Q&A

Last week on the 8th May, a blogger opinionised on the last post and asked an interesting question- which posed a great challenge...below is my opinion....i welcome further contributions.

The Challenge!

Do you think it would be better to have one all inclusive law or several laws covering say e-commerce, intellectual property etc

Such issues as with intellectual property should be dealt with separately, following examples of other such as the Singapore and South Africa. In my opinion, having one all inclusive law dealing with all the matters pertaining to electronic commerce would result to having an "ambiguous and complex" legal framework which will in turn be hard to adopt especially in an environment such as our own where by judges and lawyers need extensive training in this new area of law. Therefore, by having separate laws dealing with, intellectual property, consumer protection, electronic transactions, privacy, data protection etc is the best option due to the complex nature of the issues arising within e-commerce.

Below is a good example of how we should move forward.....

Singapore for example:

Electronic Transactions Act (Cap. 88) Singapore covers matters such as:

• Electronic contracts;
• Electronic records and signatures;
• Secure electronic records and signatures;
• Effect of digital signatures and duties relating to such signatures;
• Duties of Certification Authorities and their subscribers;
• Regulation of Certification Authorities;
• Government use of electronic records and signatures; and Liability of network service providers
  

In drafting the Electronic Transactions Act, the following guiding principles were adopted:

1. The need to conform to international standards and international models in order to be integrated with the global e-commerce framework;
2. The need to avoid over regulation;
3. The need to be flexible and technologically neutral to adapt quickly to a fluid global environment; and
4. The need for transparency and predictability in our laws.
   

· Broadly, the Act seeks to do the following:

1. Enact a Commercial Code to support e-commerce transactions;
2. Provide for a Public Key Infrastructure;
3. Enable Electronic Applications and Licences for the Public Sector; and
4. Clarify Network Service Providers' liability for third party content.

In order to strike a balance between the protection of rights for owners of creative works and increased public access to intellectual property, Tanzania has to ensure that its intellectual property and copyright laws are harmonised with the underlying principles in global laws on intellectual property rights (IPRs). For example, IPRs are accorded the standards of protection as prescribed by international agreements such as the World Trade Organisation's Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, and the Berne and Paris Conventions.

The Internet has extended the reach of providers of information and other forms of content, but it has also changed radically the ease to reproduce, distribute and publish such information and content. This has posed new challenges for intellectual property protection. The laws providing for IPR should thus be reinforced to provide a strong and conducive IPR regime to encourage the growth of a knowledge-based economy and promote electronic commerce and creative innovations.

The amendments should aim to:

1. Improve copyright protection and enforcement measures for copyright owners in the digital environment, thus promoting the use of the Internet for business.
   For example, the amendments-
• extended copyright protection to multimedia and interactive productions which qualify as intellectual creations;
• clarified that copyright owners enjoy protection against the making of electronic and transient copies of their work; and
• provided the conditions allowing an additional avenue whereby copyright owners may require Internet Service Providers to "take down" materials which may be guilty of copyright infringement, even before the owners initiate enforcement proceedings against the actual infringes.
  
2. Promote legal certainty in the usage of the Internet by clarifying the rights and obligations of copyright owners, intermediaries such as network service providers, and users such as educational institutions.
   For example, allowing end users to browse materials made available on the Internet such amendments should also spell out when intermediaries such as Internet Service Providers are exempted from liabilities.

Importantly, a clarity between the connection of IP and e-commerce to beginners -

There are several reasons why IP is important to E-Commerce and e-commerce is important to IP. E-Commerce, more than other business systems, often involves selling products and services that are based on IP and its licensing. Music, pictures, photos, software, designs, training modules, systems, etc. can all be traded through E-Commerce, in which case, IP is the main component of value in the transaction. IP is important because the things of value that are traded on the Internet must be protected, using technological security systems and IP laws, or else they can be stolen or pirated and whole businesses can be destroyed.

Also, IP is involved in making E-Commerce work. The systems that allow the Internet to function - software, networks, designs, chips, routers and switches, the user interface, and so on - are forms of IP and often protected by IP rights. Trademarks are an essential part of E-Commerce business, as branding, customer recognition and good will, essential elements of Web-based business, are protected by trademarks and unfair competition law.

E-Commerce businesses and Internet related businesses are based on product or patent licensing. This is because so many different technologies are required to create a product that companies often outsource the development of some component of products, or share technologies through licensing arrangements. If every company had to develop and produce all technological aspects of every product independently, development of high technology products would be impossible. The economics of E-Commerce depends on companies working together to share, through licensing, the opportunities and risks of business. Many of these companies are SMEs.

Finally, E-Commerce based businesses usually hold a great deal of their value in IP; so the valuation of your E-Commerce business will be affected by whether you have protected your IP. Many E-Commerce companies, like other technology companies, have patent portfolios and trademarks that enhance the value of their business.

Available at: http://www.wipo.int/sme/en/e_commerce/ip_ecommerce.htm