Information technology in intellectual property law - Problem solving or window dressing?

The application of information technology in society has inspired many (supra-national) legislators to adapt existing legislation to meet the challenges created by new developments in the 'information society'. Since information processing systems - or rather data processing systems - form the very foundation of this 'information society', it is not surprising to see that many legislative initiatives have been undertaken in the field of intellectual property rights. These initiatives, however, often seem to be concentrated on information technology itself rather than on the social problems that may have arisen from it. In this article, a number of EU directives in the field of intellectual property will be discussed. With an emphasis on peer-to-peer file sharing, it will be argued that new legislation with respect to IT products, such as 'chips', software and databases, as well as the attempt to create a more general harmonization of copyright, the 'internet directive' [EC directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society OJEC L167/10; 22 June 2001], has led to 'disharmonization', while the social problems arising from information technology have hardly been dealt with. The conclusion is that, to effectively harmonize IT law in different countries, we should not concentrate on the harmonization of legal concepts, but rather on reaching an agreement on the interpretation of legal notions in relation to technical notions. Should such an agreement emerge, the extensive legislative initiatives described in the paper would probably no longer be necessary.

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