WIPO: Interim Report of the Second Internet Domain Name Process

The World Intellectual Property Organization (WIPO) is seeking extensive public comment on an interim report which will culminate in a series of recommendations that aim to prevent abusive registration of domain names on the Internet. Full text of the interim report (the third and final request for comments in this process):

WIPO interim report
WIPO interim report annexes

At the request of its member states, WIPO initiated last July the Second WIPO Internet Domain Name Process to study the abuse of certain identifiers in the Internet domain name system. The first such WIPO Process (1998-1999) made recommendations targeting the abusive registration of domain names that infringe trademarks or service marks - known as "cybersquatting". The Second WIPO Process examines the bad faith, abusive, misleading, or unfair use of:

• personal names;
• International Nonproprietary Names (INNs) for pharmaceutical substances;
• names of international intergovernmental organizations;
• geographical indications, indications of source and geographical terms; and
• trade names.

The comments received on this interim report will, together with the discussions at the regional consultations, form the basis of recommendations expected to be published in WIPO's final report in mid-2001. The final report will be submitted to WIPO's member states and provided to the Internet community, including the Internet Corporation for Assigned Names and Numbers (ICANN).

Persons wishing to comment on the interim report can do so by writing to WIPO, submitting their comments online at http://wipo2.wipo.int/process2/rfc/index.html, or by email to process.mail@wipo.int or by attending the regional consultations.

Comments are requested to be submitted by June 8, 2001.
[Source: WIPO Press Release from April 12, 2001]

OLG München: AOL haftet für Urheberrechtsverletzungen trotz § 5 Abs. 2 TDG

Nach Ansicht der 29. Zivilkammer des OLG München kommen bei der Haftung des Access-Providers für Urheberrechtsverletzungen die üblichen Regeln der Mittäterschaft im Urheber-recht zur Geltung. Eine Haftung kommt nicht nur bei Kenntnis des Providers von den Urhe-berrechtsverletzungen in Frage, sondern auch bereits bei einer adäquat kausalen Mitwirkung. Dies bedeutet im Ergebnis, dass die Haftungsprivilegien des § 5 Abs. 2 Teledienstegesetz nach Ansicht der Münchner Oberlandesrichter im Urheberrecht nicht zur Anwendung kom-men. Die Entscheidung wird mit Anmerkung in CR Heft 5/2001 veröffentlicht; der vollstän-dige Wortlaut des Urteiles steht im Volltext zum Download bereit.

Urteil des OLG München vom 8. März 2001 - 29 U 3282/00 Word-Dokument (90 KB)

Charts of Pending Federal Legislation in the US

A significant body of Internet-related legislation has surfaced early in the 107th Congress-much of it involving online privacy, broadband deployment, Internet taxes and unsolicited commercial e-mail. The following memorandum summarizes the legislative initiatives affecting privacy and other Internet-related issues that have been introduced so far in the 107th Congress. The Internet is attracting considerable interest in the Congress and new proposals should be expected. Little, if any, debate has taken place on these bills, but many committees are poised to hold hearings to address them in upcoming weeks.

Memorandum regarding legislative developments Word-Dokument (50 KB)
Congessual Outlook on 107th Congress Word-Dokument (32 KB)

EU: Communication on Improving Security and Combating Computer-related Crime

The European Commission adopted on 26.1.2001 a Communication to the Council and the European Parliament (COM(2000)890) entitled Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime. This Communication discusses the need for and possible forms of a comprehensive policy initiative in the context of the broader Information Society and Freedom, Security and Justice objectives for improving the security of information infrastructures and combating cybercrime, in accordance with the commitment of the European Union to respect fundamental human rights. In the short-term, the Commission believes that there is a clear need for an EU instrument to ensure that Members States have effective sanctions in place to combat child pornography on the Internet. In the longer-term, the Commission will bring forward legislative proposals to further approximate substantive criminal law in the area of high-tech crime.

The Commission intends also to set up an EU Forum in which law enforcement agencies, Internet Service Providers, telecommunications operators, civil liberties organisations, consumer representatives, data protection authorities and other interested parties will be brought together with the aim of enhancing mutual understanding and co-operation at EU level. The Forum will seek to raise public awareness of the risks posed by criminals on the Internet, to promote best practice for security, to identify effective counter-crime tools and procedures to combat computer-related crime and to encourage further development of early warning and crisis management mechanisms.

Creating a Safer Information Society by Improving the Security of Information Infrastructures and Combating Computer-related Crime (PDF-File, 114 kB)


EU: Commission launches out-of-court Complaints Network  

The European Commission has launched on 1 February 2001 an out-of-court complaints network for financial services to help businesses and consumers resolve disputes in the Internal Market fast and efficiently by avoiding, where possible, lengthy and expensive legal action. This network, called FIN-NET, has been designed particularly to facilitate the out-of-court resolution of consumer disputes when the service provider is established in an EU Member State other than that where the consumer lives. The network brings together more than 35 different national schemes that either cover financial services in particular (e.g. banking and insurance ombudsmen schemes) or handle consumer disputes in general (e.g. consumer complaint boards). Both on- and off-line services are covered. The difficulty of obtaining out-of-court redress is a barrier to the development of cross-border services, particularly in the financial sector where it risks undermining the growth of electronic commerce.

There is a growing demand for alternative dispute resolution mechanisms (ADRs) that do not involve formal legal action given the range and sophistication of services available to European consumers and the development of cross-border trade. Both supply and demand for such services are likely to increase with the introduction of euro.

Memorandum of Understanding on a Cross-Border Out-of-Court Complaints Network for Financial Services in the European Economic Area (PDF-File, 40 kB)


EU: Study reveals annual costs of "Junk" e-mails 

Internet subscribers world-wide are unwittingly paying an estimated euro 10 billion a year in connection costs just to receive "junk" e-mails, according to a study undertaken for the European Commission. The study, which provides detailed information on the junk mail (or "spam") phenomenon in both the US and the European Union, forms part of the Commission's ongoing efforts to ensure that the development of the internet and e-commerce does not undermine Europe's rules on Internet privacy and data protection. The study also compares the different approaches adopted by EU Member States in implementing the EU Directives on data protection into national law.

The study's analysis of e-mail marketing concentrates on the most-developed market, the US, and details how, in response to the rapid growth of junk mail, the e-mail marketing industry is working with internet users towards systems of data collection and exchange based on the express permission of the user. In looking at legal protection against junk mail or "spamming" in the EU, the study finds that the application of the concepts enshrined in the existing Directives are applied in different ways across the EU. Protection is afforded via either opt-outs (e.g. a box to tick if you do not wish to receive unsolicited information) or opt-ins (a formal request to receive such information). Opt-ins are required in Austria, Denmark, Finland, Italy and Germany. The speed with which Internet technology is moving was recognised in an undertaking made in a Commission proposal of July 2000 to revise and update the Directive on data protection and privacy in the telecommunications sector (97/66/EC). This proposal favours the opt-in approach. This is supported by the study which found that, from the point of view of industry, "permission based marketing" is proving a more effective and viable method of data collection. The study also found that the opt-in approach would serve to bolster consumer confidence in the EU. Differences in how Member States apply the existing EU Directives risk, the study indicates, giving rise to potential barriers to the free movement of data within the Internal Market.

The Commission monitors the efficient operation of this legislation in close co-operation with Member States' data protection experts, who meet regularly in a Working Party established by the 1995 Directive (Article 29). In November 2000, the Article 29 Data Protection Working Party issued a formal opinion on the Commission proposal to update Directive 97/66 as well as a report on "Privacy and the Internet" that looked at two key areas: the industrial uses of data and the legal protection of data. To date, the Commission has decided to bring Ireland, Luxembourg, France and Germany to the European Court of Justice for failure to notify the measures these administrations are taking to implement the provisions of 95/46/EC in national law - the implementation deadline was October 1998.

Full text of the report in French (PDF-File, 780 kB)
Summary of the report in English (PDF-File, 72 kB)
[ Source: Press statement of the European Commission from February 2, 2001 ]


USA: Radio Signal over Internet not Exempt from Digital Performance Right  

The US Copyright Office has amended its regulations to clarify that transmissions of an AM/FM broadcast signal over a digital communications network, such as the Internet, are subject to a sound recording copyright owner's exclusive right to perform his or her work publicly by means of digital audio transmissions. Broadcasters who choose to transmit their radio signals over a digital communications network such as the Internet may do so under a compulsory license. The Office has determined that an FCC-licensed broadcaster is not exempt from a copyright owner's digital performance right for sound recordings under these circumstances.

Section 114(d)(1)(A) of title 17 of the United States Code exempts a noninteractive performance of a sound recording by means of a digital audio transmission from the sound recording copyright owner's exclusive rights when the performance is part of "a nonsubscription broadcast transmission." Section 114(j)(3) defines a broadcast transmission as "a transmission made by a terrestrial broadcast station licensed as such by the Federal Communications Commission. The Office concluded that for purposes of section 114, a "broadcast transmission" includes only over-the-air transmissions made by an FCC-licensed broadcaster under the terms of that license.

Final Rule: radio over internet 65fr77292


Amended Proposal for a Council Regulation on Jurisdiction  

The European Commission has published an amended version of its proposal for a COUNCIL REGULATION on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters on October 26, 2000. The directive raises concerns over its impact on e-commerce. (PDF-File, 148 kB)


Software patents in Europe 

On 19 October 2000 the European Commission has launched consultations via the Internet on the patentability of computer-implemented inventions. The absence of EU-harmonised legislation may be a potential barrier to industrial growth, competitiveness and the development of the Internal Market. Interested parties, the public at large and Member States are invited to comment until 15 December 2000 on the basis of this consultation paper.

Considerable debate has taken place in Europe recently about the patentability of computer software. Some consider that patents in this field tend to stimulate innovation in this sector by providing adequate protection of the substantial amounts of money and resources that can be required to develop sophisticated and specific software. Others believe that patents will on the contrary stifle fair competition and hinder innovation. The aim of the consultation is to help the Commission to identify the best approach to the issue so as to strike the right balance between promoting innovation and ensuring adequate competition in the market place.

Consultation paper of the European Commission (PDF-File, 43 kB)

In the light of recent developments in the United States the Commission launched an independent study on the economic impact of the patentability of computer programs. The study appears to favour a harmonisation and clarification of European patent laws on the issue based on the status quo in Europe. It considers that any move to strengthen patent protection in the software industry cannot claim to rest on solid economic evidence.

Study "The Economic Impact of Patentability of Computer Programs"
(PDF-File, 140 kB)
[Source: press statement of the European Commission of 19 October 2000 ]

Seagram v. MP3.com

US District Court Southern New York, ruling delivered by Jed S. Rakoff (Judge) on September 8, 2000 (PDF-File, 21 kB)

ruling in MP3.com - unofficial version
http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-09078.PDF

Online Posting of DeCSS held illegal

New York Southern District Court Judge Lewis Kaplan ruled that hacker publication 2600 could not publish online a software program dubbed DeCSS, which allows DVD movies to be decoded and played on personal computers. The court ruled that posting the code or linking to direct downloads of the program violates copyright law because it is an unauthorized way of breaking through the movie industry's copy protections.

Court opinion (PDF-File)

Final judgement (PDF-File)

Court order (PDF-File)   
[CR International]

Microsoft-Proceedings quo vadis?

As expected, on August 15, 2000, the US Department of Justice filed an exhaustive brief with the US Supreme Court asking for a hearing before the Supreme Court. An immediate final decision of the highest court would be necessary due to the economic importance and the negative impact of any further delay of the antitrust-proceedings against Microsoft.
The brief is available at: http://www.usdoj.gov/atr/cases/f6100/6198.pdf

On August 22, 2000, Microsoft pleaded for an appeals court hearing in reply arguing that the need for a thorough review would outweigh the need for a fast resolution.
Microsoft's reply is available under: http://www.microsoft.com/presspass/trial/appeals/08-22screply.asp  
[CR International]
 

Data protection: Commission adopts "safe harbor principles" 

The European Commission has adopted a Decision determining that an arrangement put in place by the US Department of Commerce known as the "safe harbor" provides adequate protection for personal data transferred from the EU. At the same time, the Commission has adopted similar Decisions concerning Switzerland and Hungary. The "safe harbor" arrangement, which as a result of this Decision will be fully up and running by November, is the fruit or more than two years of dialogue between the Commission and the US Department of Commerce. The dialogue was launched to head-off the possibility that data transfers to the US might be blocked following the entry into force in 1998 of the EU's Data Protection Directive, which provides that personal data can only be transferred to third countries providing "adequate protection". Under the "safe harbor", US companies can voluntarily adhere to a set of data protection principles recognised by the Commission as providing adequate protection and thus meet the requirements of the Directive as regards transfers of data out of the EU.  more...
[CR International] 
 

Commission proposes overhaul of rules for electronic communication 

The European Commission adopted today a package of legislative proposals designed to strengthen competition in the electronic communications markets in the EU for the benefit of consumers and European economy. It aims to drive forward the liberalisation of telecommunications markets by adapting regulation to the requirements of the Information Society and the digital revolution. The package puts particular emphasis on the stimulation of affordable high-speed Internet access and providing a light-touch legal framework for market players. This package of proposals represents a comprehensive reform of the regulatory framework for telecommunications in Europe and is aimed at providing the best conditions for a dynamic and competitive industry in Europe. (Especially regarding the unbundling of the local loop)  more...
[CR International] 
 

Commission proposes the creation of a Community Patent 

The European Commission has proposed the creation of a Community Patent to give inventors the option of obtaining a single patent legally valid throughout the European Union. The proposal would significantly lessen the burden on business and encourage innovation by making it cheaper to obtain a patent and by providing a clear legal framework in case of dispute. The Lisbon and Feira European Councils cited the creation of a Community Patent as an essential part of Europe's efforts to harness the results of research to new scientific and technological developments and so contribute to ensuring a competitive, knowledge-based economy in Europe. The Summits recommended that the Community Patent should be available by the end of 2001.  more...
[CR International] 
 

EU: Proposal for new VAT treatment of electronically delivered services 

The European Commission has presented a proposal for a Directive to modify the rules for applying value added tax (VAT) to certain services supplied by electronic means as well as subscription-based and pay-per-view radio and television broadcasting. The objective of the proposal is to create a level playing field for the taxation of digital e-commerce in accordance with the principles agreed at the 1998 OECD Ministerial Conference and to make compliance as easy and straightforward as possible. The proposal mainly concerns the supply over electronic networks (i.e. digital delivery) of software and computer services generally, plus information and cultural, artistic, sporting, scientific, educational, entertainment or similar services. The proposal would ensure that when these services were supplied for consumption within the European Union, they were subject to EU VAT, and that when these services were supplied for consumption outside the EU, they were exempt from VAT. The changes modernise the existing VAT rules to accommodate the emerging electronic business environment and to provide a clear and certain regulatory environment for all suppliers, located within or outside the EU. The proposal also contains a number of facilitation and simplification measures aimed at easing the compliance burden of business.

 See full text of the proposal http://europa.eu.int/comm/taxation_customs/proposals/taxation/com349_2000/com2000_349en.pdf
[CR International] 
 

EU: Proposal to tackle growing problem of electrical and electronic waste 

The European Commission has adopted a proposal for a Directive on Waste Electrical and Electronic Equipment (WEEE) and a proposal for a Directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment. The proposed Directives are designed to tackle the fast increasing waste stream of electrical and electronic equipment and complements European Union measures on landfill and incineration of waste. Increased recycling of electrical and electronic equipment, in accordance with the requirements of the proposal for a WEEE Directive, will limit the total quantity of waste going to final disposal. Producers will be responsible for taking back and recycling electrical and electronic equipment. This will provide incentives to design electrical and electronic equipment in an environmentally more efficient way, which takes waste management aspects fully into account. Consumers will be able to return their equipment free of charge. In order to prevent the generation of hazardous waste, the proposal for a Directive on the restriction of the use of certain hazardous substances requires the substitution of various heavy metals and brominated flame retardants in new electrical and electronic equipment from 1 January 2008 onwards. 

Full text of the Proposal: http://europa.eu.int/comm/environment/docum/00347_en.pdf
[CR International] 
 

WIPO: Patent Law Treaty Finalized 

Member states of the World Intellectual Property Organization (WIPO) on Thursday adopted by consensus an international treaty that will simplify and streamline procedures for obtaining and maintaining a patent. The Patent Law Treaty (PLT), which opens for signature on June 2, 2000, will enter into force once it has been ratified by ten countries.

Once it enters into force, the PLT will harmonize and streamline, on a worldwide basis, formal patent procedures relating to national and regional patent applications and maintenance of patents. Inventors seeking patent protection must as a first step meet certain formality requirements in order to avoid rejection of their application and a consequent loss of rights. These formalities currently vary from one country to another. In standardizing them, the PLT offers both inventors and national and regional patent offices a number of advantages:

• use of standardized forms and simplified procedures that reduce the risk of error
• cost reductions for inventors, applicants and patent attorneys
• elimination of cumbersome and complicated procedures
• improved efficiency of patent offices and lower operating costs
• possibility to introduce electronic filing of patent applications and related communications
• reliance on a predictable maximum set of patent formalities in all countries party to the PLT (including the incorporation of provisions under the Patent Cooperation Treaty (the WIPO-administered international patent application system) regarding form or contents of an international application), resulting in easier access to foreign patent systems;
• Exceptions from mandatory representation
• Enhanced legal certainty for applicants filing in their home country and abroad
• Relief and re-instatement of rights in case of missing certain time limits
• Possibility to obtain a filing date, even if the main part of the application (description) is filed in a foreign language

The PLT achieves a major goal of international simplification by incorporating the requirements for PCT international applications into national and regional laws. Thus, under the PLT, the requirements and procedures for national and regional patent applications, and those for PCT international applications, will be harmonized. This will eventually lead to standardized formal requirements and streamlined procedures for all patent applications worldwide.

PT/DC/47 (June 2, 2000) 
PATENT LAW TREATY, REGULATIONS UNDER THE PATENT LAW TREATY AND 
AGREED STATEMENTS BY THE DIPLOMATIC CONFERENCE 
adopted by the Diplomatic Conference on June 1, 2000
(available in Adobe PDF and MS Word formats) 
[CR International] 
 

Final adoption of the e-commerce directive - no votes against 
In plenary session on 4 May, MEPs finally approved the adoption of the E-commerce Directive in its second reading. After a discussion on the evening of 3 May, 507 Parliamentarians voted on 4 May at 11:00 a.m.: 469 voted for, 38 abstained, none voted against. 

Since the EP accepted the proposal in the version of the common position reached in the Council on 28 February without adopting any amendments, there is no need to discuss the proposal again in the Council. The legislative procedure is thus completed (except formal aspects). This result was accomplished within a record time of less than 18 months (since the date of publication of the original Commission's proposal).

As soon as the text is published in the Official Journal, Member States will have - likewise - 18 months to implement the Directive.

The acceptance of an internal market directive in the EP without dissenting votes is a first. Commentators emphasised the pro-active and cooperative commitment of Ms Ana Palacio, responsible rapporteur and chairwoman of the legal committee. The E-Commerce directive could serve as a model for future decisions to guarantee that legal developments in the Community keep pace with the constantly accelerating development and innovation.

In the discussion preceding the vote parliamentarians emphasised that the task of the Commission is now to closely follow the implementation of the directive in Member States' national law and to pay special attention to a correct and brisk implementation.

The text of the directive can be found at:
http://europa.eu.int/comm/internal_market/en/media/eleccomm/index.htm

Press release of DG Internal Market / Commissioner Bolkestein

[CR International] 
 

Microsoft violated federal and state U.S. antitrust laws 

In the U.S. government's antitrust case against Microsoft, District Court Judge Thomas Jackson released his Conclusions of Law and Order on Monday April 3, 2000:“the Court concludes that Microsoft maintained its monopoly power by anticompetitive means and attempted to monopolize the Web browser market, both in violation of Sherman Antitrust Act, 15 U.S.C. § 2 . Microsoft also violated § 1 of the Sherman Act by unlawfully tying its Web browser to its operating system. The facts found do not support the conclusion, however, that the effect of Microsoft's marketing arrangements with other companies constituted unlawful exclusive dealing under criteria established by leading decisions under § 1. “
Conclusions of Law and Order
[CR International] 

Crime in Cyberspace
On April 27, 2000, the Council of Europe released a draft version of a Convention on crime in cyberspace for public discussion in order to enhance the consultation process with interested parties, whether public or private. Businesses and associations are particularly encouraged to share their comments with the experts involved in the negotiations before the final adoption of the text. Provisionally entitled "Draft Convention on Cyber-Crime", this Council of Europe text will be the first international treaty to address criminal law and procedural aspects of various types of offending behaviour directed against computer systems, networks or data as well as other similar abuses. This legally-binding text aims to harmonise national legislation in this field, facilitate investigations and allow efficient levels of co-operation between the authorities of different States. The text should be finalised by a group of experts by December 2000 and the Committee of Ministers could adopt the text and open it for signature as early as Autumn 2001. The text of the draft Convention can be found on the following website: 
http://conventions.coe.int/treaty/en/projets/cybercrime.htm

RIAA v. Napster, Inc.
US District Court Northern District of California, Opinion delivered by Marilyn Hall Patel (Chief Judge) on July 26, 2000
PDF-Datei, 349 kB

Napster's Brief Appealing Preliminary Injunction to the Ninth Circuit dated August 18, 2000: http://dl.napster.com/brief0818.pdf

Competition Policy in the World of B2B Electronic Marketplaces
B2B electronic marketplaces are software systems that allow buyers and sellers of similar goods to carry out procurement activities using common, industry-wide computer systems. The U.S. Federal Trade Commission held a two day public workshop on June 29 and 30, 2000, examining issues of competition policy that arise in connection with business-to-business ("B2B") electronic marketplaces.
Workshop 29.06.2000 (PDF-Datei)

Workshop 30.06.2000 (PDF-Datei)

RIAA v. MP3.com
US District Court Southern District of New York, Opinion delivered by Jed S. Rakoff (District Judge) on May 4, 2000
PDF-Datei, 21 kB

Earthweb, Inc. v. Mark Schlack
US District Court Southern District of New York, Memorandum and Order decided by William H. Pauley III (District Judge) on October 27, 1999
PDF-Datei, 86 kB

Transnational Issues in Cyberspace: A Project on the Law Relating to Jurisdiction
Report of the American Bar Association (ABA) Jurisdiction in Cyberspace Project empaneled in 1998
http://www.kentlaw.edu/cyberlaw/docs/drafts/draft.rtf