Dinniss argue that this also applies to intangible objects and to intellectual property rights. It should be noted that the Military Tribunal ruled this in a property offences paradigm i.e. under the rules of booty, seizure, destruction, pillage and plunder.

The fact that the produce, the digital object, is protected under the property offences paradigm illustrates why the strict tangibility requirement in the targeting paradigm can be considered an inconsistency. The digital object is protected from wanton destruction, but falls outside the scope of civilian objects and is therefore outside the scope of protection provided by the principle of distinction and does not have to be taken into account in the principle of proportionality, making it a legitimate target and potential object of destruction. Evidently, there is a distinct level of protection in both paradigms, stemming from the tangibility requirement introduced by the term “civilian object”, which in its turn is introduced to circumvent political debate. If the purpose of international humanitarian law is to mitigate civilian suffering by extending protection to property, the exclusion of digital objects is problematic. Especially when taking into consideration that the term was introduced to forfeit political debate and not to deprive intangibles from their protection, which during the drafting of Additional Protocol I was a common legal concept.

It was found that introducing the term “civilian object” led to a disparity within the two paradigms that are part of one body of rules of international humanitarian law. The protection against property offences is depending on the proprietary relationship: if it qualifies as property, tangible or intangible, and is privately owned, it falls under the protective scope of the relevant provisions. The protection in the targeting paradigm is depending on the civilian use of the object and the object must be visible and tangible. While this more restrictive protection flows from the introduction of the term “object” and its definition, it results in a disparity of protection: intangible objects are protected in the property offences paradigm, but not in the targeting paradigm. This disparity especially manifests itself with regard to cyber-operations taking place and only having effect in cyberspace.

A question for further research is if the intangible object can be afforded protection as property under the Krupp/I.G. Farben interpretation. It appears prima facie that this is possible since the Trials refer to intangible property, especially when considering the protection of this digital property under human rights and domestic legal systems. Subsequently, it is of interest to know whether this digital property then also can be considered a civilian object. Since the tangibility requirement is now limiting the protection of civilians in cyberspace, it is worthwhile to explore. This would then in turn render the omnipresent prefix “cyber” superfluous and provide civilians with adequate protection, irrespective of the dimension.

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