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The IPR-Helpdesk Handbook
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· Universidad de Alicante · Intellectual Property Law Institute of Jagiellonian University in Krakow · · European Research and Project Office GmbH ·
IPR-Helpdesk January 2007
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Table of contents:
Introduction ....................................................................................................................................................3
Information Society and Copyright ........................................................................................................ .......4
Copyright and the Internet .................................................................................................................... .....4
Software Copyright .................................................................................................................................. ..6
Open Source Software ........................................................................................................................ .......8
Open Content ............................................................................................................................................9
Technological Protection Measures .........................................................................................................10
Electronic commerce .............................................................................................................................. .....11
Electronic signature ....................................................................................................................... ......... .11
Electronic payments ................................................................................................................................ .12
The protection of personal data in e-commerce .......................................................................................14
Liability of Internet Service Providers .........................................................................................................16
Domain Names ............................................................................................................................. ........ .......17
Unsolicited Commercial Communications (Spam) .................................................................................... .20
Introduction
The term “information society” refers to a society in which information has become the
foundation of social and cultural life. Correspondingly, in such a society, information
technology begins to play a very important role. The concept of an information society has no
clear definition. Rather, it is based on the conviction that the present society differs considerably
from its previous forms, most notably the so-called industrial society. The main difference is the
role of information and knowledge in the economy. It is not natural resources, machines or
physical labour that influence the way societies work, but knowledge, information and
creativity. Understandably, the Internet has become the symbol of the information society.
“Information society” is often used not only to describe a general sociological concept but
to somehow define activities that are perceived as closely related to the information economy.
For example, almost everything involving the Internet and information technologies may be
related to the “information society”. Usually the term “information society” is used together
with the “traditional” terms denoting constructs and activities known long before the
“information society” came into being but which take on a new meaning in this new
environment. Therefore one may hear about copyright in the information society or business
transactions in the information society.
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On one hand, intellectual property has never been more important than in the information
society. After all, IP is based on information, and in the information society, information is the
key. On the other hand, the need for information to be accessible to anyone clashes with
intellectual property rights granting right holders control over protected information. New
digital technology, so closely associated with the information society, makes information easily
reproducible and undermines the control of IP right holders.
In this document, several legal topics that are commonly viewed as related to information
society have been chosen. The IP problems in the information society involve copyright issues
(including software protection). Technological protection measures are a means of specifically
protecting IP against the dangers associated with the information society. Spam is probably the
best known nuisance of the information society, and, needless to say, domain names came into
existence with the advent of the Internet. Since the information society has also brought about
some changes in the way we carry out transactions, it is useful to take a closer look at such
phenomena as e-signature and e-payments.
Information Society and Copyright
Copyright and the Internet
1.1 General rules concerning copyright protection on the Internet
The general rules concerning copyright protection apply to the Internet in the same way as
to other cases. This means that each work on the Internet, insofar as it is original and expressed
in a particular form, is eligible for copyright protection. To enjoy copyright protection, no
formalities (e.g. registration) are required.
1.2 What is protected by copyright on the Internet?
Copyright can protect various elements of a Web site: literary works, musical works,
photographs, pictures, and motion pictures. In particular, the following works can enjoycopyright protection on the Internet:
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a. databases – under EU law, the database is protected both by copyright and by a sui
generis right. A database can be protected by copyright insofar as the choice and the
arrangement of the information constitute original creations. If the preparation of a database
required a substantial investment by the maker in terms of quantity and/or quality, the database
can be protected by a special sui generis right.
b. computer programs – under EU law, a computer program is protected by copyright, as a
literary work, as long as it is original in the sense that it is the author's own intellectual creation.
Due to the broad definition of the reproduction right with regard to computer programs, almost
every use of a computer program will require the author's authorisation in the form of a licence.
c. Web sites - a Web site may be considered an original creation protected by copyright
because of its graphical aspect, or by the choice and the arrangement of the information
available. Furthermore, a Web site may be protected as a database under a sui generis right even
if its content is not eligible for copyright protection.
1.3 What is allowed/not allowed on the Internet?
a. scanning or downloading a work from the Internet – the "copy/paste" function,
downloads and scanning Web site content have become common and easy for many Internet
users. However, these acts constitute reproduction, which is the author's prerogative. In other terms, these acts have to be expressly authorised by the author or the entitled beneficiaries,
unless they are permitted as “fair use”.
b. hyperlinking and framing - creation of a link to another site does not generally require
the authorisation of the copyright owner on the linked Web site. Indeed, it is considered that
the creator of a Web site gives his tacit consent to the linking. However, certain types of linking,
such as framing, may be considered illegal if they mislead the user as to the identity of the true
owner of the Web site.
c. downloading MP3 files and making them available on the Internet – in principle, the
mere reproduction from a legally obtained CD to MP3 files on a hard drive for private purposes
is covered by the exception for private copy. The publishing of MP3s on the Internet is
considered a communication to the public. It is the author's prerogative and requires consent.
d. use of works with a "copyleft " or "copyfree" notice - "copyfree" is used by the author
to give a free licence to the user under very specific conditions. The directions for use on the
Web site should be checked to determine which uses are allowed by the copyright owner. An
author might indeed wish to exclude commercial use of his work.
e. use of "shareware" and "freeware" – shareware is software distributed for the purpose
of evaluation by the end-user. After a trial period, the user is supposed to obtain a licence or
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stop using the software. Generally, the author grants a free licence for use but does not grant his
economic rights to the software. This licence is often granted under very specific conditions.
Freeware is entirely free.
1.4 Authorisation by the holder
The use of a work created by a third party requires the prior consent of the copyright owner
if the planned use involves the use of all or part of the rights granted to the author. In order to do
so, it is necessary to identify the holder of the copyright for the work that is to be used.
Authorisation for the use of copyrighted materials on the Internet can be obtained through:
1. transfer of copyright, which in most countries should be done in writing;
2. obtaining a licence for the use of copyrighted material.
Software Copyright
2.1 Introduction
Software copyright law is something that affects anyone who uses a computer and most
particularly businesses – it is not uncommon for a business to face civil or even criminal
proceedings for software copyright infringement. For a computer to work, it has to be
programmed. These programs are referred to as "software", to distinguish them from
"hardware" (the physical objects that make up a computer system, such as microchips,
processors, the keyboard, etc.).
Examples of software are operating systems, such as Microsoft Windows and Linux, Web
browsers, word processors, spreadsheets, software for making presentations, etc. In order to
understand the law of software copyright, it is necessary to understand two technical terms:
"source code" and "object code".
"Source code" is a computer program in the form written by a programmer (in a language
such as Perl or C).
"Object code" is a computer program converted into the form in which a computer would
run it (in "machine language", i.e. ones and zeros). To convert source code into object code, you
use a special computer program called a "compiler".
As far as copyright law is concerned, both of these forms are covered by the definition of
"computer program". Furthermore, the two forms are regarded as equivalent, in the sense that
whoever owns the copyright in the source code will automatically own the copyright in theobject code. Computer languages are not themselves pieces of software. For example, no one
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owns a copyright in the computer language C or in the individual words that make up that
language.
2.2 What are the consequences of copyright protection?
Specifically, with a few very limited exceptions, it is unlawful for anyone other than
the owner of the rights to run, copy (there is an exception for the making of a "back-up" copy
– that is a spare copy, in case the original is erased or damaged by accident), modify or
distribute the program, except with the permission of the rights owner. Converting a
computer program from source code to object code ("compiling" the program) counts as
copying and requires permission. The same applies to converting a computer program from
object code to source code ("decompiling" the program). In practice, this is not important for
ordinary computer users, but only for programmers.
It should be noted that (as under general copyright law) no registration, copyright
notice, or other such formality is needed to establish copyright. Copyright protection is
automatic.
Copyright protects only the computer program itself and not the ideas behind the program.
That is to say, it is perfectly permissible to analyse a computer program written by someone
else, and write another that does the same thing.
2.3 Who owns the rights?
Generally speaking, the programmer who writes the program owns the rights. If there is
more than one programmer, the Directive provides for co-ownership.
There is one major exception: if the programmer creates the program in the course of
employment, the employer owns the economic rights unless there is a contrary agreement
between the programmer and the employer. The programmer will nonetheless retain the so-
called "moral rights". The economic rights are freely assignable.
An important case to consider is one where a programmer modifies a program written by
another programmer. Such modification requires the permission of the rights owner. When a
modification is made, it is not a simple issue to determine who owns the rights to the program as
modified. To be on the safe side, it is best to assume that both the author of the original program
(or his/her employer) and the author of the modification (or his/her employer) own separate
copyrights to the modified program so permission needs to be sought from both.
2.4 Exceptions to software copyright
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There are certain exceptions to software copyright. The Directive states that if you have
acquired a computer program lawfully (i.e. with the rights owner's permission), then:
• you are entitled to use it for its intended purpose
• you are allowed to correct errors in the program
• you are allowed to make a back-up copy of the program - that is to say, a spare copy, in
case the original is erased or damaged by accident
• you are entitled to study and test the program in order to discover how it works.
2.5 Patent protection of software
Contrary to U.S. patent law, under the European Patent Convention (EPC) and national
legislation of most European national patent regulations, computer programs are listed among
subject matter categories that are not regarded as patentable. Thus “software patents” cannot be
granted.
Despite the fact that computer programs “as such” are not patentable, if the subject matter
claimed specifies computers, computer networks or other conventional programmable apparatus, or
a program therefore, for carrying out at least some steps of a scheme or having one or more features
that are realised wholly or partly by means of computer program, it is to be examined as a
"computer-implemented invention".To eliminate differences in the protection of computer-implemented inventions offered by the
administrative practices and the case law of the EU Member States, the Directive on computer-
implemented inventions was proposed in early 2002. However, the proposal was rejected by the
European Parliament in mid-2005.
Open Source Software
The proprietary concept of software copyright protection is not commonly accepted. It is
argued that in this prevailing model software cannot be accessed and developed. The reaction to
this concern is the open source movement. Interestingly, this movement consciously uses the
instruments of copyright.
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Open source means that the source code is put into the public domain on the condition that
any improvements and modifications will also be put into the public domain. Thus the source
code becomes accessible to any programmer and may be modified and redistributed free of
charge. In order to ensure that developments will also be accessible, the typical copyright
instrument of a licence contract is employed.
The most popular licence (GNU – General Public Licencing) allows the licensee to access
the source code, to reproduce the program in an unchanged form, to make changes to the program,
to reproduce the program in its altered form and to redistribute (market, disseminate) copies of the
program, in its original and altered shape.
It is forbidden to collect licence fees for program use. Remuneration can be made for: 1) copy
production, 2) the price of the data-carrier on which the software was recorded. But the GPL also
imposes certain obligations. The key obligation is to make open source software available to other
persons under the same conditions under which the program was obtained (that is under GPL
conditions). This concerns redistribution of the program both with and without changes.
The next important obligation is to ensure that the person who receives the program will have
access to the source code. The person should also be provided with the GPL text so as to become
familiar with the rights and obligations. This obligation also includes inserting a clear note
concerning both exclusion from liability for program faults and lack of guarantee.There are some examples of very successful open source software such as the Linux operating
system or the Apache World Wide Web server.
Open Content
Similar to Open Source is the idea of so-called Open Content. It develops from the ideology
negating the proprietary character of cultural goods protected by copyright in the Information
Society. The main aim of this ideology is to give a more public character to a range of contentavailable online.
Similar to Open Source, different Open Content projects operate using non-exclusive
licences anchored in the copyright law system. The main difference between the projects is the
subject-matter of the licence protection. Open Content licences do not protect software but
protect other creative works (including articles, pictures, audio and video files, etc.) or
engineering work (i.e. open machine design). The most popular open content licence developer
is the international non-profit organisation called Creative Commons (CC). Licenses provided
by this organisation grant certain baseline rights, such as the right to distribute the copyrighted
work on file sharing networks. Other rights can be granted differently according to the type of
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licence chosen. For now, there are several versions of CC contracts available. The most popular
are:
• Attribution: Permit others to copy, distribute, display, and perform the work and
derivative works based upon it only if they give you credit.
• Non-commercial: Permit others to copy, distribute, display, and perform the work and
derivative works based upon it only for non-commercial purposes.
• No Derivative Works: Permit others to copy, distribute, display and perform only
verbatim copies of the work, not derivative works based upon it.
• Share Alike: Permit others to distribute derivative works only under a licence identical
to the licence that governs your work.
Although Creative Commons contracts are probably the most popular on the Internet, they
are not the only ones available. Other useful licences include: Design Science Licence, Free
Creations Licence, GNU Free Documentation Licence, Open Content Licence, Open Directory
Project Licence, Open Gaming Licence, and Open Publication Licence.
Technological Protection Measures
5.1 What are Technological Protection Measures (TPMs)
In European law, technological protection measures are defined as any technology, device
or component that, in the normal course of its operation, is designed to prevent or restrict acts,
with respect to works or other subject matter, that are not authorised by the right holder of any
copyright-related right or the sui generis database right. However, the law only protects a
qualified category of TPMs – the effective TPMs.
According to Directive 2001/29 EC (the so-called Directive on Copyright in Information
Society) TPMs are effective where the use of a protected work or other subject-matter iscontrolled by the right holders through application of an access control or protection process,
such as encryption, scrambling or other transformation of the work or other subject-matter or a
copy control mechanism that achieves the protection objective. ‘Effective’ should not be
misunderstood as meaning ‘impossible to defeat’. In other words, a TPM should, in the normal
course of operation, be able to thwart any unauthorised use so that some extra activity would
have to be undertaken for this purpose (circumvention). As a result, mere notice (e.g. ‘copying
is not allowed’) will not suffice and neither will technology that aims solely to identify
unauthorised actions (e.g. watermarks).
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5.2 What is forbidden?
There are two categories of prohibited actions. The first is circumvention of effective
TPMs. Circumvention may be defined as any action as a result of which it is possible to use the
copyrighted work despite the deployment of effective TPMs. Circumvention is contrary to the
law only when the perpetrator has knowledge or has at least reasonable grounds to know that he
or she is engaging in circumvention. Unintentional or accidental circumvention do not generally
fall into the scope of prohibited actions.
The second category is directed against the manufacture, import, distribution, sale, rental,
advertisement for sale or rental, or possession for commercial purposes of devices, products or
components or the provision of services the purpose of which is to circumvent effective
TPMs.
Effective TPMs may not be circumvented in order to take advantage of copyright
exceptions. The law may impose an obligation on the right holder to enable the use of works
covered by certain copyright exceptions but users have no right to hack and are not allowed to
circumvent the TPMs themselves.
Electronic commerce
Electronic signature
1.1 Why are electronic signatures useful?
Information technology can greatly simplify the conclusion of legal transactions.
Concluding a transaction in electronic form eliminates the need for the parties to be present in
the same place and can be done on the Internet. However, legal regulations require that certain
transactions be concluded in writing. Since the legal systems of most countries share the same
understanding of the requirement of a "written form", i.e. the document must be handwritten,
simple forms of electronic communications cannot take the place of the traditional signature.
The electronic signature has been designed to solve this problem.
1.2 What is an e-signature?
Directive 1999/93/EC defines the e-signature as “data in electronic form which are
attached to or logically associated with other electronic data and which serve as a method of
authentication.” The Directive introduces a qualified version of an e-signature: the so-called
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advanced electronic signature, which, under additional conditions, serves as an equivalent to
the traditional signature. It must meet the following requirements:
a. it must be uniquely linked to the signatory;
b. it must be capable of identifying the signatory;
c. it must be created using means that the signatory can maintain under his sole control;
and
d. it must be linked to the data to which it relates in such a manner that any subsequent
change to the data is detectable.
The advanced electronic signature has been designed to fulfil the same functions as the
traditional handwritten signature in the electronic environment. However, the resemblance is
limited to the functional level. Technically, the process is very different. Advanced e-signatures
use a simple asymmetric encryption system. Signing a document means encrypting it in the
following procedure: the user is provided with a public key. There is also a directory of public
keys, which is accessible to the general public.
In addition, the user is provided with a private key. Private keys are unique to each user and
known only to him/her. The process of signing consists of attaching the private key to the
message and encrypting it with the public key. After the message has been sent to the addressee,
it may be opened using the public key.
1.3 What are the legal effects of using electronic signatures?
The legal effects differ depending on which form of electronic signature has been used.
The simple electronic signature does not replace the handwritten signature and therefore cannot
be used for contracts that must be concluded in written form. Advanced electronic signatures,
which are based on a qualified certificate and which are created by a secure signature creation,
device satisfy the legal requirements of a signature in relation to data in electronic form in the
same manner as a handwritten signature satisfies those requirements in relation to paper-based
data.
Electronic payments
2.1 What are electronic payments?
Contracts may be concluded and executed by electronic means. Once a contract has been
concluded on the Internet, it is usually preferable for the consumer to make a payment byelectronic means (i.e. through a telecommunications or electronic network), since "traditional"
payments can reduce many of the benefits of electronic transactions. The most popular way of
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making electronic payments is by credit card. Another method that has been gaining in
popularity recently is so-called electronic money.
2.2 Characteristics of electronic payments
Electronic payments (where "payment" is understood as the transfer of monetary value) on
the Internet are executed by the purchaser, either a consumer or a business, without the
intervention of another natural person. The payment is always made from a distance, without the
physical presence of the parties to the transaction in the same place and naturally does not
include cash. In the case of credit card payments, the user has access to his/her bank account and
orders the transfer of a specific amount of money to the other party to the transaction.
E-money payments, on the other hand, are not linked to the bank account of the user, and
the value is stored on the very instrument itself. The most common instruments are bank cards
with a special chip on which the electronic value may be stored. There also exists e-money
based on software, for example the so-called electronic coins stored on the hard drive of a
computer.
2.3 Security of on-line payments
The formally non-binding Recommendation 97/489/EC of July 1997 has had a significantimpact on the legislation of the Members States. The Recommendation provides a set of rules
governing the obligations and liabilities of the parties (the issuer and the consumer) in case of
unauthorised use of an electronic payment instrument due to theft, loss or falsification of the
system.
The Recommendation specifies that the contract between the issuer and the cardholder
should contain the obligation not to disclose personal identification numbers (PIN) or other
codes to anyone except the legitimate holder. Should the cardholder violate this obligation, he
will be liable for any payments executed by unauthorised persons. The cardholder should also be
obliged to notify the issuer of the loss or theft of the card or error in the payment instrument.
Once the notification has been made, the issuer is under an obligation to take the necessary steps
to stop any further fraudulent use of the payment instrument (e.g. block the stolen credit card).
The issuer is not entitled to charge the cardholder for any payments made after the notification.
2.4 Effect of payment
Each payment involves a transfer of value. However, card payments achieve this in a
different way from payments in cash. Cash payments transfer the value immediately to the
payee, and once the money has been handed to the seller, the transaction is completed. Payments
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involving debit or credit cards function in a different way. The payee does not receive "real"
value but only a receivable for the issuer or other entity (e.g. a bank or an entity operating a
credit card system such as Visa or MasterCard). The "real" payment may therefore take place
some time after the initial transaction. Consequently, it cannot be said that by paying with a
credit card the consumer has already fulfilled his obligation to the seller or service provider. In
most countries, the law says the contractual obligation of the paying party is duly executed the
moment the payee receives the money transfer from the card issuer (or other entity).
The protection of personal data in e-commerce
3.1 What information can be considered personal data?
The definition of personal data is very broad. It can be any information relating to an
identified or identifiable natural person. A person can be identified by any reference that directly
or indirectly reveals his identity. Thus, personal data may be considered any information
regarding the data subject, such as the name, e-mail address, opinion, a sound or an image, or
circumstances relating to this person, whether they relate to his private or professional or public
life. For instance, an IP address or cookies may be considered personal data if they can be linked
to an identified person.
3.2 The processing of personal data
The processing of personal data in e-commerce must comply with the rules established in
Directive 95/46/EC, which states that the concept of processing concerns any operation
performed on personal data, whether by automatic means or not, including collection, recording,
organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or combination, blocking,
erasure or destruction.
The person liable for the processing is called the "controller".
He is responsible for the choices determining the purpose for which the processing of personal
data is used (to conclude a transaction or to deliver goods to clients) and the means used for
processing.
3.3 The principles of the protection
To be legal, any processing (also in the electronic environment) of personal data must
respect some main principles, including: personal data should be obtained by lawful and fair
means and, where appropriate, with the consent of the data subject; the controller must keep the
personal data accurate and where necessary, keep them up to date; data should not be kept for a
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Liability of Internet Service Providers
1 . Why has the regulation of ISPs’ liability been introduced?
Not all of the information transmitted through the Internet complies with national legal
systems. The dissemination of some information is unlawful, such as images related to child
pornography or works protected by copyright (for instance, the on-line publication of music or
video works without authorisation).
The legal responsibility is borne by the person who has made the on-line publication.
Nonetheless, there is the question of the intermediaries on the communication networks. Those
intermediary players transmit information, host information and provide access to a
communication network (ISPs – Internet Service Providers).
Therefore, EU authorities have enacted Directive 2000/31 on e-commerce. The Directive is
not limited to copyright infringement but is established in a horizontal manner so it applies to all
kinds of illegal material (including copyright, unlawful commercial practices, breach of privacy,
criminal liability, etc.). Needless to say, ISPs are generally liable to civil charges established
under specific law. The following provisions are only exceptions, so-called “islands of non-
liability”
2 . Who is an ISP?
The term ISP is applied to the “information society service providers” providing any
service normally made for remuneration, at a distance, by electronic means and at the individual
request of a recipient of services. Moreover, the service provider must be an “intermediary” and,
therefore, the information must be provided by the recipients of services and must be transmitted
or stored at their request.
3 . Activities covered and conditions for the liability limitation
This Directive creates a system that prevents online intermediaries under some conditions
from being held liable for specific activities.
1) Mere conduct
The mere conduct (conduit) activity is defined as “a service provided that consists of the
transmission in a communication network of information provided by a recipient of the service,
or the provision of access to a communication network.” It refers, for instance, to functions of an Internet access provider or network operators.
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An intermediary who is engaging in mere conduct activity will not be liable for the
damages caused by the information transmitted, on the condition that it does not:
a) initiate the transmission;
b) select the receiver of the transmission;
c) select or modify the information contained in the transmission.
The provider cannot play an active role in the transmission of information. Its role has to be
limited to the technical process of operating and giving access to a communication network.
2) Caching
The caching activity consists of “the automatic, intermediate and temporary storage of that
information, performed for the sole purpose of making more efficient the information's onward
transmission to other recipients of the service upon their request.”
Internet access providers and the owners of search engines often carry out such activities.
Any intermediary provider that carries out a caching activity will not be held liable as long
as he does not modify the information, complies with conditions on access to the information,
complies with rules regarding the updating of the information, and acts expeditiously to remove
or to disable access to the information in several cases.
In other words, the intermediary provider must stay neutral concerning the content of theinformation.
3) Hosting activity
The hosting activity is defined as an information society service that consists of the
“storage of information provided by a recipient of the service and at his request.” For instance,
it concerns the activities of the Internet access providers who provide space on a server in order
to store websites of their clients and therefore make them accessible on the Internet.
To enjoy the liability limitation, the provider of hosting activities must:
a) must not have actual knowledge of illegal activity or information and,
b) upon obtaining such knowledge or awareness, act expeditiously to remove or to disable
access to the information.
Therefore, the intermediary providing hosting will be held liable if it is proven that he had
knowledge of the existence of unlawful information (for instance by third party notification
denouncing the existence of such information) but did not remove it or disable access to it.
Domain Names
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1. Definition and structure of domain name system
From a technical point of view, a domain name is a user-friendly, alphanumeric equivalent
of an IP address that identifies each computer connected to the Internet. For an Internet user, it is
a tool to locate a particular Web site. In the legal sense, a domain name is a sign having definite
economic value determined by its distinctiveness and the actual exclusiveness of its use.
A domain name is a combination of top (first), second and sometimes third-level domains,
separated by dots. The "top-level domain name" ("TLD") is the part of a domain name
beginning with the last dot (e.g. in "ipr-helpdesk.org", ".org" is the TLD and "ipr-helpdesk" is
the second-level domain name). There are two main types of top-level domain names:
•
country code top-level domains ("ccTLDs"), which use two-letter codes to representcountries, for example, .es for Spain, .eu for the European Union.
• generic top-level domains ("gTLDs") come under the authority of the Internet
Corporation for Assignment Names and Numbers (ICANN). At present, there are fourteen
gTLDs: .com, .edu, .gov, .int, .mil, .net, .org, .aero, .biz, .coop, .name, .info, .museum,
and .pro.
2. Registration rules
Domain names are registered on a "first-come, first-served" basis under which only one
particular domain name level can be registered at a particular level of domain names.
Registration is possible directly through the Registry that manages a specific top-level domain
name, or indirectly through an appointed registrar.
Once the registration fee is paid, the domain name should be operational within a short
time. Registration terms, including cost and the duration of the registration, may vary
significantly from one domain name registration system to another.
3. The "right" to a domain name
The registration of a domain name creates only contractual rights and obligations deriving
from the contract with a registry (registrar) and does not provide a domain name holder with any
absolute right to a domain name "as such". A domain name can, however, acquire protection
through registration at a patent office as a trade mark or its use in the course of trade as a
distinctive sign (business identifier).
4. Domain name transfer
The registries of top-level domains generally establish procedures governing transfers;
however, for some top-level domains, the rules do not authorise or limit transfer. A domain
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name may be transferred to a third party by: 1) submission by the holder of a written and signed
document to the registry authorising another entity to apply for a modification of the entry in the
register regarding a specific domain name or confirming a transfer of rights and obligations
from a registration agreement, 2) other procedures of "changing" the domain name holder.
Transfer of a domain name may be made in relation to the "sale" of a domain name, may be
required by a court, or can be the result of arbitration.
5. Registration of a domain name as a trade mark
A domain name as a word sign capable of being represented graphically may be registered
as trade mark provided that it can distinguish the goods of one undertaking from those of other
undertakings. The right to the trade mark cannot be granted to domain names, which are devoid
of sufficient distinctive character. Domain names have to be registered as trade marks in classes
of goods (services) actually offered in connection with the domain name.
6. Conflicts between domain names and other distinctive signs
In practice, conflicts may arise between a domain name holder and the holder of a trade
mark or other protected business identifier that corresponds to the domain name. A third party
right can be infringed through the registration and/or use of a conflicting domain name under conditions determined by national trade mark law and/or unfair competition law or dispute
resolution procedures.
7. "Cybersquatting"
"Cybersquatting" is the registration in bad faith of a domain name identical or similar to
somebody's trade mark in order to "sell" it to the trade mark holder or to prevent him from
registering his trade mark as a domain name. In order to effectively combat abusive domain
name registration, special regulations have been introduced, for example the US
Anticybersquatting Consumer Protection Act of 1999 or ICANN's Uniform Dispute Resolution
Policy (UDRP).
8. Alternative domain name dispute resolution policies (ADR)
ADR policies are designed to allow complaints of "cybersquatting" or other conflicts over
domain names to be arbitrated by an appointed arbitration service provider without the need to
go to national courts. The most popular one is the Uniform Domain Name Dispute Resolution
Policy (UDRP), which applies to an abusive registration of all generic top-level domains
except .edu, .gov, .int and .mil, as well as some country code top-level domains (e.g. .tv).
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Disputes concerning the .eu domain name are resolved under special Alternative Dispute
Resolution policy. ADR for .eu is provided by the Czech Arbitration Court (appointed by
EURid – an organisation managing .eu) in the 20 official languages of the EU.
Unsolicited Commercial Communications (Spam)
1 . What is spam?
The commonly accepted idea is that spam is not wanted by the recipient and is sent on a
massive scale. The following could be considered spam:
• unwanted commercial correspondence (spam proper). This indicates running a business
enterprise directly or indirectly aimed at buying services and products;
• unwanted non-commercial emails
Spam and unsolicited commercial communication
The word "spam" does not appear in legal texts. Instead the phrase "unsolicited
commercial communications or email" (UCE) is used and, what is more important, not every e-
mail commonly called spam will correspond to this legal term. The primary difference is that
UCE denotes commercial electronic messages, meaning advertisements.
As a general rule, it could be said that legal regulations apply only to commercial emails
(however, some legal systems use the term "direct marketing" which could be interpreted in a
broader sense).
2 . How unsolicited communication is regulated
The regulation of spam is usually based on one of two systems for restricting the practice,
called the opt-in and opt-out systems.
The Opt-Out System:
Under the opt-out system, the recipient can reject any further correspondence of the type.
The first unwanted message will always be accepted and will remain so until the recipient
switches to the other option. In the case of the opt-out system, special instructions (e.g. special
links) should be included, allowing the recipient not to permit such correspondence in the
future. It is possible to create registers in which a user’s general objection is recorded, called
"do-not-e-mail" lists, Robinson’s lists, or simply opt-out registries.
The Opt-In System:
Under the opt-in regime, the delivery of electronic mail is dependent on prior acceptance by the addressees. In this case, each message, even the first one, is banned if sent without the
recipient’s prior permission. Consequently, if the recipient’s decision is not known, there is no
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permission to send anything. Permission should be granted unambiguously, and the sender may
obtain it by any method.
3. Is spam allowed?
EU Law
According to Directive2002/58/EC on e-privacy, the use of electronic mail for the
purposes of direct marketing is allowed only with respect to subscribers who have given their
prior consent. This means the sender is obliged to obtain the consent of the user before sending.
However, if a user obtains an e-mail address from clients in the context of the sale of
products or services, the data can be used again for the purpose of direct marketing, as long as
the product or service sold is similar (but the recipient retains the right to object). In other
words, this exception only works in terms of the opt-out system.
In any case, concealing or disguising the identity of the sender is not allowed. Such acts
and also the lack of a reply-to address, to which a demand for the communication to cease can
be directed, are defined as unlawful. This protection is granted to natural persons. However,
Member States are allowed to introduce specific means of protection for legal persons.
The system introduced in the European Union by the e-privacy Directive is called "soft
opt-in" because it does not concern messages addressed to natural persons and allows the mailto be sent to persons who have previously been in commercial contact. Currently, the opt-in
system is in effect in all Member States. A fee usually has to be paid as a penalty for the illegal
distribution of unsolicited correspondence, with the exact amount to be paid set differently but
usually approximating several thousand euros.
United States regulation
Since most emails classified as spam come from the U.S. it is worthwhile to outline the
relevant U.S. legal regulations. The relevant CAN-SPAM Act of 2003 is a regulation based on
the opt-out system and forbids:
• sending multiple commercial electronic mail messages,
• deceiving or misleading recipients as to the origin of such messages,
• falsifying header information.
Behaviour contrary to the CAN-SPAM Act is punishable by a fine or up to a year in
prison, and in some cases, up to five years in prison. More restrictive measures are taken to deal
with e-mails containing pornographic material.
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For more information visit www.ipr-helpdesk.org
Section: Documents/Information Society