10% or more of the worlds prescription drugs are counterfeit and until now, not much has been done because most
of the counterfeit drugs have stayed in third world countries.  The EU and North America are now seeing the problem
so something is being done.  Pharma and law enforcement has woke up to the internet and how anyone can be anyone
and monetize counterfeit drugs, ANYWHERE!  40 countries have taken part in an international week of action targeting
the online sale of counterfeit and illegal medicines to raise awareness of the associated health risks, resulting in arrests
across the globe and the seizure of thousands of potentially harmful medicines.

Just last night I saw in shock the IBM commercial calling out the pharma problem, no one wanted to bring to the EU or North American public: 

Brand owners and eBay shared many a court date throughout the Aughts.  In Europe, the online platform was besieged by lawsuits in France, Germany, the UK, Spain and Belgium by luxury brand owners l'Oreal, LVMH, Hermes and Rolex, while on this side of the pond a high profile case launched by Tiffany in 2004 played out in the U.S.  At the end of the decade the outcomes of the cases were mixed.   In France in 2008 eBay lost two cases; one to Hermes and the other to LVMH. The French courts decided in favour of the rights owners, with eBay order to pay Hermes 20,000 euros while LVMH received 38.6 million euros.  eBay was found to be liable for infringement as the auction house was identified as a broker rather than a host of counterfeit goods.  A contradictory ruling was made in May, 2009 in the L'Oreal vs eBay case, also launched in France, where eBay was recognized as a host, rather than a broker, and along with that status was entitled to certain exemptions.  L'Oreal was found not to have proven infringement by eBay's promotional activities relating to its sale of advertising space.  In the L'Oreal Belgium case the Court of Commerce decided eBay had no obligation to monitor its site for counterfeits, while the Rolex decision in Germany echoed the sentiment stating eBay was not the seller of counterfeit goods, and only had the obligation to remove them once notified.  The saving grace for eBay is that they do remove auctions of counterfeit goods once notified.

I recently read a very interesting article from the New York Times by Kevin J. O’Brien titled E.U. Leaders Bolster Internet Access Protections and it really got me thinking about how just vital having access to the Internet is in this day and age, to the point where some government officials are considering it a basic human right. 

To quickly summarize the piece, on the fifth of this month (which is significant for reasons that will be explained later on) European lawmakers were able to reach a ‘middle of the road’ deal between governments that wish to create and implement harsh laws designed to combat online piracy and advocacy groups that believe that having access to an Internet connection is a human right.  The lynchpin of the agreement mandated that a legal review must be undertaken before anyone accused of engaging in online piracy offenses can have their Internet connection cut off.  Those in favour of the compromise were pleased that the deal had essentially made access to the Internet a legal right in Europe without sacrificing the authorities’ ability to prosecute those that are found guilty of committing online piracy crimes; although some advocacy groups were disappointed that the ruling did not go far enough to require a full on criminal trial before any action could be taken against alleged offenders.  But regardless of the perceived shortfalls of the deal it was generally considered a success. 

This ruling comes in the wake of attempts by the French Government to get a strict anti-piracy bill passed into law which would give French authorities the power to disconnect users from the Internet after a third piracy related offence.  There is also a similar movement in the United Kingdom spearheaded by the Business Secretary Lord Peter Mandelson.  In both cases the infringers would receive two written warnings before their Internet access would be disconnected upon being caught offending for the third time, without even as much as a legal review. 

The E.U. decision also came in the midst, quite literally, of the sixth round of negotiations regarding the Anti-Counterfeiting Trade Agreement in Seoul, South Korea, which is what I alluded to earlier in this post.  The main significance of this, as University of Ottawa Law Professor Michael Geist points out on his blog, is that the chapters of this agreement that focus on the issue of Internet enforcement are being drafted under a veil of heavy secrecy.  Some of the provisions in the agreement, that have been made public via a leaked document, would require that all signatories create, among other things: penalties both civil and legal for those that are found guilty of “internet infringements”, the establishment of “third-party liability”, and limitations on what are known as “safe harbour” rules for Internet Service Providers.  One of Geist’s biggest concerns with ACTA, albeit speaking strictly in the context of Canada, is that it would supersede any domestic IP legislation that is already in existence, provided any such legislation exists, and block any attempts to create new laws in the future; it must be noted that the European Union was represented in Seoul and will no doubt be present at the next round of negotiations which are slated to commence in January of next year in Mexico, so if the E.U. were to ratify this agreement all of the work the officials have done to create the safeguards outlined in the O’Brien article would, potentially be rendered useless.  Geist closes off one of his posts by saying that “it is clear that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea”, and to his point I may have to agree.

While I feel that having access to the Internet is becoming, if not already is, a basic human right it is important to note that like other basic human rights it should not exceed the boundaries of law; combating illegal online activities is a fight worth fighting but it must be tempered with provisions that prevent strict penalties and respect the concept of due process, especially considering that many of those accused of online piracy are presumed guilty.  The problem with this is that the Internet is still what I would consider a frontier in that laws that govern it are still being created and refined; in an ideal situation these laws would be impartial and uninfluenced by any outside force, but sadly as in ‘real life’ that is not a reality. 

I would love to know what others think of the notion that Internet access is a basic human right, and from both sides of the argument because I’d like to think I’ve presented a ‘middle of the road’ point of view.  It is truly a fascinating debate and one that we haven’t fully scratched the surface of quite yet.