International Protection of Intellectual Property Rights in the Light of the Expansion of Electronic Commerce

Abstract

The modern intellectual property rights (IPRs) have been premised on basic principles represented in granting the creators and other producers of intellectual goods and services certain time-limited rights to control the use made of their products, subject to certain exceptions and limitations. The term 'intellectual property' denotes copyright and rights relating to it and industrial property. Generally, copyright includes the rights of authors in their scientific and artistic works and the rights relating to them, such as the rights of producers, performance, producers of phonograms and broadcasting organizations in their performances, phonograms and broadcasts respectively. Industrial property includes patents, utility models, trademarks and service marks, trade names, industrial designs and integrated circuits, geographic indications, trade secrets, and the protection against unfair competition. IPRs have acquired increasing importance because they have become a major source of wealth, especially for developed countries, which are experiencing great economic transformations. The economies of developed countries have become knowledge-based economies, instead of the traditional industries. Moreover, the emergence of technologies such as the 44 Internet and electronic commerce, have brought further transformations in the field of IPRs. The Internet has facilitated the easy and perfect copying and transfer of intellectual property products worldwide, hence posing direct threat for their protection. On the other hand, the use of technical measures for the protection of IPRs threatens the lawful exploitation of these rights by the society members. This thesis discusses the international protection of intellectual property rights in the light of the expansion of electronic commerce. It contains ten chapters deal respectively with the historical development of the intellectual property law, the nature, purpose and scope of modern intellectual property rights, the challenge of the Internet, the regulation of electronic commerce, the conflict of laws implications for electronic commerce and intellectual property, the protection of copyright, trademarks and patens on digital networks and the impact of internationally harmonized IPRs on developing countries, in addition to a conclusion and proposals for reform. Chapter 1 discusses the historical development of the intellectual property law. It is divided into four parts. Part 1 traces the earliest stages of development of intellectual property rights, including prehistory forms of intellectual property rights, forms of intellectual property in the Greco-Roman Era, the Middle Ages and the 45 Mercantilist Period. Part 2 discusses the emergence of modern intellectual property law. Part 3 reviews the traditional legal system governing intellectual property rights. Part 4 examines the internationalization of intellectual property rights. It is divided into four subtitles including a background, the role of TRIPS in the international protection of intellectual property rights and beyond TRIPS developments. Beyond TRIPS developments include multilateral and bilateral treaties, regional instruments, and other developments. Also this Part discusses the role of litigation in the creation of new international intellectual property norms, whereby it reviews the views supporting national courts, WTO Panels, and Alternative Dispute Resolution mechanism. Chapter 2 studies the nature, purpose and scope of modern intellectual property rights. It is divided into four parts. Part 1 defines the term 'intellectual property' and enumerates the main categories of intellectual property rights and how new rights are created. Part 2 studies in brief copyright and neighboring rights. It is divided into four subtitles which examine copyright and neighboring rights, scope of protection, and exceptions and limitations. Part 3 reviews the industrial property rights. It is divided into seven subtitles which discuss the different aspects of the industrial property rights including patents, utility models, trademarks and service marks, trade names, 46 industrial designs and integrated circuits, and geographical indications, in addition to protection against unfair competition and trade secrets. Part 4 examines the justifications for, and, against intellectual property. Chapter 3 studies the phenomenon of the Internet, its potential evolution and expansion, its impact on the international society and the approaches for its regulation. It is divided into three parts. Part 1 studies the emergence of the Internet, and its evolution and potential expansion. It includes the definition of the term Internet and other related terms, how it works and its potential evolution and expansion. Part 2 discusses the positive and negative aspects of the Internet.Part 3 examines the approaches advanced for the regulation of the Internet. It discusses four approaches relating to the governance of the Internet viz., self-governace approach, regulation by means of the traditional legal system, governance through the control of the architecture of the Internet and a hybrid regulation approach. Chapter 4 examines some of the legal aspects relating to the regulation of electronic commerce. It is divided into six main parts. Part 1 discusses the opportunities and challenges of electronic commerce. It is sub-divided into three sub-titles including the definition of the term electronic commerce, its potential growth and the impediments confronting its future growth and expansion. Part 2 47 studies the theoretical approaches advanced for the regulation of electronic commerce. It is sub-divided into four sub-titles which discuss the different suggested approaches. Part 3 studies the formation of electronic contracts. It is sub-divided into five sub-titles involving the definition of the related terms and the discussion of the necessary elements for the formation of contracts such as offer, acceptance, consideration and intention to create legal relations. Part 4 examines the validity of electronic contracts in the light of the formalities required by law. It is sub-divided into three sub-titles, which discuss some of the formalities frequently required by law in paper-based environment and whether these formalities can be satisfied by a data message. Part 5 discusses the authentication of electronic documents. It is sub-divided into two sub-titles including the definition of related terms and a review of the approaches concerning the methods of authentication of electronic documents. Part 6 discusses the admissibility and the evidential value of electronic documents. It is sub-divided into two sub-titles discussing the admissibility of electronic documents as evidence and the weight accorded to such evidence. Chapter 5 studies the conflict of laws implications for electronic commerce. It is divided into three main parts. Part 1 deals with issues relating to jurisdiction. It is subdivided into two main subtitles which 48 discuss the general jurisdiction of courts, which is based on the domicile of the defendant, and the various cases of specific jurisdiction including jurisdiction on tortious acts, choice of jurisdiction, jurisdiction where there is no choice and jurisdiction on disputes involving consumers. Part 2 discusses the governing law. It is divided into four subtitles which study the applicable law where there is choice of law and where there is no choice and the limitations on the choice of law, in addition to the study of the law applicable for infringements cases. Part 3 discusses the enforcement of rights. It is divided into four subtitles which study the need for effective enforcement in the Internet era, the difficulties relating to detection of infringements and identification of wrongdoers, the insufficiency of the traditional means of enforcement and the attempts made to date in relation to enforcement including technical devices, alternative disputes resolution and direct enforcement. Chapter 6 discusses the impacts of electronic commerce on the international protection of copyright and related rights and whether the existing legal system can be adjusted to respond to this technological challenge effectively and efficiently, so as to safeguard the furtherance of the guiding principles of copyright and related rights. It is divided into three main parts. Part 1 studies the scope of the rights of authors on digital networks. It is divided into two subtitles discussing the 49 exclusive economic rights and moral rights of authors. Part 2 studies the protection of copyright and related rights works disseminated over digital networks. It is divided into four subtitles which discuss the infringement of copyright and the related rights and the legal status of the Internet Service Providers, the private international law aspects of copyright and related rights, the protection of copyright and related rights through technical measures and the legal protection of such technical measures. Part 3 examines the future of the traditional copyright exceptions and limitations on digital networks. It is divided into two subtitles which study the scope of the traditional exceptions and limitations and the impacts of the electronic rights management systems on those exceptions and limitations. Chapter 7 discusses the current problems facing the protection of trademarks rights on digital networks. It is divided into three main parts. Part 1 studies the registration of trademarks as domain names. This part is sub-divided into six titles comprising the definition of domain names, the problems generated by the registration of trademarks as domain names, the role of the Internet Corporation for Assigned Names and Numbers (ICANN), the recent developments relating to domain names, the future of ICANN, and the settlement of disputes between domain names holders and trademarks owners. Part 2 discusses other forms of practices on the Internet that proved to be 50 detrimental to trademarks rights. This part is sub-divided into five titles dealing with the use of trademarks as meta tags or keywords or in framing and linking, pop-up advertisements, and mouse-trapping. Part 3 clarifies the clash between the principle of territoriality, upon which the traditional trademark law has been based and the global nature of the Internet. It is divided into four subtitles which discuss the requirement of ‘use’ for the acquisition and maintenance of trademarks rights on the Internet, the co-existence of trademarks on digital networks, jurisdiction over infringements online and the extent of remedies in infringement actions. Chapter 8 discusses the protection of patent rights on the digital networks. It is divided into six parts. Part 1 discusses the patentability of electronic commerce-related inventions. It is divided into two subtitles, which study the patentability of software and business methods. Part 2 discusses the different views in favor of, and, against patenting business methods and software. Part 3 studies some views advanced for dealing with electronic commerce-related inventions. It is sub-divided into two titles discussing the various suggestions. Part 4 discusses the impact of the narrow application of the doctrine of equivalents on the scope of business methods patents. Part 5 examines the scope of prior art for electronic commerce-related inventions. Part 6 studies some private international law issues relating to patents law. 51 It is divided into three subtitles discussing jurisdiction, applicable law, and recognition and enforcement of judgments. Chapter 9 discusses the potential of electronic commerce for developing countries and the ongoing move towards internationally harmonized intellectual property rights, their implications for developing countries and the strategic policies that should be adopted by developing countries to face any accompanying challenges. The chapter is divided into four main parts. Part 1 reviews the potential of electronic commerce for developing countries. It is divided into two subtitles discussing the opportunities and challenges in this respect. Part 2 reviews the different arguments for, and, against the move towards internationally harmonized intellectual property rights. It includes two subtitles which discuss the arguments of the supporters and opponents of internationalization. Part 3 examines the implications of strengthened IPRs for developing countries. It is divided into two subtitles discussing the costs and benefits of strong IPRs in relation to development generally and access to the Internet and electronic commerce in particular. Part 4 discusses strategic policy issues for developing countries. It is divided into four subtitles examining the technical and capacity gaps in developing countries and the necessary safeguards for developing countries in order to fill these gaps. It identifies gaps in four areas need to be filled by developing 52 countries viz., understanding the concepts, issues, benefits and risks of intellectual property protection; implementing and complying with existing commitments; managing and influencing on-going negotiations on further commitments; and making and developing strategies and setting the agenda for the future. Chapter 10 is a conclusion and proposals for reform. The conclusion summarizes the previous chapters. The proposals for reform recommend for the conclusion of an international agreement in order to solve the problems relating to conflict of laws, which have been exacerbated by the emergence of the Internet. However, as far as intellectual property is concerned, the success in concluding such an agreement depends on international agreement on related issues such as the regulation of the Internet and the adoption of acceptable substantive intellectual property rights. In this respect this Study recommends for collective administration of the Internet under the auspices of the United Nations. Moreover, a successful international agreement on substantive intellectual property rights necessitates the removal or lessening of the conflict of interests of the stakeholders. This, in turn, requires the increase of development rates for developing countries, through different means including direct financial support, transfer of technology, encouragement of direct foreign investment, and adoption of intellectual property laws 53 conducive to innovation and competition. Developed countries should not exercise pressures on developing countries and should stop the ongoing campaign for imposing on developing countries intellectual property laws not acceptable by them. They should, instead, provide developing countries with the financial and technical support they need and work with them to achieve the common interests of all parties