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Intellectual property and electronic
commerce
Susan Isiko Štrba
Customised Training Programme for Officials from Taiwan Bilateral and Multilateral Trade Agreements Negotiation and Dispute Settlement
Geneva 16 September 2013 – 13 December 2013
The Graduate Institute Executive Education Program
Outline
• Introduction
• E-commerce in the WTO
• The challenge
• Novel question/issue areas
E-commerce in the WTO - overview
• 2nd Min Conf. in 1998, adoption of Declaration on Global e-commerce. – Urged General Council to establish a comprehensive work program to
examine all issues arising from global e-commerce
• 4th MC. in 2001, agree to continue work on e-commerce as well to the moratorium on customs duties
• 8th MC in 2011 to 18 October 2013, discussions on a number of issues including: (i) Classification of the content of certain electronic transactions, (ii) development-related issues; (iii) fiscal implications of e-commerce; (iv) relationship (and possible situation effects) between e-commerce and traditional forms of commerce; (v) imposition of customs duties on electronic transactions; (vi) competition; Jurisdiction and application law and other legal issues
E-commerce in the WTO (2)
• The draft text Decision of the 2013 MC mandated the Work Programme to continue to “examine the trade-related aspects of, inter alia, – enhancing internet connectivity and access to information and
telecommunications technologies and public internet sites, – the growth of mobile telephony, – electronically delivered software, – cloud computing, – the protection of confidential data, privacy and consumer
protection.”
• Since 8th MC, no activity in the Council for TRIPS • Focus/Pace of technology?
The challenge
• Internet is a global multipurpose medium, – E-commerce not limited by borders or time Zones,
but
• IP laws are territorial • IP laws designed for the physical world • Consensus required to facilitate international
trade • As commercialization of the Internet continues to
gain momentum, need to develop a predictable legal framework for the protection of IP
Challenges (2)
• Shorter life cycles of many goods and services associated with the Internet and digital technologies call for the timely acquisition and enforcement of related IPRs
• Internet a system to promote sales (of tangible and intangible products), but also to deliver intangible products eg music, software
• Several issues emerge
Selected issues
• How do domain names affect trademarks and thus trade
• Should methods of doing business on the Internet be patentable
• Should Internet content, including online music, be subjected to copyright
• Which entity should be responsible for enforcement of IP on the Internet
• What role should be played by international organizations and governments
Domain names, trademarks and trade
• What are domain names? – Web addresses, “.coms”, “ULR addresses” or “net names”
• Why domain name in trade – Need a domain name to set up business on the Internet
• Role of trademark – Candidate for “cybersquatting”
• Uniform Domain Name Dispute Resolution Policy (UDRP) – Is a domain names dispute settlement – Administered by ICANN (Internet Corporation for Assigned
Names and Numbers)
Domain names cont’d
– Under the WIPO Arbitration and Mediation Centre
– Resolve cybersquatting and other disputes related to trademark domain names
– private
• Role of governments or international organizations? – Who should manage the dissemination and
registration of domain names in this new global environment
– Who should manage the disputes
Business methods
• Defn: processes related to e-commerce, Internet and Data processing involving:
– Financial services
– Electronic sales
– Advertising methods
– Other business or management practices
– (as long as the pass the test for patentability)
• Example of Amazon “one-Click” patent case
Examples of business methods patents
• Electronic delivery systems
• “electronic shopping carts”
• Methods of securing payment using credit cards and debit cards over the Internet
• System for managing personal privacy in a computer network
Patents, copyright and e-commerce
• Patents and e-commerce
– Most material on internet at technology intensive (computer and network technologies, both hard and software)
• Copyright and e-commerce
Internet/electronic content
• The role of technological measures in protecting the rights of owners – WIPO Internet Treaties
• Scope of rights (of IP owners and users of IP goods) and how existing laws apply – Google Book Search example
• Validity of contracts, eg in software
• enforcement, – Questions of jurisdiction and applicable law (activity)
Internet/electronic content (2)
• Entity responsible for enforcement
– Private companies or governments (eg ISP) – implications for trade
– Role of government in governance of e-commerce and internet (interests of users/creators)
Summing up
• Technology neutrality?
– country club rule making, eg TPPA
– Limits to technology neutrality