Closely related to content legislation is the issue of protection of intellectual property rights associated with the growth of ICT use. In an era of electronic commerce, the sale and exchange of copyrighted material in digital format must be protected in order to ensure the continued investment and development of the ICT sector. Digitalization of information results in new risks for holders of copyright and related rights in their works, but also makes it potentially easier to administer and control acts of exploitation by means of access control, identification and anti-copying devices.1 The EU has adopted a copyright directive and jurisdictions such as the United States and Hong Kong (SAR) have also passed legislation enforcing intellectual property laws in the ICT sector.
Many works of literature, film, music and art, as well as computer programs have been transferred into digital format. One of the most basic rights granted under copyright is the right to control reproduction under the Berne Convention, which covers reproduction in “any manner or form.”2 This right is critical to determining reproduction rights in e-commerce, as the transmission of a work presupposes the uploading of that work into the memory of a computer or digital device, and when the work is transmitted over networks, multiple copies are made in the memories of the network computers.
Some of the most significant issues arising from the extension of copyright protection in the digital environment are: (i) scope of copyright protection in the digital environment; (ii) responsibility of online providers; (iii) rights of performers in the digital environment; (iv) rights of digital broadcasters, such as webcasting and digital film and television online; (v) linking of copyright information online, including deep-linking and framing; (vi) protection of databases; and (vii) peer-to-peer file sharing systems, such as Napster.3
In the trademark field, commercial branding, advertising and marketing, including the use of domain names to identify one’s presence on the Internet are heightened by the online environment and can result in unfair competition. The general international consensus is that trademark protection under international and national laws should extend to the Internet, and the protection should be neither more nor less extensive than that granted in the physical world.4 Some of the issues regarding the protection of trademarks in the digital environment are:
- use of trademarks as meta tags - which are HTML codes inserted into the header of a webpage that allows search engines to identify the contents of the page and index it;
- sale of trademarks as keywords;
- pop-up advertisements;
- mousetrapping – an aggressive marketing technique that forces users to remain on a specific website, by disabling a user’s browser functions; and
- linking and framing.
In general, patents protect inventions. In the patent field, with the growth of e-commerce, the scope of patentable subject matter has increased, resulting in issues with respect to:5
- scope of patentable subject matter, including online business method patents and software protection;
- prior art effect – as applied to prior art in electronic form “cyber art,” and
- enforcement of patent rights.
ENDNOTES
1 Jasmin Battista, The EC Copyright Directive, on of the most significant measures ever adopted by the European Union in the copyright field, The Global Cyberlaw e-Journal, Issue no. 1, 2001, available at http://www.globalcyberlaw.com/TGCLeJ/issue_1.html.
2 Berne Convention for the Protection of Literary and Artistic Works, Article 9(1).
3 Intellectual Property on the Internet: A Survey of Issues, World Intellectual Property Organization (WIPO), December 2002, Section III (A), para. 66.
4 Id., Section III(B), para. 123. See also WIPO, Use of Trademarks on the Internet: Issues Paper, para. 6 (1999).
5 Intellectual Property on the Internet: A Survey of Issues, World Intellectual Property Organization (WIPO), December 2002, Section III (D).