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Abstract: The recent demise of the proposed Directive on Computer-Implemented Inventions has overshadowed its complex background and the interplay of conflicting interests that it brought into play. Copyright (which already protects all software) and patent law (which protects much software in the United States but relatively little elsewhere) both have their strengths and weaknesses as legal rights. Little evidence has, however, been adduced as to the incentive effect of either of these legal regimes. The decision to withdraw the proposed Directive does not mean that the issues addressed in it and the interests affected by it have been resolved. Real debate has merely been deferred and it is important to recognize them clearly before the debate is resumed.
software patents, computer implemented inventions, European directive
Abstract: The use of non-proprietary software licenses - such as the Free Software (FS) and Open Source Software (OSS) license models - is definitely on the increase, showing that the open development models are viable and sometime even commercially successful systems. Amongst these models, one of the most interesting licenses is that offered by so-called copyleft licenses, which are licenses that allow software to be transferred with the insurance that the source code will remain open, with the caveat that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. However, software development is not the only area in which this licensing model could apply. The viral nature of copyleft licenses has generated a considerable amount of interest in circles that transcend software development. The idea of sharing materials is not new, and has been made more evident by the chaotic and sometimes anarchic nature of the internet. However, shared materials tend to suffer from the possibility of third parties that use the freely acquired information to turn them into proprietary works. That is why many different organisations are turning to the copyleft model to protect works that are being freely shared online. One such project is the OpenContent License (OPL), a collaborative effort that sets a similar license to the GPL, ensuring that shared works will continue to remain free to subsequent users. A more ambitious project is the Creative Commons, which offers a wide range of licenses applicable to all sorts of creative material. In the area of biotechnology, there have been some suggestions that the copyleft model could be used to protect the public results of the human genome race being placed in the public domain by several researchers, something that has been suggested by a leading member of the Human Genome Consortium, although the idea has never been implemented. This paper will explore the application of copyleft licenses to other areas of research and development, and will try to explore if these can be successfully adapted to various different areas where creators want to share their works to the public but want to make sure that there will not be any further commercialisation of their creations.
Open source, open science, open biotechnology, patents, creative commons, databases
Abstract: This paper asks the question of whether copyleft free software licences constitute valid legal contracts, in particular with regards to the fact that it may create obligations through a distribution chain. There is increasing interest about the non-proprietary licence model expressed in popular documents such as the General Public Licence (GPL), but not enough work has been done in asking perhaps the most important question of all: are these contracts enforceable? Is there really a viral transmission of obligations? To do this the GPL licence will be analysed to try to determine whether or not the terms included are contractually valid.
Copyleft, licences, copyright, GPL, validity, unfair terms, competition
Abstract: One of the most serious challenges facing international legal institutions in the present era of globalisation is the adoption of adequate written laws in the form of treaties, conventions, and codes that address the issues faced by the international community. There have been advances in many areas, mostly in Public International Law. However, when it comes to achieving agreement in economic and commercial issues, the record of the International community is not as positive. Many areas of the law require international conventions or treaties to provide a united front to common problems faced by most countries. Such is the case in areas of competition law, international trade, electronic commerce and intellectual property. One of the areas in desperate need of international regulation is that of creating codes of conduct for the same multinational corporations that have triggered the globalisation process. The present essay will be centred on the concept of technology transfer and on how technology is owned and transferred. Then, the efforts by the United Nations to achieve an agreement on codes of conduct for the transfer of technology will be discussed. Finally, some options for the future of Technology Transfer will be considered.
Technology transfer, developing countries
Abstract: The digital divide has been at the centre of a large amount of academic analysis in recent years, particularly in the area of access to the internet in developing countries. This article deals with a lesser explored aspect of the divide, and it is the problem of access to online content once some of the hardware and network access issues are solved.
digital divide, internet, access, developing countries, ICT
Abstract: This paper looks at the field of Information Technology Law field and its reliance on buzzwords, jargon and acronyms that tend to alienate serious discussion about some of the deeper socio-legal issues involved. It is often easy to become confused by the terminology and the technology, which has led to some non-issues receiving too much interest (the Y2K bug for example), and some valuable and worthy topics being almost ignored. Some writers and researchers may be tempted to neglect the field because of lack of understanding of the technology, which may eventually lead to the end of the IT Law as a serious field of research. This paper will attempt to reignite the jurisprudential debate about the future of IT Law research, teaching and practice. This will be done by looking at the possible trends emerging from the literature.
Jurisprudence, cyberlaw, technology, Internet, IT law
Abstract: This paper serves as an introduction to the issue of technological fences to protect copyright material on the internet. The paper deals mostly with pre-Napster and pre-P2P technology, so it may have more interest to those who are looking at the subject from a historical perspective.
fences, DRM, copyright, internet, DMCA
Abstract: This paper offers a first-look legal analysis of the draft version 3 of the GNU General Public License, and will also look at the debate that it has generated in the Free and Open Source community. The paper will answer the following vital questions: Is the GPL v3 different in any fundamental way from GPL v2? What are the main differences? What will be the impact of the new GPL to the problem of software patents? Is there an incompatibility problem with previous versions of the licence? How does it compare with other existing licences?
GNU, General Public Licence, GPL, Open Source, Information Technology
copyleft, GPL, license, Linux, kernel
Abstract: This report considers the Dominican Republic - Central America Free Trade Agreement (DR-CAFTA) and its impact on Information Technology (IT) based businesses. The report summarises the factual background to, and contents of, the agreement, and then reviews those parts of the agreement (or omissions from the agreement) that are relevant to the IT field. IT is of interest both because of its potential importance as a contributor to business (and social) growth, but also because of the lesser international roles accorded to it in comparison with its sister, intellectual property (IP). The IT-related provisions of DR-CAFTA reflect international IT (and IP) controversies. But DR-CAFTA also raises questions of the place of agreements between states, their legal validity and their impact upon international relationships and global development. The primary objective of this project was to explore the extent to which DR-CAFTA impacts upon IT based businesses; the implications of this; to assess how much these issues, and associated economic and legal questions, had been addressed; and to lay the foundations for further legal and interdisciplinary work. We have not, at this stage, explored all the issues covered and not covered in DR-CAFTA, and arising in respect of other agreements of this nature. Rather, we have sought to introduce the issues, provide preliminary comment, and provide a list of resources for further study. We hope that this will be helpful to those coming to the project from a variety of backgrounds, including different legal specialities. We have concluded that there are important issues to be developed regarding all free trade agreements and IT. These issues are highlighted in the following sections. In terms of immediate further work, we propose investigating the present and future impact of UDRP provisions in DR-CAFTA countries, and liability of Internet Service Providers (ISPs). We believe that these can raise important questions combining IT, e-commerce, IP, trade, human rights and competition issues; both for DR-CAFTA countries and those contemplating their own agreements. We also consider that there is a need for international and interdisciplinary collaboration for this work to be done, including through empirical research with ISPs and domain name owners. We propose holding an international meeting of experts. As a preliminary step, we are also publishing this report in Spanish. Progress has been shared on the project blog, throughout, and we have been delighted with the interest expressed from a variety of corners. We anticipate this report being transformed into a wiki and for further contributions to be developed via web-based. We hope to maintain the project's momentum through the wiki, and details of this will be posted on the blog. This project was one of the final activities of Phase 1 of the AHRC Research Centre for Studies in Intellectual Property and Technology Law at the University of Edinburgh (AHRC Research Centre). We are grateful to the AHRC for their support, and look forward to pursuing parts of this work in Phase 2.
FTA, TRIPS-plus, CAFTA, electronic commerce
Abstract: Networks are everywhere. The staggering complexity and seemingly chaotic nature of everyday life is actually a collection of different networks interacting with us from the moment that we wake up to the time we go to sleep. We are constantly surrounded by the social network, the financial network, the transport network, the telecommunications network, and even the network within our own bodies. The understanding of how these systems operate and interact with one another has been the realm of physicists, economists, biologists and mathematicians. Until recently, the study of networks lacked empirical application because it was extremely difficult to gather reliable data about large and complex systems. But in recent years, the Internet has given researchers the opportunity to study and test the mathematical descriptions of the vast complex systems. The growth rate and structure of Cyberspace allows researchers to map and test several previously unproven ideas about how links and hubs within the network interact with one another. With the Web, we now have means to test the organisational structures of networks, their architecture, their growth, and even allow some limited predictions about their behaviour, strengths and vulnerabilities. This paper explores the possible implication of these theories to copyright law. The study of the architecture of networks has opened new avenues of research about the way in which scale-free topologies present in the Web may provide new strategies for copyright enforcement. Similarly, a better understanding of how websites link to one another could provide better tools to allocate liability and to distribute royalties in a more efficient manner. The paper asks the following questions. How should we regulate networks if we can find certain deterministic characteristics to them? Is enforcement of infringing behaviour easier to regulate because we understand the technology better?
networks, power laws, scale-free, P2P
Abstract: This paper will concentrate on presenting a legal analysis of two of the main challenges to open source software: SCO's litigation and software patents. The paper discusses the validity of such challenges, their possible impact to the future of open source software, and the possible legal defences used against them.
Open source, FUD, software patents, IBM
Abstract: The Internet is a new medium that allows every person who is connected to it to become a publisher and to be able to share ideas and information. This is a phenomenon that I call the "New Sharing Ethic". This new sharing ethic is the subject of the present paper, in which the implications of the free flow of information in Cyberspace will be discussed.
Cyberspace, sharing, ethic, hackers, OSS, FS
Abstract: This paper is mostly an update on an article that first appeared in this journal in June 2000 regarding the relatively recent legal figure of Habeas Data, which has been implemented in some countries in Latin America. The need to update the original article arose from the fact that there have been many new developments regarding the implementation of this legal tool in Latin America, and because of some other interesting developments in the European Union that required that some of the original conclusions be revisited and amended. This paper was first presented in the 16th Annual Conference of the British and Irish Legal Education and Technology Association (BILETA) in April 2001, my thanks to the attendants for their input, which helped in revising the present work. The paper has many sections that are similar to the original, with the intention of making the update a stand-alone document.
Habeas Data, Privacy, Data Protection, Freedom of Information, Latin-America, Brazil, Argentina, Peru, Costa Rica, United Kingdom, Europe
Abstract: The DVD video format has become one of the most important developments in the home entertainment market since the popularisation of the magnetic video recording. The film industry delivered this format with a built in security system which was supposed to avoid illegal copying of the discs, much as what is taking place with the music CD and the almost indiscriminate copying of music into MP3 format over the Internet. This was achieved by means of encryption technology. This essay deals with the cracking of DVD encryption and its further diffusion as a computer programme named DeCSS, which has been made available over the Internet in various formats, including t-shirts and a numerical representation of the code. There are three court cases based on the online posting of this programme, two in the United States and one in Norway. The article starts by describing the technology involved, as it is felt by the author that some of these technical issues are of importance to the legal implications of the case and should be understood properly. The article then deals with the developments in all of the three cases up to this date. The essay then finishes with a look at the legal issues involved, including hyper-linking, trade secrets, freedom of speech and the translation of DeCSS into numerical format.
DVD, DeCSS, DMCA, Europe, Copyright Directive, encryption
Abstract: Development, poverty and the means to assist countries to break away from the causes of poverty have become some of the most important subjects in the international trade arena. Of these causes, the technological gap between developed and developing nations presents a compelling call for some sort of action in order to alleviate the resource inequality. There are many examples that could illustrate that developing countries are being affected in some ways by the technological gap. Of these examples, one of the most important is the apparent struggle between large multinational pharmaceutical companies and developing nations with regards to access to medicines. The present article presents some examples in which developing countries are affected by the access to medicines debate.
access, medicines, patents, developing countries
Abstract: Electronic money has yet to become as familiar to consumers as cash, cheques and credit and debit cards, but may yet have the potential to be the greatest revolution in payment systems since the development of money itself. Financial services practices and new technology are coming together to change the way in which we conduct our everyday life. The potentially universal acceptance of electronic or "e-money" for commercial transactions may have wide-ranging effects in our lives - not least, for consumers: for electronic money could serve as the tool which finally eases the pervasive consumer apprehension regarding online transactions. This chapter deals with the recently passed European Directive regulating Electronic Money Institutions (the "E-Money Directive"), which has granted legal recognition to electronic money, and has also provided an authorising foundation to financial institutions eager to deploy this payment method. Economists, regulators, government institutions and businesses are now gearing themselves up for the possibilities of electronic money in everyday life.
electronic commerce, electronic money
Abstract: This article deals with some of the intellectual property protection of biotechnology in developing countries. The article does not pretend to present an exhaustive study about the subject, but to provide an introduction to the problems faced by developing nations. There are several circumstances in which this is of immense relevance for the international community. On the one hand, there is the case of genetic material originating from the developing world being catalogued, and in many cases patented, by firms from developed countries. On the other hand, we have the science of the future, the cracking of the human genome, the advent of genetic modification of organisms, and the patenting of applications of the knowledge acquired from the genetic code. Developing countries are then caught between these two, with intellectual property as the mechanism that locks away this technological knowledge. With the patenting of traditional medicines and plants, they see their past being taken away. With the patenting of the application of genes and genetically modified organisms, they see their future sheltered away as well.
biotechnology, developing countries
Abstract: Networks are everywhere. The staggering complexity and seemingly chaotic nature of everyday life is actually a collection of different networks interacting with us from the moment that we wake up to the time we go to sleep. We are constantly surrounded by the social network, the financial network, the transport network, the telecommunications network, and even the network within our own bodies. The understanding of how these systems operate and interact with one another has been the realm of physicists, economists, biologists and mathematicians. Until recently, the study of networks lacked empirical application because it was extremely difficult to gather reliable data about large and complex systems.
But in recent years, the Internet has given researchers the opportunity to study and test the mathematical descriptions of the vast complex systems. The growth rate and structure of Cyberspace allows researchers to map and test several previously unproven ideas about how links and hubs within the network interact with one another. With the Web, we now have means to test the organisational structures of networks, their architecture, their growth, and even allow some limited predictions about their behaviour, strengths and vulnerabilities.
This paper explores the possible implication of these theories to copyright law. The study of the architecture of networks has opened new avenues of research about the way in which scale-free topologies present in the Web may provide new strategies for copyright enforcement. Similarly, a better understanding of how websites link to one another could provide better tools to allocate liability and to distribute royalties in a more efficient manner. The paper asks the following questions. How should we regulate networks if we can find certain deterministic characteristics to them? Is enforcement of infringing behaviour easier to regulate because we understand the technology better?
(Note: the downloadable article is a draft version of the published work).
Abstract: The paper looks at the legal nature of so-called open licenses - agreements designed to provide permissions to users and publishers through "some rights reserved" clauses. The article starts with the assertion that copyright licenses are contracts in Civil Law jurisdictions, and looks at the opposing views and practice in Common Law jurisdictions. The article particularly looks at recent case law in the United States which deals specifically with the issue, and concludes that there is now a clear jurisdictional split between both traditions on whether these licenses are contracts.
open source, open content, contracts, licenses
Abstract: The present paper deals with policy changes to copyright law in light of the explosion in user-generated content, and its growing relevance to people. There are two narratives at work in modern debates about copyright. Firstly, commercial content owners (the traditional copyright industries) tend to over-emphasise the importance to the economy of maintaining the status quo, particularly by stressing the figure of copyright as a source of livelihood for struggling artists. Secondly, there is the one presented by user-generated content advocates, which assumes that it will bring about a more equal and democratic internet. The starting point will be to study usage figures for both commercial and non-commercial content, followed by an analysis of its possible implications for the much-needed overhaul in copyright policy.
user-generated content, self-organisation, long tail, copyright
Abstract: This paper addresses some of the legal implications of the popular Consumer-to-Consumer (C2C) electronic commerce model in the UK; in particular the implications of the successful and popular auctions site eBay.
Electronic commerce, consumer, C2C, eBay, intermediary liability, internet auctions, contract, fraud, unfair terms, online dispute resolution
Abstract: No abstract available.
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