Jurisdictional and Ownership Issues relating to E-commerce 26

Jurisdictional and Ownership Issues relating to E-commerce 26 March 2001 Peter Bullock Masons Information & Technology Law Group peter. bullock@masons. com

Introduction l the drivers for e-commerce l who owns what on the Internet? l will ISPs be liable for their subscribers’ breaches of copyright? l which court has jurisdiction?

The drivers for e-commerce old economy - start with the product, go on to market it new economy - start with the delivery concept, ‘value proposition’, then think of a product The focus is therefore on l market share l intellectual property rights l avoiding brand dilution (framing/deep linking/metatags)

Who owns what on the Internet? l copyright protection fully applies to the Internet l what is ‘public domain’ and is it relevant? l should not post information without authorship or licence

Copyright (cont’d) l international protection (WIPO) – – authors of literary and artistic works will enjoy the exclusive right of: “authorising any communication to the public of their work, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and time individually chosen by them” covers interactive on demand services (E-commerce, VOD, MP 3)

Copyright (cont’d) l ease of access and ability to copy l copyright in: – – – text graphics and photographs sound recordings, film and animation software code (HTML, Java etc. ) the web-site itself

Hyperlinking l is the hyperlink a breach of copyright? No copying involved l what about framing? – Shetland Times Limited -v- Wills l deep-linking (may be passing off)

Are ISPs liable for subscribers’ IP breaches? l guidance for ISPs – – check you have the right to remove infringing material act quickly on any complaint if in doubt, remove no requirement to monitor; this could turn you into a ‘publisher’

ISPs’ liabilities (2) l breach of copyright – Hong Kong has no ‘mere conduit’ legislation analogous to l l US Digital Millennium Copyright Act Sec. 202; no liability for content by reason of intermediate and transient storage in the course of transmitting, routing or providing connections (subject to conditions that third person initiates communication) EU e-commerce directive (intended) no liability for service providers for content so long as no actual knowledge

Which laws apply? old economy - often much more focus to the target markets new economy - usually possible to transact on-line anywhere in the world Issues include l heavily regulated markets (financial services; gambling etc. ) may give rise to problems in numerous jurisdictions. May require tangible efforts being made by vendor to screen out orders from unapproved jurisdictions l may be necessary to apply laws of some unexpected jurisdiction l in relation to UDRP, clear evidence that arbitrators are resorting to international principles of Internet and IP law

Which court has jurisdiction? (1) l promotional material containing your registered trade mark may infringe someone else’s mark in another country – trade marks are territorial – cyberspace knows no boundaries l Hard Rock Café -v- Morton

Which court has jurisdiction? (2) l Blue Note Café - Bensusan Restaurant Corp -v- King – – creation of the website (and even a hyperlink to the New York site) were actions performed by persons physically present in Missouri and not in N. Y. C. nothing D had done was purposefully directed to N. Y. State

Which court has jurisdiction? (3) l American Network, Inc -v- Access America/Connect Atlanta – only 0. 08% of D’s subscribers were in N. Y. and D earned only $150 pcm of its monthly revenue of $195, 000 from N. Y. – but; held not necessary for D to derive substantial revenue from its commerce in N. Y. – there were ‘tangible manifestations’ that D was ‘trying to reach a New York market’

Jurisdiction - recent case l Licra -v- Yahoo! Inc. – claim by French league against racism against US based web-auction site; US site ordered to stop Nazi related sales being available on the Internet in France