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and regulatory issuesLegal
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CONTENTS:
Net Law | Europe | EU e-commerce legal framework | EU report on US trade 2000 | French report on Internet regulation | Electronic Commerce Legal Issues Platform (E-CLIPII) | The Journal of Information, Law and Technology | Internet law enforcement | Music downloading - stealing? | Online advertising law | Meta tags: "invisible" Trademark infringement | The "value" of domain names | UK employee sacked for surfing the Net | Action against MP3 fails | Germany | Protection for human dignity in new audiovisual information services | United States | Internet identity theft addressed | US Internet 'Decency' legislation (CDA) | US Communications Decency Act rejected | Pornography on the Internet | Software patents | Resources
With the development of the global interactive electronic publishing market the legal framework within which it is developing is increasing in complexity. The different regulatory positions within national boundaries and the challenges to these being made by electronic commerce will have significant impacts on how the Information Society will be allowed to develop.
The European Commission has welcomed the European Parliament's approval of the Electronic Commerce Directive, which clears the way for this important measure to become law within the next 18 months. The Lisbon Summit identified this Directive as a top priority in preparing Europe's transition to a knowledge-based economy and boosting competitiveness.
It establishes specific harmonised rules to ensure that businesses and citizens can supply and receive Information Society services throughout the EU, irrespective of frontiers. These areas include definition of where operators are established, transparency obligations for operators, transparency requirements for commercial communications, conclusion and validity of electronic contracts, liability of Internet intermediaries, on-line dispute settlement and the role of national authorities.
In other areas the Directive builds on existing EU instruments which provide for harmonisation or mutual recognition of national laws.
Interestingly the Directive defines the place of establishment as the place where an operator actually pursues an economic activity through a fixed establishment, irrespective of where web-sites or servers are situated or where the operator may have a mail box. The full release outlining the directive is available online at the URL below. 19/05/00
URL: http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/00/442%7C0%7CRAPID&lg=EN
The European Commission has published the 2000 Report on United States Barriers to Trade and Investment, the sixteenth such annual report. The European Commission is attaching the utmost importance to the emerging sectors and in particular information technologies. European and foreign-owned firms seeking access to the US market for communication services still face considerable barriers, particularly in the satellite services and the mobile services sectors.
This situation is not in line with the market access policy advocated by the US, and provides a competitive advantage to the significant number of US companies that have already access to the European market in these fields.
Furthermore, the Commission has identified a number of US laws and policies on Internet and electronic commerce which could impact negatively on the business of European companies, particularly in the fields of Internet domain names and cybersquatting, encryption and patentability of software and business methods. 04/08/00
URL: http://europa.eu.int/comm/external_relations/us/trade_barriers_report_00/index.htm
Christian Paul delivered his final report on regulation of the Internet, "Du droit et des libertés sur l'internet", to the French Prime Minister 29th June, 2000. The report is available online at the French government web site which also contains the various submissions by interested parties.
The report proposes the creation of a "Forum des Droits sur l'internet" to control regulation. 28/07/00
URL: http://www.internet.gouv.fr/francais/textesref/pagsi2/lsi/coregulation.htm
El.pub has received details of the activities of the Electronic Commerce Legal Issues Platform (ECLIP II). ECLIP II is an IST project (KA II) that seeks to fill the gap between the complexity of legal constraints and the development of e-business.
One of the main objectives of ECLIP II is to provide education and information on the regulatory framework of e-commerce and to provide legal support to IST projects. Details concerning the kind of legal support ECLIP II can provide is available from the project. Typically the fields covered include: Intellectual Property Rights (IPR), Taxation, Privacy, Liability, Consumer Protection, Contract law, International Private Law, Electronic Payments.
The project also plans to organise workshops to explore the issues, the first two are entitled "Internet Regulation" and "IPRs and domain name issues".
Further details concerning the ECLIP II, and the agendas for the workshops are available from the project web site. 23/05/00
The Journal of Information, Law and Technology (JILT) contains a diversity of topics and includes refereed articles, commentary, IT reviews, book reviews, conference reports and work in progress.
URL: http://elj.warwick.ac.uk/jilt/
URL: http://elj.strath.ac.uk/jilt/
The emphasis the October 1999 issue of JILT is on innovations in communications and information technology in legal education. It is intended to contribute to the debate concerning the link between pedagogy and technology. Refereed articles include:
- "But What is it Good For? Using Interactive Video in Legal Education and Law Practice";
- "Computerising Legal Education: What's in Store?";
- "Evaluation of an Internet-based PgDL (CPE) Course";
- "Use of IT for Knowledge Management in Law Firms".
The issue also includes a number of commentaries and book reviews on related concepts.
URL: http://www.law.warwick.ac.uk/jilt/99-3/
URL: http://elj.warwick.ac.uk/jilt/issue/1999_3/
The vast majority of those who use the Internet to download music files in the US do not believe they are stealing, even if the music is copyright protected, according to a new survey by the Pew Internet & American Life Project. Seventy eight per cent of those who download music don't think it is stealing to save music files to their computer hard drives and 61% of downloaders say they do not care if the music they capture is copyright protected. Further information from the Pew web site. 10/10/00
URL: press release http://www.pewinternet.org/releases/release.asp?id=7
The Internet Alliance have published a white paper addressing international approaches to cyber crime. Entitled, "An International Policy Framework for Internet Law Enforcement and Security", it is the second in series aimed at: "Building Consumer Trust and Confidence in the Internet Age."
The white paper is founded on IA's conviction that consumer trust and confidence are essential if the Internet is to become the leading consumer medium of the 21st century. "Events like February's 'denial of service' attacks, and the 'Love Bug', remind us that criminal activity online is not constrained by geographical boundaries," said Jeff Richards, Executive Director at the Internet Alliance.
"Last month we published an introductory consumer white paper that established principles for promoting consumer confidence and trust in the Internet," said Andrew Mathews, Communications and Research Manager at the Internet Alliance. "This paper takes those principles and defines the proper roles of law enforcement, industry and consumers in addressing crime on the Internet." 31/05/00
URL: white paper http://www.internetalliance.org/policy/leswp.html
URL: Internet Alliance http://www.internetalliance.org/
Hall Dickler Kent Friedman & Wood, a New York and Los Angeles law firm specialising in advertising, marketing and new media, run the ADLAW Web site. The site offers resources including sample advertising and Internet contract forms, and a handbook of key advertising issues. It also has links to the "Internet Advertising/Marketing Law Report" and "cyberlaw" resources.
URL: Adlaw http://www.adlaw.com
URL: "Internet Advertising/Marketing Law Report" http://adlaw.ljx.com
URL: "cyberlaw" resources http://www.adlaw.com/RC/rf_cyber.html
There are a number of well-documented cases of domain name registrations which have been deemed to infringe company copyright law, but more recent cases have been concerned with companies embedding the trademarks or brand names of competitors as keywords in the metadata of their websites. The implication is that public Internet search engines, which use the metadata keywords in their indexing, will point to sites of both the brand name or trademark owner and the pages of their competitor which feature the brandname or trademark in their metadata.
In a US case, reported in the online "Law Journal Extra", National Envirotech Group, a "trenchless" pipeline maintenance company allegedly used the trademarks of its competitor, Insitufrom, hidden in its own site's meta tags. Since their site also included some of Insituform's marketing materials, users were not pointed to NEG's site, but led to believe that they had some connection with Insituform.
URL: "Law Journal Extra" http://www.ljx.com
The Journal of Information Law and Technology (JILT) has published a refereed article entitled: "What's in a (Domain) Name? Web Addresses as Loan Collateral". The article considers whether it is possible for a financier to take any form of security, or "quasi-security" over a business' Internet domain name.
URL: JILT http://elj.warwick.ac.uk/jilt/
URL: What's in a (Domain) Name? http://www.law.warwick.ac.uk/jilt/99-2/lipton.html
The BBC Online Network has run an article which reports on a UK industrial tribunal that found that an employee was fairly dismissed for surfing the web during office hours. While the ruling was made in a tribunal and therefore does not establish a legal precedent, UK employers' organisations have advised companies to set out clear Internet usage policies for employees. The full report is available online, at the address below.
URL: http://news.bbc.co.uk/hi/english/uk/newsid_370000/370462.stm
In a move to protect the creative content of the music industry, the Recording Industry Association of America (RIAA), joined by the Alliance of Artists and Recording Companies, filed a complaint against San Jose-based Diamond Multimedia. The RIAA charges that Diamond’s portable MP3 recording device, Rio violated the US Audio Home Recording Act (AHRA), and in doing so, encouraged consumers to infringe the rights of artists by trafficking in unlicensed music recordings on the Internet. The complaint, filed in the Federal District Court for the Central District of California, failed.
Apparently the RIAA has been attempting to shut down infringing Internet sites that illegally traffic in copyrighted music. In one afternoon alone, the RIAA uncovered as many as 80 MP3 sites containing a total of more than 20,000 MP3 files, virtually all of which were unlicensed music recordings of American artists. The RIAA has been concerned about the recent development of MP3 portable recording devices because they capitalise on, and may exacerbate the problem of, illegal MP3 music files. Industry observers remain doubtful that there would be a market for portable MP3 recording devices but for the thousands and thousands of illicit copies of songs on the Internet.
URL: RIAA http://www.riaa.com/
URL: Diamond Multimedia http://www.diamondmm.com
links on netlaw generally (includes non-German links)
URL: http://www.uni-muenster.de/Jura/itm/netlaw/
The Information Technology Law Unit (Queen Mary & Westfield College University of London, UK) web site includes a few papers published by members of the unit.
The Software & Information Industry Association (SIIA) of the US has released a white paper entitled "Internet Identity Theft: A Tragedy for Victims". The report provides analysis of Internet identity theft from consumer, web site operator, and public policy perspectives.
Topics covered include Internet identity theft prevention, case studies and best business practices concerning the role of privacy and security policies. The white paper is accessible via the URL below.
The SIIA represents more than 1,000 high-tech companies that develop and market software and electronic content for business, education, consumers and the Internet. 27/06/00
URL: http://www.siia.net/divisions/ebusiness/default.asp
URL: SIIA http://www.siia.net/
El.pub reader Sara Long kindly provided the following link: LegalMatch a US based site aimed at helping users find a lawyer has a very useful library of law-related resources including: "Lawyer Library: Guide to Cyberspace Law".
A number of US sites track developments in Internet "decency" legislation. Most qualified observers believe that the Internet will be defined largely through the use of metaphors. Through these it is hoped that freedom of speech will be maintained whilst at the same time regulating anti-social activities. Metaphors suggested range from:
- a public park where the US Constitution protects all manner of speech
- a radio station where there are much stricter controls on freedom of speech
"Reversal of Fortune?" provides a rounded description of the current situation, providing links to additional sources.
- Electronic Frontier Foundation (EFF)
URL: http://www.eff.org- The American Civil Liberties Union
URL: http://www.aclu.org/- Electronic Privacy Information Center (EPIC)
URL: http://www.epic.org/- Blue Ribbon Campaign for Free Speech
URL: http://www.eff.org/br- "Reversal of Fortune?"
URL: http://www.hotwired.com/netizen
Child exploitation both by making pornography available and in its creation, is a subject that is exercising the minds of many legislators, particularly in the US.
The Home Office in the UK organised a meeting of experts to consider the situation and this is reported on a UK Home Office Web site. One of the links from the site includes a report on what was found, which puts the reality in perspective.
It has to be said that a general impression (from an occasional survey of Usenet groups that might be expected to carry child pornography) is that since the ruling on the Decency Act in the US there has been an increase in such material in the news groups. However, the main source is probably BBS (that are not part of the Internet, being direct dial systems) that are more difficult to control.
"Legal resources and tools for surviving the patenting frenzy of the Internet, bioinformatics, and electronic commerce", is how STO describes its web site and new service. Its message should be a timely reminder to European legislators that US example is not to be followed in all cases.
The US PTO is about to be spun off from the Commerce department, at least partly because of the mess it has made of software patents, and there is consideration of changing the US patent system to one closer to the European adversarial system. 14/04/00
The World Wide Web Consortium (W3C) is investigating the status of a patent claim which it claims in a press release: "threatens open access to privacy protection technology known as the Platform for Privacy Preferences (P3P)". To aid in its investigation, W3C is calling on the "web community" for help in locating "prior art", technology whose existence could be relevant to the validity of the patent.
P3P, under development at the W3C, is designed to keep users informed of sites' privacy practices, allowing them to control what information they choose to disclose to a web site, as well as how that information may be used. P3P privacy disclosures and requests for information are expressed in Extensible Markup Language (XML).
The W3C's concerns centre on Intermind, who has recently received a US patent, and has indicated that the patent may be infringed upon by W3C metadata standards, particularly P3P.
Recent software patents have been challenged by the web community because technology that the patent holder claimed was original, and deserving of patent protection, had actually been invented and disclosed prior to the patent application. Challenging patents by identifying pre-existing technology, referred to as "prior art", often has the effect of invalidating a patent altogether, or narrowing the scope of its claims.
W3C has begun researching the validity and applicability of this patent, and is seeking information concerning any software or systems that predate the Intermind patent. Further details are available on the web.
The UK's IEE Forum site has published a paper entitled: "Patenting Computer Software" which considers patents for software which are obtainable under more restricted conditions in Europe than the US. This paper looks at the conditions under which such patents are obtained and the steps that are being taken by the European Commission to change the patent law in Europe and to publicise the commercial benefit of getting patents for software. The site also runs a brief weekly news section, and email alerter service to this is available.
The news section ran an interesting story this week, concerning the UK ISP Virgin Net who are apparently taking legal action against one of their users who has been using their email account to spam potential customers. According to the report, Virgin Net is taking the action following receipt of numerous complaints against the user company.
To access the information on the site a password and user name are required, both available free of charge in exchange for limited personal information.
URL: IEE Computer Forum sign-up http://forum.iee.org.uk/
URL: Patenting computer software http://forum.iee.org.uk/forum/library/view.cgi/1999_04/blakem/blakem.htm
URL: News http://forum.iee.org.uk/forum/news/
The European Commission's IPR Helpdesk issued the following communication concerning a single patent for Europe, which we publish verbatim.
"Establishing a European area of research and innovation is a key objective to ensure economic growth and accompanying employment within the Union. At the recent European Council meeting in Lisbon the conclusions highlighted one aspect of this objective that of securing a Community patent for Europe.
"The idea of a single patent for Europe is not new. The Treaty of Rome in 1958 provided the economic and political framework under which to bring forward the idea of a European Patent. As a result the six countries of the European Economic Community (EEC) drew up the first European patent project in 1960. This first attempt failed, but in 1968 three countries, France, Germany and the Netherlands, revived the idea of the European patent by dividing the initiative into two parts. First there was to be a convention open to all countries which defined a common grant procedure and secondly a convention defining the Community patent which was to be effective throughout all EEC Member States."
"The current European patent system is governed by the Munich Convention. This system established a common patent procedure that covers up to 19 European countries. The very first European patent was filed in 1977 and since then close to one million European patents have been filed. The idea behind the original Community patent, which at this time does not exist, was that it would be granted following a common procedure similar to the current European patent."
"The need for patent reform was highlighted during consultations on the Green Paper on Innovation (see URL below) and on the Community patent (see URL below) . It has now become a key issue for the R&D community in Europe. Enterprises, research centres, universities which want to secure their inventions through patents have to cope with a patent system in Europe that is seen as complex and expensive. This is particularly striking for companies operating in the US where the patent system is much less expensive and where a single patent automatically covers the whole market. This situation appears more and more inconsistent with a single European market and a single European currency."
"The Lisbon conclusions announcing the intention to have a Community patent by the end of 2001, which is simple and inexpensive to obtain, will surely benefit Europe's innovation community and SME's in particular."
More information regarding this and all other aspects of Intellectual Property Rights in Europe are available from the IPR-Helpdesk website or by sending an e-mail to the address below. 04/04/00
URL: Lisbon European Council meeting conclusions http://europa.eu.int/council/off/conclu/mar2000/index.htm
URL: Green Paper on Innovation http://europa.eu.int/en/record/green/gp9512/ind_inn.htm
URL: Community patent http://europa.eu.int/comm/internal_market/en/intprop/indprop/index.htm
The OECD International Regulation Database is a comprehensive and internationally-comparable set of information about the state of regulation and market structures in OECD countries. For each Member country, it contains over 1100 observations, both quantitative and qualitative. The areas covered are economy-wide regulations concerning product markets:
- state control of business enterprises;
- legal and administrative barriers to entrepreneurship;
- barriers to international trade and investment;
competition policies and sector-specific regulations, regulatory settings and industry or market structures in:
- telecommunications (local, trunk and international fixed telephony; analogue and digital mobile telephony);
- transportation (road freight; air passenger travel; rail);
- electricity supply; retail distribution.
The database is in EXCEL and ACCESS formats. 30/08/00
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