Conference Theme: “To Infinity and Beyond: Law and Technology in Harmony?”
Winchester University
22nd & 23rd April 2009
Abstracts
Samir Al-Dalalah
samir_dalalah@hotmail.com
The Legal Problem of protection of the rights which form the content of Digital Multimedia works in the Jordan Law: A global Perspective
This paper examines one of the most important issues in the digital environment with respect to the Legal Problem of protection of the rights which form the content of Digital Multimedia works in the Jordan Law. This study aims, from one side, to examine the Jordan legal framework in this regard especially that there is no explicit rules to govern such problem. From another side, this study examines also, the international efforts in establishing rules that govern the protection of multimedia contents rights
Therefore, this article proceeds as the following. The first part deals with the examination of the concept of multimedia in the copyright law context especially with respect to the digital environment. The second part focuses on the legal guarantees for protecting such kind of works especially as it contains collections of literary or artistic works in the multimedia work. In this regard, there will be also, an examination of international copyright laws such as Bern Convention 1971 and WIPO Convention of copyright 1996
Jane Ball
jane.ball@sheffield.ac.uk
Fools rush in …..? Questions about possible instant electronic sales of land rights across Europe
A European, EULIS, project aims to make instant electronic transfer of land possible across the EU, including a pan European mortgage, the Eurohypothec. It aims to facilitate cross-border lending to help a single European market in land. Proposed benefits include information, mobility, consumer protection, competition between lenders and security. EULIS currently allows subscribers access to individual titles across several countries. Subscribers include banks, estate agents, lawyers, credit agencies and government enforcement agencies.
This paper raises initial questions about access to data such across the EU and data security, as well as whether it is advisable to facilitate instant purchase of distant land rights. Land rights are ancient, important and variable across 27 countries, causing is a problem with ignorance particularly affecting UK and Ireland, the only EU common law countries, with up to 800 years of separate development. Slow and heavy acquisition allows sufficient advice of local conditions including non-land conditions such as inheritance rules.
Currently few countries subscribe to information but this already raises questions about widespread access to personalized data and about security. The project is little known and influenced by research funded by lenders who are disproportionately represented in the venture. Comparative property law research is in its infancy and land registries know their own land systems but perhaps not sufficiently to explain this to foreign buyers.
Since hot money pouring quickly into land securities is implicated in the credit crunch, we should pause to assess the project empirically, in the light of a possibly outdated economic model of lending markets. Questions are raised including: Do we know enough to change things yet? How do you protect the public? Do instant transactions promote responsible ownership or lending?
Subhajit Basu
s.basu@qub.ac.uk
Digital ethics in bridging the digital divide
The digital divide disempowers, discriminates, and generates dependency. The question is how to deal with the problem of the digital divide? The politically intriguing idea of implementing a generic and adoptable model for ‘bridging digital divide’ clashes with the understanding that each country and region has its own peculiarities, constitution, and legal and political framework. The idea is simply unrealistic. It is not a matter of imposing legislative measures, strict regulations or empowering some controlling organization. One of the objectives at the World Summit on the Information Society was to build a global consensus around a core ethical values and principles for information society. Genetics has bio-ethics; doesn’t wisdom also demand that we develop digital-ethics? ICT has already posed fundamental ethical problems, whose complexity and global dimensions are rapidly evolving. Technologies are not only tools, but also vehicles of affordances, values and interpretations of the surrounding reality, like hermeneutic devices. The objective is to formulate universally recognised principles and common ethical standards for bridging digital divide.
Paul Bernal
P.A.Bernal@lse.ac.uk
Web 2.5: The Symbiotic Web
The internet – and more specifically the evolving, substantially commercial, form of the World Wide Web – presents particular challenges when considering personal data, privacy and autonomy. If we are to understand those challenges and the relative failures of current legal and regulatory systems (such as the Data Protection regime) to deal with them, and to shape more appropriate legal or regulatory responses, we need to understand the nature of this evolving form. This paper sets out a new way to look at it – the ‘Symbiotic Web’.
An uneasy symbiosis is developing in the web. Individuals and commercial enterprises are mutually dependent: enterprises have built business models reliant on a currency of personal data, while individuals depend on ‘free’ access to many services, from email and search engines to price comparison services, social networking sites and media services such as YouTube. Those ‘free’ services use personal data, obtained through various overt and covert means, as their way of generating revenues – through targeted advertising, profile building, and the direct sale of personal data. Even many services which are not free have moved towards this kind of symbiotic state, gathering personal data as part of their process – offering discounts for buying online or ‘personalised services’ (for example the iTunes ‘Genius Sidebar’, which selects music for you using a profile they’ve build up based on your musical taste) in exchange for personal information.
The paper will trace the evolution of this Symbiotic Web, suggesting that it can be seen as a form of ‘Web 2.5’, a direct development of the concept commonly labelled ‘Web 2.0’. It will set out the risks associated with the symbiotic nature of the web and look at the danger that it could develop into something more sinister, twisting the potentially mutually beneficial symbiosis into a harmful parasitism, and producing a fractured web, manipulating and controlling those who use it.
The implications of this symbiosis are significant. It helps to explain:
• Why so much personal data is gathered;
• The principal purposes to which it is being put commercially;
• Why companies are less than eager to be open about either the data gathering or its purposes;
• The ways in which this data may be used in the future;
• The difficulties of the current legal and regulatory systems to control this; and
• The threats to our privacy and autonomy that can arise as a result of this symbiosis.
If these threats are understood, appropriate legal, regulatory and technological responses can be found to ensure that the development of the web remains something essentially positive.
Sefton Bloxham, Fiona Boyle & Ann Thanaraj
sefton.bloxham@cumbria.ac.uk
Meeting the challenges of PDP and reflective learning using e-portfolios: The Cumbria Case Study
This is a work in progress presentation on a project at the University of Cumbria designed to pilot the development of e-portfolios in support of an embedded programme of personal development planning and reflective learning within the law curriculum. The pilot is based on the use of PebblePad e-portfolio software. The project is funded by the University’s Centre for Learning & Teaching Development (CDLT) and the UK Centre for Legal Education (UKCLE). The PDP programme will be delivered through designated modules at each level of study and is currently in its first year of implementation (2008-09). Consequently this presentation will focus on the implementation of e-portfolios within the first year Legal Skills & Method module.
The presentation will begin by outlining the institutional context and pedagogic rationale for the project, drawing on the literature identified by Butler (1) . It will then describe in further detail how the use of e-portfolios is used to support PDP and reflective learning and how the programme is embedded within the curriculum. It will also consider a number of key issues that have emerged at the time of writing. These include staff development needs in respect of IT skills and personal tutoring skills, IT challenges relating to the development of the e-portfolio templates and student access to the software, assessment issues and student ownership. Others issues that may have emerged during the year will also be addressed. The presentation will go on to assess the preliminary evaluative data obtained through student questionnaires and staff reflection. It is intended that further evaluative data will be obtained through the use of focus groups and this will be included if available at the time of the conference. Finally, the authors will conclude with some reflections and thoughts on future developments as the current cohort progresses through the LLB programme.
Butler, P. (2006) A Review of the Literature on Portfolios and Electronic Portfolios Available at: https://eduforge.org/docman/view.php/176/1111/ePortfolio%20Project%20Research%20Report.pdf (accessed 09 November 2008)
Michael Bromby and Martin Jones
M.Bromby@gcal.ac.uk
What shall we do with a Second Life law student?
Second Life (1) is a three dimensional virtual world accessed by users via the Internet. Subscribers create characters called avatars in order to explore Second Life space and to interact with others. The avatar is an alter ego of the user who chooses a name and can customise its appearance. Second Life has no unifying purpose. It is not a game with identifiable winners. Proponents of Second Life argue that it represents an embryonic migration to a 3D Internet.
Although it is free to access, it is possible to buy “land” in order to create content or to sell services to subscribers. The economy of Second Life is built around its own currency, the Linden Dollar which it is possible to trade for US Dollars.
Glasgow Caledonian University, in common with an increasing number of universities globally, has purchased land in Second Life and has built a replica of part of its campus(2). The creation of such space was, however, made in advance of any detailed strategy as to how such an environment might be exploited for learning. The University invited staff to submit proposals as part of a competition.
The authors will describe their struggle to find a context for Second Life in legal education. Fundamentally, one area of concern for the authors was how students would react to the immersive environment in Second Life and how this might impact on learning. With this in mind, a short pilot project with fifty LLB students on the Legal IT module was initiated in November 2008. This presentation reports the initial experiences of staff and the views of level 2 students gathered through a questionnaire. For the uninitiated, it will demonstrate the Second Life concept and it will speculate (and the audience is invited to speculate) on the potential for Second Life in law.
http://www.secondlife.com
http://www.gcal.ac.uk/cuthere/
Abbe Brown
abbe.brown@ed.ac.uk
“Delivering harmony: the interface between IP, competition and human rights”
This paper will build upon arguments I have developed elsewhere that IP, competition and human rights can and should be combined within the existing UK legal framework, such that findings of infringement will be avoided in relation to technologies of groundbreaking and fundamental societal importance. These arguments may provide an immediate solution to particular problems; however, they will, or may, be of limited impact for others.
There is also a need, therefore, for the interface between intellectual property, competition and human rights to be used to make a wider contribution. As a preliminary step in this regard, this paper will explore the extent to which the legal interface between these three fields can contribute to international policy development in relation to information, communication and environmental protection. Particular reference will be made to literature regarding regime shifting and governance in relation to IP, to the World Summit on the Information Society and the draft Access to Knowledge Treaty.
Joseph A. Cannataci Jeanne Pia Mifsud Bonnici
G.P.MifsudBonnici@uva.nl
The end of the purpose-specification principle in data protection?
A central protection for a citizen in data protection law is what is called ‘the purpose specification principle’, that is, a citizen needs to be informed why the personal data is being collected and the specific purposes for which it will be processed and kept. A citizen’s informed consent to the collection and processing of his/her personal data is dependent on the information about the purpose and use of the personal data. Furthermore, once the purpose is known it is easier for a citizen to trace who is actually responsible for the maintenance of the citizen’s information. Given the importance of purpose specification, one would argue that any sharing of data, that is, personal information collected for one purpose then used for another purpose by another department, between government institutions, should not be allowed unless the data subject is informed and consents to such sharing and the use of his/her personal information for the new or amended purpose.
Data sharing within the UK government has been taking place for years but the legality or otherwise of the sharing has not be clarified at all. The Thomas and Walport Data Sharing Review (1) carried out last year lamented of the lack of legal basis of data sharing and the lack of transparency and accountability of the process. Indeed, their primary recommendations address this lack of transparency and accountability.
In answer to this review, on 14th January 2009 the UK Government presented the Coroners’ and Justice Bill 2009 wherein, amongst other provisions, the UK Government proposes to permit the sharing of personal data within governmental institutions. While the Bill does not directly claim that data sharing is permitted, it proposes that when a “relevant policy objective”(2) so requires “a designated authority may by order (an “information-sharing order”) enable any person to share information which consists of or includes personal data”(3). At no point in the Bill is a “relevant policy objective’ defined or what it could be. The Bill only says that the authority making the order needs to be satisfied that ‘the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it.’(4) The rest of the provisions relate to procedural requirements that need to be followed in the issue of the information-sharing order. These requirements attempt to address the points raised in the Thomas and Walport report on responsibility and accountability. Analysing the proposed provisions, comparing them to the recommendations made in the Thomas and Walport report and fundamental principles in data protection, the authors argue that instead of achieving legal clarity, the provisions add to the vagueness that already surrounds data sharing between UK government departments. In avoiding to take a clear and decisive position on the legality and conditions for data sharing, fundamental safeguards of citizens’ rights of data protection are being systematically destroyed or ignored.
It concludes that these provisions if passed by Parliament without amendment are not only grave examples of erosion of citizens’ rights but also make bad law.
(1) Thomas, Richard and Mark Walport (2008) Data Sharing Review Report available at http://www.justice.gov.uk/docs/data-sharing-review-report.pdf
(2) Coroners’ and Justice Bill 2009 section 152 introducing a new section 50A(4) to the Data Protection Act 1998.
(3) Coroners’ and Justice Bill 2009 section 152 introducing a new section 50A(1) to the Data Protection Act 1998.
(4) Coroners’ and Justice Bill 2009 section 152 introducing a new section 50A(4) to the Data Protection Act 1998.
Emad Abdel Rahim Dahiyat
aldahiyat@aabu.edu.jo
The Legal Response to Electronic Agents in Jordan: Is it quantitative or qualitative response?
To meet challenges brought by e-commerce, Jordan has enacted its Electronic Transactions Law No. 85 of 2001 in order to facilitate the use of electronic means in onducting transactions. This paper will highlight the way in which this law deals with electronic agents that participate actively in the electronic contract formation process. This paper will further evaluate the legislative approach regarding the liability for the actions of such agents and whether or not the Electronic Transactions Law gives due attention to these agents and their possible consequenses in the digital world. Moreover, this paper will briefly address the issue of what the law ought to be in order to successfully handle intelligent software agents and their potential effects in the digital world.
Keywords:Electronic agent, liability, contract, Electronic Transactions Law,Computer mistakes
Abdulraouf Garoub
iamgaroub@yahoo.com
WTO’s endeavour towards cheaper medicines for developing countries: a dilemma between the silent Article 6 TRIPS and the only-once-used Paragraph 6 system –what could be done for future?
This paper will question the efficiency of WTO flexibilities of trans-country measures aimed at helping developing countries to secure cheaper medicines. The first flexibility is Article 6 TRIPS which leaves the door open for each member to choose its own policy regarding international exhaustion of intellectual property rights. The second flexibility is known as ‘paragraph 6 system’ which regulates the grant of international compulsory licences issued by developing countries who have no adequate pharmaceutical sectors to meet their public health needs arisen from national epidemics.
The paper will discuss the negotiations history and the current de facto status of Article 6 TRIPS, which represents ‘a regulation by no regulation’ approach. The paper will go further to examine the efficiency of ‘paragraph 6 system’ where it has been now several years since the system took effect, and we have only witnessed a lonely case of Uganda.
The paper will try to propose answers to the questions; why those flexibilities given to developed countries to choose a suitable policy for their public health problems, vis-à-vis securing pharmaceuticals, did not work quite well? Is it a ‘clash of flexibilities’? Or it is simply diplomatic clichés rather than practical trade easements? And what solutions could be proposed to bring more success?
Anton Geist
home@antongeist.com
Using Citation Analysis for Ranking in Computer-Assisted Legal Research: An Experiment using Austrian Supreme Court Cases
Computer-Assisted Legal Research (CALR) services like Westlaw and LexisNexis make more legal documents available to researchers than ever before. What they fail to provide so far, however, are efficient tools to enable users to make accurate, yet fast relevance judgments. Our ability to manually assess the relevance of individual documents in result lists has simply not kept up with the general growth of digital document collections. “Old” ideas from the field of citation analysis have been built upon in the area of Web search since the late 1990s for quite similar reasons. The Web has been growing so fast that efficient ways of supporting users in making information selection decisions have already been developed in Web search. The basis for those ranking algorithms is the “scale-free” network structure of the World Wide Web (WWW). The link structure of the Web is used to assign a relevance score to individual websites that is in turn used to put search engine result lists in an order. That automatically generated order is supposed to approximate the (average) user’s individual relevance judgments.
In a first step, I show that a legal document collection of Austrian Supreme Court cases and the headnotes that cite them have a structure similar to the “scale-free” network structure of the WWW. To do so, I am compiling and processing only freely available data from the Legal Information System of the Republic of Austria (RIS), in order to construct a network of all Austrian Supreme Court cases since 1985 and those headnotes that cite them. The fact that this network is a scale-free one as well by itself already suggests further looking into the possibility of using Web search ranking algorithms in CALR.
I then compare the structure of my network to a traditional indication of impact concerning (Supreme) Court cases, namely their publication in an official legal reporter. As there is a skewed distribution of traditionally identified high-impact cases within the network, I prove the general feasibility of using Web ranking algorithms for sorting result lists in CALR. Put differently, performing basic citation and network analysis methods on free sources makes it possible to automatically relevance-rank Austrian Supreme Court cases in a way that is in line with traditional paid-for legal research.
Carlisle George, Dr. Boštjan Berčič
C.George@mdx.ac.uk
Electronic medical records: addressing privacy, confidentiality & security concerns in the US and UK
The digitisation of patient records has become a high priority for the new Obama Administration. As President-elect, in a radio address on December 6th 2008, Mr Obama proposed to modernise the US health care system by enabling hospitals to be connected to each other via the Internet, and by making sure that every doctor’s office and hospital use cutting edge technology and electronic medical records (Obama, 2008). He indicated that these measures would “cut red tape, prevent medical mistakes, and help save billions of dollars each year” (Obama, 2008). Indeed, it has been shown that use of information technology (IT) in health care reduces costs and medical errors (Mannan et al, 2006). Surprisingly, not many US physicians make use of electronic medical records. A 2008 study found that out of 2758 US physicians surveyed, only 4% had a fully functional electronic records system (DesRoches et al, 2008). In the UK, since 2002, the National Health Service (NHS) produced a strategy for developing IT in the NHS (including use of electronic health records, and 24-hour online access to patient records) resulting in the National Strategy for IT (NPfIT) programme which is currently underway. Use of electronic medical records raises many legal concerns especially related to privacy, confidentiality and security. Further, the linking of different medical databases increases these concerns (see Berčič & George, 2008). In view of the desire to increase IT use in health care, legislators in the US have recently drafted new legislation to address accompanying legal concerns (such as indicated above). This paper compares US and UK legislation (current or pending) that address concerns regarding the use of electronic medical records with a view to analysing the approaches taken by the two legal systems.
References
Bercic, B. & George, C. (2008). Compiling medical data into national medical databases – legitimate practice or data protection concern? In Penny Duquenoy, Carlisle George, & Kai Kimppa (Eds.) Ethical, Legal and Social Issues in Medical Informatics, Idea Group Inc. USA, 2008.
DesRoches, C.M., Campbell, E.G., Rao, S.R., Donelan, K., Ferris, T.G., Jha, A., Kaushal, R., Levy, D.E., Rosenbaum, S., Shields, A.E., & Blumenthal, D. (2008). Electronic Health Records in Ambulatory Care — A National Survey of Physicians, The New England Journal of Medicine, Volume 359: 50-60, Number 1, July 3, 2008.
Mannan, R., Murphy, J. & Jones, M. (2006). Is primary care ready to embrace e-health? A qualitative study of staff in a London primary trust, Informatics in Primary Care, Vol 14, pp 121-31.
NHS (1998), Information for Health. Available at:
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4014469.pdf
NHS (2002). Delivering 21st Century IT Support for the NHS. Available at:
http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4071684.pdf
Obama, B. (2008). Remarks of President-elect Barack Obama Radio Address on the Economy, Saturday, December 6, 2008. Available at: http://change.gov/newsroom/entry/the_key_parts_of_the_jobs_plan/
Martina Gillen
p0074387@brookes.ac.uk
Law and Technology: Lightyears Apart?
The choice of the catch-phrase “To Infinity…And Beyond” for this year’s conference is to the legal theorist in the field of computer law an interesting one. The phrase first came to public attention in the Pixar film “Toy Story” a film which was widely hailed as one of the first fully computer generated cartoons, in other words it draws us into the realm of a simulation of a simulacra. Tempting as it might be to use this to be drawn into Baudrillard’s perspective of the hyperreal and thus mire questions about the relationship between law and virtual space in a purely ethereal realm it is much more instructive to return to the original thoughts of Korzybski that there can be confusion between concept and reality. For example, does reconceptualising a DRM technology as a matter of computer security make it so? The plot is equally revealing. A sheriff character “Woody” tries to explain to a futuristic space ranger “Buzz” the nature of what is real. Or to view it another way traditional law seeks to take over the jurisdiction of the new infinite spaces. This is of course a slightly fanciful observation but the underlying premise holds good that there is a serious and meaningful conflict going on between traditional ( and pseudo traditional) legal definitions and jurisdictional markers and technological development. This paper shall explore this conflict in three key areas, intellectual property, computer security and human rights. Particular attention shall be given to recent UK and EU political and legal developments
Audrey Guinchard
abguin@essex.ac.uk
From harmony to disharmony? Criminal law’s response to evolving technologies
From the early eighties onwards, new technologies disrupted criminal law. The traditional definitions of offences such as fraud, theft, or even possession of obscene materials did not always match the behaviours committed by criminals when using computers and the internet. Yet, after a while, criminal law recovered, either by the courts adapting the law, or more frequently, by Parliament enacting new legislation to combat crime.
Nevertheless, this harmony between law and technology is not complete. In the 21st century, criminal law faces unprecedented challenges. With virtual worlds, like Second Life, how can there be murder, rape or even harassment when there is no embodied person directly affected but ‘only’ intangible characters called avatars? Can there be offences against property when avatars and their objects have no tangible existence, apart from maybe being convertible to real life currency? The traditional benchmarks used by criminal law to define and justify criminalisation of behaviours seem to disappear. Particularly in relation to the offences protecting the person, the harm seems distant, unquantifiable, in short, belonging to a dream world which bears little relation to reality apart from attempting to simulate it online. As a consequence, some argued that they are fantasy crimes, however distasteful they can be. For example, in Second Life, ageplay, involving child avatars having sex with adult avatars, can be shocking, but should criminal law intervene when no real life children are at stake? To answer the question, we often focus on the concept of harm, trying to fit the facts to its tradition definition. But should we not go further and question why criminal law was built on such definition in order to see if the law and technology could live in harmony? This paper is an attempt to do so.
Jordan Hatcher
jordan@opencontentlawyer.com
Implementing Open Data: The Open Data Commons Project
Perhaps surprisingly for some — but not of course for IP lawyers — data and databases are not a “rights free” area where no intellectual property rights apply. International trade agreements (TRIPs), regional agreements (EU Database right) and national law all provide for legal protection for databases. Thus data and databases present another layer of IP that must be cleared by those working with data and databases – including academics and researchers in both hard and social
sciences. But scientists aren’t the only ones who must dive into rights issues in data as these rights impact areas such as community projects like Open Street Map and even the next generation of web technologies (the “semantic web”).
This presentation explores the issues surrounding open data — taking an approach similar to free and open source software or open content but for data — uncovered by research and practical work on the Open Data Commons project and the development of licensing tools for data. Discussion will centre on two aspects: dedicating data and databases to the public domain and applying free and open source software/open content licensing principles to data and databases.
Public domain and data
The public domain analysis will focus on legal issues surrounding placing work in the public domain, including if dedications are possible, the role of moral rights, and possible legislative responses. This analysis will concentrate on the specific use case of data and databases and experiences with the Open Data Commons – Public Domain Dedication & Licence and with the Science Commons Protocol for Implementing Open Access Data.
Applying open licensing to data
Free and open source and open content licences, such as the GPL and Creative Commons, depend largely on copyright to function. Issues in applying these licences to the data context will be examined, including the role of contract and the international position of the EU database right in the open licensing context. Examples will be drawn from the use of Creative Commons licences for databases, the development of the Open Data Commons – Open Database Licence (ODbL)
and Open Street Map.
Phoebe Chienwen Hung
phoebe.c.hung@ed.ac.uk
The Precautionary Principle Applied under the IPR and Right to Health Dilemma
Intellectual property rights (IPR) are established as a means to achieve a greater common good, but the exclusive rights of biotechnology patents related to human health has resulted in the misuse of IPR and market failure that render in dilemmas in global public health threat in the past two decades. For instance, the right to essential drugs under a public health emergency of international concern (PHEIC) and the issue on virus sample sharing are under huge debates in international forum. In a global free trade era, the value of trade often surpasses human’s right to health in many empirical cases unless a domestic public health measure is justified by limited exceptions or flexibilities in WTO laws. However, exceptions are applied with strictly limitations and the flexibilities are still barely used by developing countries due to different approaches of international trade sanctions. The author observes that the purpose of the protection on biotechnology patents has strayed to a bottleneck and a mechanism reform is desired for the preparation of patented drugs under a PHEIC. It is suggested that the application of the precautionary principle will serve to justifications of a public health measure when facing an imminent public health threat. This paper argues that the value of human health should surpass trade and IPR under a public health threat to achieve global justice and optimal allocation of resource.
Chris Hull
hullc@smuc.ac.uk
E-learning, M-learning, Pods and Vods: A legal education study
There is an assumption that ‘all ICT is good ICT’, considering the use of learning technologies as a powerful stimulus for improving teaching, learning and assessment.(1)
As the university campus moves away from ‘bricks and mortar’ to ‘clicks and mortar’ Selwyn is critical of what he believes to be the decidedly non-transformatory nature of formal ICT use in contemporary HE.(2) There is an increasing concern that ‘commentators are often driven by assumptions of the allure of new media for young people rather than empirical evidence’.(3) As Selwyn and Gorard rightly point out ‘analysis of participation data [shows] that access to ICT does not, in itself, make people anymore likely to participate in education and (re)engage with learning. We know that access to ICT continues to be largely patterned according to long-term pre-existing social, economic and educational factors’.(4) This suggests that we must take into account students’ lived experiences of engaging with educational technologies. Research shows that students only perceive ICT as useful if it can be integrated into their daily lives.(5)
In October 2008, Chris Hull and Dr Victoria Armstrong began an empirical study aiming to evaluate the use of pod/vodcasts and other mobile technology as a tool for learning to try to ascertain in what ways students make use of it, for what purposes, perceived benefits, and how it may have helped students’ understanding of a topic (the pedagogical value).
In addition the study considers the ways in which students use and think about mobile technologies in the context of their studies, within the formal (university) and informal (home) contexts. This highlights the social nature of learning, and examining the relationship between student uses of mobile technologies and other forms of student engagement. (socio-cultural dimensions).
This first review will look at the nature of the study, the technology used and will give some preliminary findings.
(1) Selwyn, N. The use of computer technology in university teaching and learning: a critical perspective. Journal of Computer Assisted Learning 23 (2), pp. 83-94 at p84.
(2) Selwyn, N. Developing the technological imagination: theorising the social shaping and consequences of new technologies, paper presented to ESRC seminar series: ‘The educational and social impact of new technologies on young people’ University of Oxford, March 2008 available at http://www.education.ox.ac.uk/esrcseries/uploaded/08_0314%20ESRC%20report_web.pdf
(3) Selwyn, N., Gorard, S. Reality bytes: examining the rhetoric of widening educational participation via ICT, British Journal of Educational Technology 34 (2) (2003) pp. 169-181 at p177.
(4) Lee, M. J. W., Chan, A. Reducing the Effects of Isolation and Promoting Inclusivity for Distance Learners through Podcasting. Turkish Online Journal of Distance Education 8 (1) (2007) available at http://tojde.anadolu.edu.tr/tojde25/articles/Article_7.htm
Ronald Kakungulu
kakungul@email.arizona.edu
From Copyright to Access to Knowledge: The Development of an Access Right in Uganda Copyright Law
Whereas copyright law plays a crucial role in access to knowledge and learning materials at all stages of academic life; the strong desire to balance the rights of copyright holders and users is missing in the Ugandan context. The access right to copyrighted works is not well developed in Uganda copyright law. Though the TRIPs Agreement provides for several flexibilities which could be used to exploit access benefits for the many poor pupils and students in Uganda’s schools and Universities, this potential has not been fully exploited.
For instance, Uganda passed the Copyright and Neighboring Rights Act, 2006 which repealed the Copyright Act, 1964 (Cap. 215). A major salient feature of the new Act, is the shift from the doctrine of fair dealing to fair use; the latter is very constraining in terms of access to education materials since it requires the personal use of such materials as opposed to the long term established common law doctrine of fair use/dealing which gave broad exceptions to copyright use as long as it was for academic/educational use. This is not surprising at all in light of the fact that it was the musicians/artists that successfully lobbied for the recent amendment of the law, which amendment impacted on access to learning materials.
In Uganda’s learning environments, piracy which at times is confused with legitimate copying, is a primary vehicle for accessing highly priced learning materials, or materials that are simply inaccessible. Price and inaccessibility are both real challenges in a country with a young yet nascent publishing industry. This is not mentioning the high rates of poverty in a country listed as one of the Least Developed Countries (LDCs). Poverty is so rampant that some copyright users, especially students, find it even difficult to afford the cheap photocopying. Rights-holders in the literary world have decried the ever increasing piracy and at the same time acknowledged the high prices of learning materials as fuelling the demand for pirated materials. In this paper, I argue for the development of an access right as a solution to this problem in Uganda
Ronald Kakungulu
kakungul@email.arizona.edu
Towards Electronic Commerce in Africa: Challenges and Prospects of Electronic Commerce in Africa
The non-use of e-commerce is a phenomenon which affects the economic prosperity of Africa. Electronic commerce is the transacting of business using electronic communications processes and facilities.(1) In Africa, e-commerce needs to be seen within the wider context of the so-called “digital divide” that separates the developed and developing world and especially Africa, which has most of the least developed countries on the globe. (2) Indeed the Economic Commission for Africa, through its African Information Society Initiative (AISI), has identified e-commerce as one of the four key areas in Africa to exploit ICTs to best advance social and economic development. (3) This paper examines the challenges and prospects for e-commerce in Africa.
E-commerce presents important new opportunities as it diminishes existing advantages of cost, communication, and information, and can create huge new markets for indigenous products and services from Africa. While the use of e-commerce in North America and Europe has transformed the entire field of world trade, e-commerce has not yet drawn much attention on the vast African continent. In contrast, Africa seems content with the traditional modes of paper-based trade as opposed to the modern paperless e-commerce.
This paper examines the fundamental problem of whether e-commerce as used in North America and Europe can make a contribution to the growth and promotion robust international trade between African countries and the West. Recent developments in e-commerce in the international arena, culminating in the adoption of the UNCITRAL Model Law on E-Commerce(4) one of the United Nations efforts to bolster the worldwide use of e-commerce, lend a degree of urgency to this issue.
(1) S.Esselaar, & P.Miller, ‘Towards Electronic Commerce in Africa: A Perspective from Three Country Studies’, The Southern African Journal of Information and Communication, Vol 2, No 1, 2000, pp.1-14, at p.1.
(2) Ibid.
(3) See http://www.un.org/depts/eca/adf/pub.htm last visited 14.04.2008.
(4)The United Nations Commission on International Trade Law (UNCITRAL) brought out a model law on electronic commerce in 1996, amended in 1998 and adopted by the United Nations in 2001.
Jaspal Kaur
jks08@aber.ac.uk
Digital Citizen Media in Malaysia: Advocacy by technology, Suppression by law
Blogs and other similar tools that facilitate online citizen journalism on the Internet are increasingly seen as new ways to exercise freedom of expression, as seen in the case of Malaysia.
This new form of expression is perceived as a threat by certain governments and these pose challenges to political bloggers. The paper will focus on citizen journalism in the form of political blogs on the Internet which has become part of the national conversation in Malaysia. Events in 2008 that caused the blogosphere to buzz had been, firstly, the lead up and the aftermath of the general elections where the government was unsuccessful in obtaining its two-thirds’ majority in the elected house; and secondly, the controversy surrounding the arrests of bloggers.
The paper will highlight instances when the state has reacted by working the legal machinery against political bloggers. Case studies will highlight the various provisions of the law that have been evoked, raising the question whether the use of the law will in any way act to diminish the popularity of political blogs or whether the continued evolution of new technologies will continue to profoundly act as a catalyst to such activity.
The paper will address the main reason for the increased popularity in both, use and readership of blogs driven by the democratisation of technology, namely the accessibility to the World Wide Web, the tools (such as web hosting services and content management systems) and guidance available on the web (guides on limiting legal risks, anonymity, blogging for a cause, digital advocacy) including mobile devices that facilitate citizen media; and in the process evaluate the impact such type of journalism has had on political and social discourse in the country.
Eleni Kosta, Lexi Pimenidis & Jos Dumortier
eleni.kosta@law.kuleuven.be
The European debate on IP addresses – using a hammer to drive a screw?
Prominent role in the discussion about personal data is the characterisation of IP addresses as such. The Article 29 Working Party in its opinion on IPv6 sustained that IP addresses attributed to Internet users are personal data1. The same approach was supported a few years later, when the Article 29 Working Party confirmed its opinion that IP addresses are personal data and noted that “unless the Internet Service Provider is in a position to distinguish with absolute certainty that the data correspond to users that cannot be identified, it will have to treat all IP information as personal data, to be on the safe side”2. However opposite opinions have also been expressed, presenting significant argumentation. It is striking that various courts have come up with conflicting judgments when deciding whether IP address are personal data or not. The Paris Court of Appeals published two decisions, on the 27th of April and the 15th of May 2007, where IP addresses were not considered as personal data by the Court. Similar was the interim ruling of the District Court of Munich3, according to which website operators are allowed to store the IP addresses of their visitors without violating data protection laws, thus not considering IP addresses as personal data. To the contrary, the District court of Berlin4, considered IP addresses as personal data. And the list goes on…
The characterization of IP addresses as personal data has undoubtedly significant consequences on internet service providers. However is this the most important question to be answered in an attempt to protect the privacy of the Internet users? In this paper we will try to redefine the topic and give a new dimension in its approach.
1 Article 29 Working Party, Opinion 2/2002 on the use of unique identifiers in telecommunication terminal
equipments: the example of IPv6, WP 58, 30 May 2002.
2 Article 29 Working Party, Opinion 4/2007 on concept of personal data, WP 136, 20 June 2007.
3 File no. 133 C 5677/08; 30.09.2008
4 File no. 5 C 314/06; 11.01.2008
Benjamin Lesjak
benjamin.lesjak@uni-mb.si
Perception and Willingness of the Slovenian Legal Profession to Use Videoconference
Slovenian courts have not been equipped with videoconference systems yet. Approximately 50 proceedings have been lead within our courts with support of videoconference systems, but were outsourced to professional firms for each session separately. Courts in Slovenia mostly had cross-border witness hearings with translators or expert hearings, some domestic videoconferences for protected witnesses. A rising number of requests are expected.
At Faculty of law of University of Maribor, a research was conducted with aim to explore opinions on the use of videoconferences in judicial proceedings. The research involves Slovenian judges, legal practitioners, law professors and students, and other legal experts, to whom an electronic questionnaire was distributed. The questionnaire consists of three main parts: firstly, general opinion on videoconferences and reasons for its use. The second part consists of information on the use of videoconference, knowledge about the use of videoconferences and videoconference equipment. Lastly, we investigate general use of information technology and Internet. In this paper outcomes of the research are presented. In general, participants were in favour of use of videoconferencing.
We are facing the beginning of the constant use of videoconference in judicial proceedings after adoption of proper legislation in Slovenia. Many important issues have to be researched at the beginning of the project of videoconference infrastructure implementation. Possible connected locations have to be researched: courthouses, hearing rooms, prisons, hospitals etc. Probable saved costs at possible locations should be estimated. It is also advisable to start with pilot project with few locations connected.
Nevertheless, the most important issue (beside technical and organisational facts) is the question to which extents are judges and other involved legal experts willing to use videoconferences at their every day work. Willingness is the basis for a successful implementation of the project and further use of videoconferencing.
Wen Li
liwen830409@hotmail.com
Regulation of Virtual Currency in China, with comparative perspectives from the EU and UK
Virtual currency, such as Linden Dollar and Q coins is a kind of newly emerging electronic payment instrument issued by Internet companies to be used by their users/avatars in relevant Internet companies’ platforms (e.g. QQ platforms in China), virtual worlds (e.g. Second Life) and online games (especially massively multiplayers online role-playing games (MMORPGs), e.g. World of Warcraft), to perform all the economic functions like legal tenders serves in the real world.
From comparative perspective, this paper explores how virtual currencies are regulated in the European Union and the United Kingdom, by providing detailed analysis of the initiation, amendment process as well as the implementation of EU Electronic Money Institutions Directive and UK FSA rules. Meanwhile, the author also examines the existing Chinese rules, which includes direct rules and indirect rules on the regulation of virtual currency, and Chinese government’s regulatory approaches towards virtual currency.
On the basis of virtual currency market in China and the Chinese legal framework on Internet and finance, by taking into account the EU and UK legislation experiences, this paper proposes a number of fundamental principles for the regulation of virtual currency in China, which encompass “innovation priority principle” and “light and less regulation principle”. Furthermore, this paper also attempts to figure out what specific rules and measures should be adopted, to fully develop China’s advantage of backwardness in this emerging market. Those proposed rules and measures include establishing crisis management system and market exit system for virtual currency operators; designing virtual currency issuance declaration system and virtual currency gross quantity supervision system; establishing virtual currency redemption policy, virtual currency reserve system, and exchange system between virtual currencies and real currencies. An unusual approach, establishing an Internet central bank, is also studied.
Pheh Hoon Lim and Louise Longdin
louise.longdin@aut.ac.nz
Fresh Lessons for First Movers in Software Copyright Disputes: A Cross-Jurisdictional Convergence
The whole history of software development testifies to creativity’s oldest but sometimes overlooked truism: that in order to build you must first be able to borrow. First mover developers of allegedly infringed computer programs sometimes attempt to swamp the copyright analysis of their products in technical detail to enhance the creative mystique of their software and conceal its more mundane, functional and repetitive features, hoping that expert technical evidence put before the court on their behalf might not be judicially understood. Judges, displaying a refreshing willingness to peer behind the digital screen have recently demonstrated independently of each other in Australia, the United Kingdom and the United States that they are more than willing to subject computer programs to the same kind of analysis as traditional copyright works.
This paper analyses the decisions in Dais Studio Pty Ltd v Bullet Creative Pty Ltd [ 2007] FCA 2054, Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219 and Hutchins v Zoll Medical Corporation 492 F.3d 1377 (Fed. Cir. 2007). in which the Australian Federal Court, the United Kingdom Court of Appeal and the United States Court of Appeals for the Federal Circuit have recently achieved a degree of convergence in copyright treatment of computer programs in the face of different applicable statutory definitions. The cases reflect a judicial determination to rescue the dichotomy between an idea and its individual expression from the obloquy that has sometimes been cast upon it and provide clearer guidelines to second comers as to what they may borrow and build on by reasserting core copyright principles and the boundaries of copyright protection for computer software. All three serve as a fresh reminder to first comer software developers that all products (including those that are largely functional) are to a greater or lesser extent derived from or inspired by others and that it is usual and desirable for professional program or game developers and creators of commercial websites to continue to be able to be both innovators and followers.
Daithí Mac Síthigh
D.Mac-Sithigh@uea.ac.uk
Postal Packets and Computer Abuse: the unintended consequences of unusual offences
Certain recent prosecutions for computer-related offences can only be described as ‘creative’ in how legislation seemingly designed for one context is applicable in an unforeseen one. The factors contributing to this situation include how the modernisation of legislation originally written for the purposes of regulating the nationalised postal and telecommunications systems creates broad, general offences without any debate on the consequences of such steps, and the increasing role of website terms of use, where it is argued by some that violating the terms of service means that subsequent actions are unauthorised. It is argued in this paper that certain criminal offences are now effectively catch-all provisions and that, while it is not appropriate to provide for every technological or social development in relation to Internet use, the current position is characterised by uncertainty and the potential for unfairness.
Chris Marsden
cmars@essex.ac.uk
Quis custodiet ipsos custodies in the Internet: self-regulation as a threat and a promise
The ICT domains have always been subject to degrees of technical, economic and/or societal regulation. The traditional basis for these interventions was a ‘governance gap’ between the economically-motivated activities of key stakeholders and the external consequences for other firms, end-users, public services, etc. Recent changes in European market and societal context, and policy initiatives such as the Lisbon and ‘Better Regulation’ agendas, have triggered a reconsideration of this basis. Four developments in particular are particularly challenging: enterprise convergence and divergence that reshape market and sector boundaries; the evolution of ‘converged’ regulators along sectoral or network-industry lines; new regulatory concerns (IPR enforcement, RFID, net neutrality); and changes in the European policy context. These have combined to lay the foundation for cross-cutting reviews and rebalancing of regulatory roles and responsibilities which can have profound structural and dynamic implications. This development has been largely confined to formal or statutory regulation, while much of the governance in these domains is provided by a spectrum of self- and co-regulatory organisations (hereafter referred to as XROs).
I consider what sorts of self- and co-regulatory arrangements exist, what issues they address, what other impacts they produce and how their existence affects regulatory assessment. At a minimum, regulatory impact analysis needs to take into account:
• The pre-existence, structure and performance of XROs involving key stakeholders and/or addressing the issues addressed by the proposed regulation
• The ongoing role and activities of XROs as part of the context for both ‘laissez-faire’ and statutory regulation; and
• The advantages and risks for strategies that seek to achieve regulatory objectives through explicit reliance on or support for XROs (e.g. by delegating authority, endorsing XRO-produced standards and Codes of Conduct, or providing monitoring and enforcement support).
The research reported in this paper analyses the roles, functions and impacts of these organisations in various ICT-related domains and considers their implications for developing a regulatory posture that is more supportive of overarching policy objectives, more transparent and accountable, more flexible in response to technological and other changes, less burdensome to those regulated and less likely to distort market outcomes and evolution.
The research reported is based on a full-year European Commission-sponsored project 2007-8:
• A review of the literature surrounding self-regulation (in a wide range of contexts, including financial services and professional self-regulation),
• 21 extended case studies of Internet XROs,
• An analytic treatment of the determinants and impacts of XRO formation, agenda-setting, rules, monitoring, enforcement and compliance; and
• A policy analysis of the scope for regulatory engagement with XROs and methods option development and ex ante (and to a lesser extent ex post) evaluation.
Particular issues concern: the degree to which XROs are formed around specific issues, market segments, personalities or types of action (e.g. standardisation); whether different types of statutory or XRO governance are likely to adopt more stringent or more cost-effective rules; whether different arrangements are more vulnerable to capture or corruption; and whether compliance will be higher under specific types of arrangements. These can be related to a number of topics of current interest.
TJ McIntyre
tjmcintyre@ucd.ie
European Internet Content Regulation: Implications for Freedom of Expression, Transparency and Accountability in the United Kingdom?
Since the 1996 Commission Paper on Illegal and Harmful Content of the Internet (1) the European Union has played a significant role in developing the regulation of online content. Recent developments – such as the adoption of the Audio Visual Media Services Directive(2) and the new Safer Internet Programme (2009-2013)(3) – have continued this trend.
Many of the policy measures used, however, have been challenged as undermining fundamental rights and good governance and in particular freedom of expression, transparency and accountability. Self-regulation, for example, has been a key element of European strategy but has also been criticised as tending to encourage privatised censorship, with private actors deciding on the permissibility of content in a way which may be neither based on publicly approved norms nor subject to public oversight. Similarly, the liability regime imposed by the Electronic Commerce Directive (4) has been said to create an incentive for hosts simply to remove any content notified to them, without engaging in an analysis of whether the content is in fact illegal.
To what extent are these criticisms valid? Any assessment is complicated by the fact that European developments in this area are not free-standing but are implemented in various ways into national legal orders. Consequently, we must look also to national responses to see whether these complaints might be upheld.
This paper will consider these criticisms by outlining European developments in online content regulation and, using the United Kingdom as a case study, examining their interaction with national law and policy in order to consider whether the combination of European initiatives with national measures has adequately safeguarded values such as freedom of expression, transparency and accountability.
(1) Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, Illegal and harmful content on the Internet, COM (1996) 487 final, 16 October 1996.
(2) Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.
(3) Decision No 1351/2008/EC of the European Parliament and of the Council of 16 December 2008 establishing a multiannual Community programme on protecting children using the Internet and
other communication technologies.
(4)Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.
Dinusha Mendis
DKMendis@uclan.ac.uk
Pods, Blogs and Fair Dealing: Making sense of copyright exceptions in an online world
According to Copyright, Designs and Patents Act 1988 (CDPA 1988) copyright is not infringed if the work is carried out for the purposes of ‘fair dealing’; i.e. ‘fair dealing’ is permitted if it is carried out for research and private study (section 29); criticism and review (section 30(1)) and also for reporting of current events (section 30(2)). This area of the law, and in particular criticism and review has always been riddled with uncertainty as the law states that an individual cannot infringe copyright “provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public” (section 30(1)). Section 30(1A) states that ‘making available to the public’ can mean amongst others “(b) making the work available by means of an electronic retrieval system” which would mean user-generated platforms such as ‘blogs’ and ‘pods’.
In February 2009, a medical doctor posted an article on his personal blog criticising the so-called link between the MMR vaccine and autism as publicised by the British media. To support his argument he also posted an audio clip aired on London Broadcasting Corporation (LBC) which he then went on to ‘criticise and review’ for the purposes of his own argument. Before long he was pursued by the lawyers of LBC’s parents company Global Radio, who asserted that Dr. Goldacre had infringed copyright and that posting the audio clip amounted to substantial copying.
The case raises a number of questions, some of which, this paper will address. Does the publication of material one’s private blog or Facebook amount to infringement of copyright when it is done for criticism and review, where the source is acknowledged? With the Web 2.0 taking off rapidly, many people have got into the ‘habit’ of posting copyright material on these user-generated sites, believing it to be their private space; however the Internet blurs the architectural lines of private and public. This case has also come to the forefront at a time that the UK Government responded to the European Commission’s Green Paper – Copyright in the Knowledge Economy – which confirmed that there ‘should be no new exemption from copyright law for users’ adaptations of copyright protected content’. The Government stated that to create such an exemption for user-generated content would ignore the rights of content creators.
The author will attempt to answer some of the above questions, whilst others will be left open for discussion.
Jason Miles-Campbell
jason.miles-campbell@jisclegal.ac.uk
An Evaluation of Intellectual Property Law as a Barrier to the Adoption of New, Desirable Technologies in UK Further and Higher Education – An Analysis of Real Issues
This paper presents an analysis of the intellectual property related enquiries received by JISC Legal over the past three years, in an attempt to identify the ‘flash points’ between academic practice in UK colleges and universities, and IP law as it stands. JISC Legal is a centrally-funded service which assists further and higher education institutions with legal issues relating to the development and implementation of new technologies in teaching and learning, research and administration. As such, and particularly through its enquiry service, JISC Legal is in a unique position to gather information about trends in legally-relevant practices in UK tertiary education, and this paper seeks to draw upon this.
An evaluation of the fitness for purpose of copyright law, in particular, will consider the law and the practice in relation to the many technologies which are currently emerging. The period of experimentation with virtual worlds, social networking tools, content sharing and collaboration tools, personalisation and identity technologies, and mobile technologies has been and gone. Now institutions are left with the mainstreaming of such technologies, and the appreciation of legal risk that goes with such embedding. In addition, Business and Community Engagement, adopted as a third strand by many institutions, places focus on a new context, and the issues involved in distinguishing the ‘commercial’ from the ‘non-commercial’. Aside from these changes in technology and context, the paper will consider how expected changes in IP law are likely to improve the lot of staff who are conscious of IP in the tertiary education sectors.
This evaluation will encompass both analysis of quantitative data in relation to the intellectual property law enquiries received, but will also present case studies typical of IPR practice by UK colleges and universities.
Roksana Moore
roksana.moore@qmul.ac.uk
What is a Software Defect?
In August 2007 the House of Lords published a report entitled Personal Internet Security in which it was recommended ‘that the Government explore, at European level, the introduction of the principle of vendor liability within the IT industry.’ Along with the coming of age of the software industry, it would seem that a law of software liability is likely. As a prerequisite to a law of liability for software vendors, there are several intricate issues that require clarification, with focus largely centred on the absence of a definition of software, and the ongoing debate of whether software should be classed as a good or service; the outcome of which could help determine the applicable form of liability.
Nevertheless, and irrespective of the form of liability that vendors may be charged with, software defects remain a principle issue, and therefore identifying exactly what constitutes a defect is of paramount importance. Consequently this paper focuses on both the issues and challenges faced when identifying a software defect for the purpose of a legal definition. It looks at how the law currently deals with defects in other sectors, in order to identify if software defects could fit within the current language and framework. Distinctions are drawn between what a defect is, and also what a defect is not, in order to better understand the differences between the two. An examination and review of the software development processes is also included in order to understand the distinct stages that software production undertakes and to identify defects from a technical perspective. Finally, this paper concludes with a definition of a software defect that takes into consideration all of the issues presented.
Evangelos Moustakas
E.Moustakas@mdx.ac.uk
E-DISPUTES AT THE CROSSROADS: A STAKEHOLDER ANALYSIS OF ON-LINE DISPUTE RESOLUTION MECHANISMS (ODR)
The growth in e-commerce has been accompanied by a large number of disputes related to the online commercial interactions causing high litigation expenses and outstanding delays during the decision process. The distinct of such disputes in e-commerce have also led to the growth of online dispute resolution mechanisms popularly known as ODR. In this paper, we provide an exploratory understanding and conceptualization of ODR. Based on critical characteristics of ODR, we identify the various types of on-line transactions where ODR could be used and highlight its positive contribution in tackling these problems. Furthermore, we identify the key stakeholders as well as the secondary players in the ODR process and enunciate the roles played by them in order to move towards the development of an effective international dispute resolution framework on-line.
Abu Bakar Munir & Siti Hajar Mohd Yasin
abmunir@um.edu.my
CYBER WARFARE: LEGAL AND POLICY CHALLENGES
Information and communications technology (ICT) in the wrong hands present a new threat to the world peace and national security through the offensive use of these technologies in the form of cyber warfare and cyber attacks. Nation states have developed more sophisticated capabilities to launch attacks against critical infrastructures and impair the national security of another state and its ability to defend itself.
Cyber warfare poses new challenges in the field of cyber security. A large majority of the identified cyber attacks have been the work of individuals acting alone or in groups, independently or possibly on behalf of a government or intelligence service, or of industrial or private economic interest groups. According to the United Nations Institute of Research and Training (UNITAR); “Not only will cyber war be a force in future warfare, it may also turn out to be the great equalizer for nations attacking adversaries with superior conventional military power. Most nations lack the resources to build a military machine and may use information technologies to overcome their battlefield inferiority.”
This paper examines the legal and policy challenges that emerge from a cyber attack. It seeks to discuss several questions. Firstly, whether a cyber attack can become a cyber war? Secondly, whether a cyber attack is an act of war, especially in cases where the attack is supported by a state? Thirdly, whether or not the military doctrine can be used in responding to cyber attacks? In conclusion, this paper elaborates some of the legislative and non-legislative initiatives, worldwide, to ensure the security of cyberspace.
Akalemwa Ngenda
Akalemwa.Ngenda@brunel.ac.uk
Legal Framework for Combating Cybercrime in Africa
This paper charts the law relating to cybercrime in Africa. It uses examples of the law for combating, prevention and investigation of cybercrime in countries such as South Africa and Zambia, to examine the new and emerging regime for providing security of electronic communications and information. The paper also explores the prospects for a Pan-African Convention on Cybercrime.
Akalemwa Ngenda
Akalemwa.Ngenda@brunel.ac.uk
Towards An Epistemic Theory of the Intellectual Property System
The recent attempt to promulgate a treaty for the global enforcement of intellectual property rights – namely, the proposed Anti-Counterfeiting Trade Agreement (ACTA), 2007 – reincarnates some of the fossilised assumptions and practices that have historically shaped the development of the international intellectual property system. This paper posits that by their exclusionary nature, these practices engender and entrench discourses of domination and marginalisation of the kind that have resulted in an unbalanced system for making treaty standards in international intellectual property. It is argued that this imbalance significantly reveals how knowledge, among other things, forms the bedrock of the institutional and other structures of power in global intellectual property relations. The paper seeks to highlight the significance of positing intellectual property as a system of thought in which political and legal processes are brought to bear by different primary interests. By exploring the role of intellectual property protection as one of the so-called rules of globalisation, the paper aims to broadly develop a theoretical framework and critique to account for how systems of thought underpin relations of power. In so doing, it offers an epistemic theory about the concept of ‘power’ to explain the nature of the global intellectual property system
Liz Polding, Jill Cripps & James Catchpole
l.polding@brookes.ac.uk
LPC Accounts Online and LPC Skills Online
In Teaching and Learning Online, (edited by John Stephenson, 2001), Shirley Alexander and David Boud assert that “acceptance of the online environment as just another space for learning does not deny its potential to reconceptualize what is possible in teaching and learning”.
LPC Skills Online and LPC Accounts Online, published by OUP, view online learning spaces as primary resources, rather a supplement to a textbook. The interactive environment and animated demonstrations are combined with detailed and immediate feedback and tools for formal reflection to ensure that the resource is practical and builds confidence. This provides a structure which guides learners through a complete learning cycle, whatever their previous experience
Most exercises in LPC Skills Online are set in mini case studies in all compulsory LPC subjects, engaging the learner and ensuring that they apply their skills as they would in practice. In LPC Accounts Online, the learner is gradually introduced to the rules and accounting principles applicable for solicitors’ account and to the various business accounts and how they are to be interpreted for all aspects of practice.
All aspects of both skills and accounts are covered and the material becomes more challenging as the learner progresses. Additional exercises are also offered where the learner’s score indicates that further practise would be beneficial.
Finally, both resources include longer case studies to take the learner through a complete matter. For the accounts, this requires the learner to apply all their learning to either a complex set of entries required for a solicitors’ practice or detailed analysis of business accounts.
The authors’ paper considers how the development of this resource moves the use of interactive learning in law further, in the way posited by Alexander and Boud, away from being ‘just another space for learning’ into a new, flexible, learner centred environment.
Titiriga Remus
titiriga_r@yahoo.com
Cyber warfare and Law of the nations. A missed rendez-vous?
The research is developed around the vision of war as a (violent) continuation of interstate politics (von Clausewitz). On the regulation side the analysis is grounded on international law of armed conflicts (strictly limited to actual framework of Jus ad bellum).
The doctrine already examined when a cyber attack could be qualified as use of force (military or not) (under article 2.5 of UNO charter) or as an armed attack (under article 51 of UNO charter). The question of legitimate defence (article 51 UNO charter) was also thoroughly analysed. The criteria for covering a cyber attack under the above notions were the degree of physical destructiveness. A small degree of physical destruction qualified a cyber attack under other international (non military) concepts (like economic force, reprisals, international responsibility, etc). These analyses seemed pertinent. They tried to see the cyber warfare (as a form of interstate cyber attack) as an analogical extension of classical warfare forms. As such the cyber warfare would be just a step in an unchanged framework without a need for a paradigm shift.
But the real evolution of cyber attacks (made eventually by states) shows that such a vision is insufficient. No state is willing to escalate a cyber attack (to produce the huge destructions) and so trigger the classical forms of war and armed conflict. They will prefer to act unnoticed (with no physical destruction, no traces, hidden actors, etc) but to pursue their political aims with the new mean. Without dead and wounded, without visible casualties this evanescent cyber warfare imposes a new theoretical and empirical approach.
The examination of destructiveness seems to become the core issue. The main concept is ‘information (or virtual) destructiveness’ that is analogue but also different from the physical destructiveness (as, for example, the intellectual property rights are compared to main property rights).
This concept of ‘virtualized’ (invisible but not lest severe) destructiveness is the essential aspect of a cyber warfare attaching the bases of a knowledge economy, a knowledge society and a knowledge state. Finally we have here the hints of cyber attacks viewed as cyber war fare (or as cyber war) in itself and not as part of a classical armed conflict.
The next step of the analysis is a thorough examination of cyber attacks forms (manifested today mainly in the criminal law or private law field). The results are extrapolated to inter state situations in order to give an image of actual and future forms of cyber warfare and their ‘information destructiveness’.
Finally a come back to the framework of international law of armed conflict was accomplished. The revision of international law definitions reveals some weaknesses of the old instruments but also some interesting pathways. A preliminary exploration of some of these pathways in the form of questions and challenges as ground for futures debates and researches ended the analysis .
Diane Rowland
dor@aber.ac.uk
Flickr, Facebook and Photographs: An inevitable intrusion on privacy?
Current technology facilitates easy publication and sharing of photos and photo albums via the internet. The advent of digital photography has made it an easy matter to send photographs to one or more recipients via e-mail, MMS etc but sharing of photos is now far more likely to occur via applications which are designed for this purpose whether exclusively or not. In consequence, the photosharing market is growing at a very rapid rate and it has become routine for photos of special events to be available almost immediately and shared amongst friends, a wider cross section of site users or even on the internet more generally. Many of these will be tagged with subjects’ names to enable easy sorting and identification. Newer developing technology may allow automatic tagging of individuals after their image has been tagged the first time. This is all good news for those who are content with their images being published and shared in this manner. But what of those whose image may have been published without their knowledge or consent? Appropriate privacy settings may restrict publication but nevertheless can still result in publication to quite a significant audience.
In parallel with these technological developments which have made photo sharing routine and commonplace, there have also been legal developments in respect of privacy protection which underline the fact that photographs taken or published without consent can intrude on privacy. Publication of information about individuals needs to balance a number of things including the right to freedom of expression of the person publishing the information, the right to privacy of the individual concerned, the likely/potential audience for the publication and the public interest in the information. Where what is published is text, there may be a difficult balancing exercise between freedom of expression and privacy. Photographs, however, are often not taken or published with a view to disseminating ideas as such (although they may of course illustrate them) but rather to provide images which communicate sometimes very personal or even intimate ‘information’ about an individual. In that sense, the publication of photographs is arguably far more concerned with the privacy side of the equation. A legal analysis of these issues raise questions about the scope of right to privacy, the nature of any consent required and, in particular the difficulty of satisfactorily delineating between what are public and what are private activities.
This paper will examine the developing case law on privacy and photographs culminating in the recent decision of the European Court of Human Rights in Reklos and Davourlis v Greece (15 January 2009) which suggests that, in some situations, even the act of taking a photograph without subsequent publication of the image may be an invasion of privacy. This analysis will be related to the burgeoning activity of photosharing on the internet and other media and an assessment made of whether the law and technology are indeed working in harmony in this area.
Catherine Russell
c.russell@mmu.ac.uk
ASKING THE AUDIENCE: USING CLICKER TECHNOLOGY IN LEGAL EDUCATION
Recent technological developments have led to a situation in which the employment of clicker technology in the law school lecture theatre is now a feasible possibility. Influential studies carried out in pure science disciplines (Hake, 1998; Crouch and Mazur, 2001) indicate positive results in both engagement and assessment success attributed to extensive clicker use. There is however a paucity of studies outlining the tailoring of this technology to the specific nature of legal education. This paper presents the findings of a small-scale use of clicker technology within the context of a wider study addressing issues of lecture engagement across an LLB course. These observations are drawn into the existing debate on clicker use by highlighting key emerging themes and commenting upon their potential impact within the field of legal education. An overview is then presented of the small body of literature on clicker use to teach law which is analysed to make observations upon the opportunities for legal education presented by clicker technology and the factors affecting its adoption on a law school-wide basis.
Burkhard Schafer
b.schafer@ed.ac.uk
Swayed by the force of your argument: representing argumentative force in computer assisted argumentation tools.
The paper discusses current trends in the development of computer assisted argumentation visualisation tools, and in particular claims made regarding their usefulness as a teaching tool. We argue that existing tools fail to represent some features of legal reasoning that students typically struggle with the most. We focus in particular on the representation of “argumentative strength” and how conflicting intuitions about the strength of an argument can be incorporated in an appropriately designed argumentation support tool. Three candidates are discussed in some details; Bayesian networks as a conservative extension of argument diagrams, “battle plan” approaches to the depiction of dialogues, and, as an alternative to computer aided visualisation, “haptic” approaches to argumentation analysis.
Heidi Schuster
heidi.schuster@gv.mpg.de
The use of Google services and tools in academic institutions – a critical review
The US Company Google Inc. offers a variety of Internet applications for many areas of everyday life. Whether a detailed search engine, e-mail service, voice over IP, route planner or data search on your own computer – almost every Internet user privately enlists one or more Google services.
Academic institutions as well increasingly rely on the use of Google services: the directions sketch is produced with Google Maps, information in the internal network are indexed and made available by the Search Appliance.
From an employer’s point of view the use of these services becomes critically when the employees independently decide to use Google products instead of the applications provided by the employer. Projects meetings are hold virtually at Google Groups, the appointments diary which is released for colleagues is saved on Google servers and documents are processed by teamwork via Google Docs. This procedure – though workable – involves numerous risks and legal problems.
Internal data are transmitted unsupervised to an external company which is located outside Europe on top of that. Google’s Terms of Service provide for granting extensive rights of utilisation, which, in a scientific environment, can lead to problems associated with rights of dissemination. Not least there are infringements of confidentiality of labour-law and of security regulations of the institution.
In the lecture selected services will be presented which will be critically reviewed.
Konstantinos Siliafis
kks@aber.ac.uk
International initiatives on e-commerce taxation; different jurisdictions, different rules? Are these different initiatives pointing to the same direction or they seem miles apart?
E-commerce is something most of us take for granted in everyday activities and tax is something we all consider inevitable. The meeting of the two creates challenges for regulatory authorities when they are faced with the task of taxing online commercial activities. It may be the complex nature of taxation (the main focus will be on consumption taxation) or even the character of cyberspace that present the challenges. That has not discouraged authorities around the globe to embark on initiatives, some proven more successful than others, in order to face and tackle these challenges.
This paper will briefly set the background by referring to the initial thoughts on regulating this contentious area, bringing into the discussion the World Trade Organisation and the Organisation for Economic Co-operation and Development. The main discussion will be the current regulatory initiatives on taxing e-commerce. I will examine the existing approaches not only from the European Union and the USA, but also try to draw on the practices from other jurisdictions such as Australia, Malaysia and Hong Kong.
Do these initiatives face in the same direction? Does it seem possible to remove the “local” concept when we are dealing with such a borderless issue? Is EU’s approach the one that other jurisdictions should consider further with the perspective of adopting features of it? The paper will try to answer the above questions and present all the current initiatives on e-commerce taxation, with the view to examine the feasibility of eliminating or reducing national fiscal restrictions and the need for more international harmonization on the issue in question.
Sophie Stalla- Bourdillon
sophie.stalla-bourdillon@eui.eu
Regulating the electronic marketplace through extraterritorial legislation: the example of “Adwords”
If Internet is not the cause of the current normative crisis suffered by states, it is certainly one of the best examples of the regulatory difficulties experienced by public authorities, whose legitimacy to regulate behaviour is seriously challenged. This said, it is an illusion to think that cyberspace is beyond the reach of states and that the Law has been all of a sudden substituted by social or better technical regulation. States have always been present in cyberspace, even if the forms of their interventions have changed from time to time.
Furthermore, the problem raised by the regulation of Internet lies more in the fact that too many laws claim to be applicable rather than too little. It is true that the terms of the governance of Internet are still hotly debated. Nonetheless, in the meantime, national tort laws have been used at the international level to frame conducts on the electronic marketplace, and in particular, the conducts of multinational actors whose strategies are sometimes clearly built to avoid the application of burdensome legislation. This is the case of one the major providers of information location tools, Google, whose service “Adwords” has recently been feeding Case Law, at least in France.
This paper thus seeks, from this case study, to highlight the danger of overregulation in the cyberspace, as well as the means to lessen the cross-border externalities generated by the application of extraterritorial legislation. Indeed, while the persistence of cultural differences makes it necessary to allow states to react in case of damaging effects felt within their borders, the limits of private international law force law-makers to frame adequately the liability regimes of private actors whose role of gatekeeper makes them able to segment the electronic market.
Gavin Sutter
g.sutter@qmul.ac.uk
Shoot the messenger
This abstract presents a think-piece which is very much a work in progress. My title reflects that of a paper I presented at BILETA Conference in Amsterdam, in 2002. Then, I was concerned with the development of ISP liability in English law, and focussed upon what I perceived as a need to ensure that the ISP – the middle-man, or messenger, in effect – did not face undue liability in respect of third party provided content. I now return to that field with a very different attitude: in essence, having spent some years studying the internet and the myriad issues arising from the desire to control unacceptable material (whatever the nature of the latter, which will vary according to state, mode of government, and culture), it is clear that rather than attempting to regulate at source or at the consumer end, any effective enforcement strategy must consider the role of the ISP in identifying and removing unacceptable content. The question, then, becomes one of approach: how best (both in terms of efficiency and ‘fairness’) can the ISP’s role in the control of internet content be facilitated by law? There exists a wide spectrum of approaches, from the ‘Great Firewall of China’ to the Communications Decency Act, via the Electronic Commerce Directive. These (and other relevant examples) will be considered from the point of view of a service provider’s utility as a point of content control. Naturally, this analysis will take an appropriately broad view as to what constitutes a service provider, given caselaw across Europe in recent years relating to the liability of such entities as Google, eBay, and so on. The paper will also consider whether and how a self-regulatory (or even co-regulatory) approach, possibly based on the notion of an online ‘social contract’, might work at an industry level.
Dr. Andrew W. Torrance & Dr. Bill Tomlinson
torrance@ku.edu
PATENTS AND THE REGRESS OF USEFUL ARTS
Patent systems are often justified by an assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems. However, little empirical evidence exists to support this assumption. One way to test the hypothesis that a patent system promotes innovation is to simulate the behavior of inventors and competitors experimentally under conditions approximating patent and non-patent systems. Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems (“PatentSim™”), this study compares rates of innovation, productivity, and societal utility. PatentSim™ uses an abstracted and cumulative model of the invention process, a database of potential innovations, an interactive interface that allows users to invent, patent or open source these innovations, and a network over which users may interact with one another to license, assign, buy, infringe, and enforce patents. Data generated thus far using PatentSim™ suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p<0.05), productivity (p<0.001), and societal utility (p<0.002) than does a commons system. These data also indicate that there is no statistical difference in innovation, productivity, or societal utility between a pure patent system and a system combining patent and open source protection. The results of this study are inconsistent with the orthodox justification for patent systems. However, they do accord well with evidence from the increasingly important field of user and open innovation. Simulation games of the patent system could even provide a more effective means of fulfilling the Constitutional mandate “to promote the Progress of…useful Art” than does the orthodox assumption that technological innovation can be encouraged through the prospect of patent protection.
Peggy Valcke & Marieke Lenaerts
Peggy.Valcke@law.kuleuven.be
Looking for the Author, the Editor and the Publisher in UGC:
New Models for Legal Liability of UGC Intermediaries
Since its apparition in 2005, User-Generated Content (UGC) has grown explosively. The huge success of many UGC platforms (such as Youtube, Facebook, MySpace) predicts a further growth in the future. UGC includes all content put online by users, self-created or not. It exists in many forms. Traditional forms include blogs (Blogger), wikis (Wikipedia), multimedia sharing services for photographs (Flickr), videos (YouTube) or podcasts (Odeo) and tags. More recent are the social and professional networking sites (Facebook and LinkedIn) and the virtual worlds (Secondlife). UGC can be text-based, graphic-based, audio, video or mixed. The growth of UGC is a result of widespread broadband technology and high-quality electronic material at everybody’s reach. This vast new trend that allows users to play an active role in the creation of content and to evolve from consumers to prosumers, creates many great opportunities such as freedom of speech, citizen journalism and new commercial possibilities. However, the new virtual world also opens doors for malicious intent. The difficulty to combat illegal material (child pornography, hate speech) or otherwise harmful material (intrusions on privacy, e-defamation), the ease to operate for stalkers, hackers and identity thieves, plus the massive infringements of copyright constitute major challenges for the further development of UGC. In a complicated system involving many different actors, who to address when illegal or damageable material is found online? This paper aims at discussing the issue of liability for UGC, with a special focus on the following questions: What is the current legal status of intermediary providers when it comes to liability issues?
• Are providers of UGC platforms more like broadcasters (being held responsible
• for the content they distribute), or more like telecommunications operators or
• internet access and service providers (enjoying the safe havens of the ECommerce
• Directive)?
• Could the “cascade system” for liability in the print sector – whereby the
• publisher is only held liable if the editor is unknown, and the editor only if the
• author is unknown (a system originally designed to prevent private censorship and
• hence, foster the free flow of information) – serve as a model for setting the
• boundaries of liability of UGC platform providers?
In our paper we will critically examine existing liability systems (both in sector regulation and in general tort law). We will search for both similarities and differences between the roles of traditional actors in the information value chain, on the one hand, and new intermediaries, such as ISP’s and UGC platform providers, on the other hand. The paper aspires to formulate recommendations for a clearer definition of the scope of legal liability of new UGC intermediaries for illegal and harmful content disseminated via their platforms.
Thipsurang Vathitphund
thipsurang_vat@utcc.ac.th
Access to Knowledge Difficulties in Developing Countries: Focusing on Access to Copyright Works in the Digital Environment.
Copyright law has always been tuning a balance between the interests of creators and those of the public. It gives strong and effective right protection and serves the needs of copyright owners to obtain fair economic return on their intellectual property. At the same time, it provides reasonable access to the public in order to encourage creativity, innovation, research, education, and learning. In the digital environment, easily access to copyright works comes up with several problems to the copyright owners. Developed countries, where the countless copyright works have been created, seek more protection which results in the World Intellectual Property Organization (WIPO) Internet Treaties. However, the limitations and exceptions to the author exclusive rights in the international level are not clearly specified. The overprotection of copyright could happen and impact on social justice principles by unreasonably restricting the public to access to the information and knowledge. Developing countries, who truly need the knowledge for experimentation, consequently affect from this problem. They, however, show the great movement by mutually proposing the Access to Knowledge (A2K) Treaty which is integrated in WIPO Development Agenda in order to create the international framework of principles to enhance A2K and facilitate technology transfer. Nowadays, this issue has not been finalized. This paper is therefore proposed to study the aspect of A2K movement, the perspective of developed countries and developing countries regarding this issue, and the new framework to foster greater access to knowledge in the digital environment for developing countries.
Sittiphol Viboonthanakul
sv503@york.ac.uk
E-Commerce and Tax Avoidance: A New Challenge to Governments in the Age of Globalization
In recent years, economists have begun to investigate the impact of internet shopping (e-commerce) on smuggling and the associated loss in tax revenues. The evidence thus far has been mixed, with some studies concluding that the tax loss is substantial, while others find little impact on tax revenues. Unlike previous studies, this paper uses disaggregated panel data and econometric methods to estimate the effect of e-commerce on the smuggling of various types of commodities. We find that e-commerce has led to increased smuggling of some commodities, but not others, which helps explain the mixed tax-loss results that have been obtained using aggregate data.
Keywords: E-Commerce; Smuggling; Tax Loss
Faye Fangfei Wang
fwang@bournemouth.ac.uk
Re-examination of online contracting rules: Can the UN Convention enhance legal certainty?
The United Nations Convention on the Use of Electronic Communications in International Contracts (the UN Convention) is the newest international legislation in forming contracts online. However, whether it is sufficient to enhance legal certainty and commercial predictability is still an issue for debate. This paper targets at the obstacles that electronic contracting has faced, and seeks answers to whether the UN Convention can meet the challenge of regulating electronic contracts. It, firstly, examines the validity and effectiveness of electronic offer and acceptance. Secondly, it discusses the legal concerns on the availability of online contract terms and conditions. It finally proposes on what future improvements that the UN Convention may need to make to remove legal uncertainty and boost confidence of online contracting.
Nigel Wilson
nigel.wilson@barchambers.com.au
Regulating the Information Age – How will we cope with (technological) change?
Abstract: The “information age” presents major challenges for modern society and the courts, legislatures and the legal profession. General legislative provisions have been readily applied to the cyber-world and to modern business practices. Where necessary, legislatures have introduced specific legislation to protect the public from unfair or inappropriate business practices which involve the use of technology in an unsuitable manner. Consistent with international objectives, a central element of the regulation of e-commerce and the cyber-space environment will be the protection of individual human rights, particularly the right to privacy. Human rights concepts raise particular challenges in relation to the regulation of the modern, technology-intensive economy. Courts, legislatures and practitioners will need to remain abreast of developments in technology as well other trends in society in order to ensure that regulation in the information age is timely, cost-effective and consistent. Appropriate data protection and document retention policies will be a critical component of effective risk management and compliance programs and a major issue in litigation in the information age.
Nigel Wilson
nigel.wilson@barchambers.com.au
Harmony or Hegemony? Human Rights, Privacy and Religion – Celebrating a Diamond Jubilee or Holding a Rough Diamond
The Universal Declaration of Human Rights is celebrating its 60th anniversary and has been adopted, but not necessarily enacted, by most jurisdictions throughout the world into their domestic law. The United Kingdom is celebrating the 10th anniversary of its Human Rights Act 1998 and in Australia a Commonwealth Bill of Rights is under consideration, one State and one Territory having recently adopted the United Kingdom’s legislative model.
The Information Age is a world dominated by technological change, globalisation and the rise of religious activity and interest. The fundamental freedoms espoused by the Universal Declaration, including the right to privacy and personal freedoms including freedom of religion and belief (and non-belief), can be better protected by uniformity. Regulation in such an environment can be more responsive to these international trends if it is consistent with international obligations and expectations.
With the advent of increasing numbers of privacy-invasive technologies with international application and appeal, the protection of fundamental human rights can only be assured by internationally consistent legal frameworks and legislation. Uniform international human rights principles will advance cross-border co-operation to enforce privacy, security and consumer protection laws, ensure the security of critical information infrastructures and protect individuals’ digital identities.
The challenge for international democracies is to identify and emphasise the benefits of a consistent model of human rights legislation and judicial method in their interpretation. In so doing, the benefits of comity and harmony can be achieved and the criticism of hegemony can be avoided.
Nan Zhang
n.zhang@qmul.ac.uk
How to Reach the Cross-over Point of Maskus Curve in the Chinese Intellectual Property Law Enforcement?—Relive the Ancient culture!
Today, China has built up a complete IP law system after her thirty years legislative development and legal reform. A voice of criticism from the international IP community is that the implementation and the enforcement of the IP laws would be very difficult. Here we shall analyze this issue by Maskus Curve. Maskus observed the pattern of the transaction of a country from an “IP appropriator” to an “ IP protector” in its economy development. The pattern is supported by the U. S policy during the Industrial Revolution, Japanese policies in the 1950s and 1960s, and Korean and Taiwanese policy in the 1980s and early 1990s:
“During the earlier stages of the industrial development circle, for structural and cost reasons, the national interest lies in ‘borrowing’ and imitating foreign technology. At a certain crossover point, there are enough local innovators seeking to protect their investments in technology that the country’s interest in protection begins to outweigh its interest in appropriation and industrial policy shift”
Meanwhile, Fredrick Abbott predicted that given the pace of Chinese industrialization and investment in education and research, the cross‐over point in Maskus Curve may come by 2015 that China will be turned into a “IP protector” country.3 2015 is only six years ahead from present. We may bring forward several questions: in such a short time, by which effective approach, China will improve the criteria from an “IP appropriator” to an “ IP protector”? Since the general
public and IP community are familiar their own culture, is it possible for us to relive the ancient wisdom into modern Chinese IP enforcement? The readers will find out the answers and analysis in this BILETA Conference presentation and paper.
References Keith Maskus, Intellectual Property Rights in the Global Economy, 2000, Chapter 4. Also Maskus
Curve was commonly quoted in articles related to Chinese IP development, for instance, Frederick M.
Abbott, China in the WTO 2006: “Law and Its Limitations” in the Context of TRIPs, WTO Law and
Developing Countries, edited by George A. Bermann and Petros C. Mavroidis, 2007, Cambridge
University Press, P. 74
