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Abstract:
Net neutrality is a complex issue that has generated intense levels of political discussion in the United States, but which has yet to attract significant attention from regulators in the UK.

Nevertheless, the question of whether network operators should be restricted or prevented from blocking network traffic or prioritising certain traffic or traffic from particular sources is a significant one for a wide range of stakeholders in the digital networked economy. Network operators contend that the build costs for the next generation of networks are so high that they must be permitted to monetise their control over this infrastructure as efficiently as possible. Meanwhile, an eclectic mix of interests including content and service providers, free speech and special interest groups and entertainers argue that net neutrality regulation is necessary to guarantee that the internet's core values and social utility are preserved.

This article offers an introduction to the net neutrality from a UK perspective. The authors explain the technical, commercial, political and legal considerations that underpin the issue and suggest that whilst network neutrality regulation in its strongest incarnation is not practical or desirable, a level of regulatory action designed to enhance the choices of end-users is the best way forward.

Network Neutrality, access tiering, UK, Ofcom

Abstract:
A brief article looking at the legal and regulatory issues that arise in the net neutrality debate. Takes a Q&A format, providing the reader with a quick and readily digestible over view of the issues.

Net neutrality, internet, access, regulation

Abstract:
Given the recent release of the Gowers Review in the UK, the time is ripe for considering the fundamentals of our intellectual property regime. This article focuses on some of the most common activities (e.g. linking, spidering and caching) routinely undertaken by search engines and data aggregators and assesses the potential copyright liability that these intermediaries are exposed to under UK law.

The authors argue that, despite the UK government's recent decision not to extend the limitations of liability that already apply to Internet intermediaries, the legal risks these intermediaries face are too great given their critical role in the effective functioning of the Internet, and that the UK should take steps to introduce a new fair dealing exemption for informational use.

Search Engines, Data Aggregators, Copyright, Fair Use, Fair Dealing, Informational Use

Abstract:
The 'net neutrality debate' has become shorthand in some US circles but has come to mean different things to different people - and means nothing at all to many. This article explains what the debate is all about and why it matters.

Information technology, net neutrality, access tiering, internet, regulation

Abstract:
Legal personality defines who 'counts' for the purposes of the law. The impact of artificial intelligence technology provides a unique opportunity to look afresh at this oft-misunderstood legal concept. Artificial intellects, or 'bots', will become an increasingly ubiquitous part of society. These bots will exhibit 'weak AI': seeming to possess intelligence, even though they are not actually conscious. The autonomy and capabilities of these bots will make it increasingly difficult to attribute logically their actions to recognised legal persons. Consequently, legal issues will arise - eg is there an agreement or certainty in a bot-conducted transaction? Applying conventional legal doctrine and/or utilising current legislative initiatives designed to facilitate e-commerce to address these issues proves unsatisfactory. Does legal personality assist? This paper considers the appropriate methodology for assessing legal personality, which turns out to be conditions-based: 'under what conditions does the law treat an entity as a separate nexus of legal rights and obligations?' It proffers and explains a unitary theory of legal personality: legal persons are 'the subjects of legal rights and obligations' or, simply, 'units of legal logic'. Legal personality itself is the relevant legal similarity between the disparate entities recognised as legal persons. An entity's metaphysical nature is irrelevant to legal personality determinations. Legal status is distinct from legal personality, defining the specific legal rights and obligations enjoyed by particular subsets of legal persons. The paper uses corporate personality as a detailed example. It concludes that (a) there is no theoretical barrier to according legal personality to bots; (b) whether or not one should do so is determined by extra-legal (moral, philosophical, historical, economic, political, social, etc) considerations prior to the attribution of legal personality; and (c) that it is too early to conclude that legal personality should be accorded to artificial intellects, although there are already significant pragmatic arguments in favour of doing so.

Jurisprudence, legal personality, corporate personality, artificial intelligence, technology

Abstract:
A German court rules that web publishers who choose not to use widely available technical protection measures, such as the robot exclusion protocol (robot.txt), grant an implied licence to search engines to crawl and cache for the purpose of indexing content on the internet.

Copyright, internet, search engines, infringement, implied licence

Abstract:
Recent case law has established that post-sale confusion is relevant to determining whether or not there has been registered trade mark infringement under English law. This raises questions as to what that relevance is in practice and whether or not the common law of passing off should develop accordingly to take post-sale confusion into account. In this article, the authors review the case law on the relevance of post-sale confusion to actions for trade mark infringement and passing off. They conclude that English law does regard post-sale confusion as relevant to trade mark infringement, provided that there is also sufficient similarity on a mark for sign basis at the point of sale. They argue that the tort of passing off should develop in the same way. This is of practical importance because brands can be harmed even where there is no confusion at the point of sale. The law's development to recognise provides important weapons for brand owners, particularly in the context of look-alike products. Published in (2007)(2) Journal of Intellectual Property Law & Practice 315-323. Full text available - http://jiplp.oxfordjournals.org.

Intellectual property, passing off, confusion, trade marks, post-sale confusion, unfair competition

Abstract:
IP rights are dependent on the public policy considerations which provide the justification for their granting. However, when regulation impacts on the exercise of IP rights, there is often a clash of public policy considerations. This article considers what happens when that clash occurs, concluding that, in all cases, IP rights will be trumped by the public policy considerations which underlie the regulation, often with no basis for claiming compensation notwithstanding the obvious and very real economic impact on the rights owner. Unfortunately, the markets do not always take this risk into account when valuing premium brand companies. This conclusion may have serious implications for premium brand companies, especially in heavily regulated fields like alcohol, food, pharmaceuticals and tobacco. Published in (2006) 1(10) Journal of Intellectual Property Law & Practice 645. Full text available - (2006) 1(10) Journal of Intellectual Property Law & Practice 645.

Intellectual property, brand value, trade marks, regulation

Abstract:
Under English law, the scope of the tort of passing off has traditionally been limited to confusion at the point of sale. Developments in market practice and trade mark law may argue in favour of extending that scope to cover both pre- and post-sale confusion. However, such an extension raises commonly voiced concerns about the introduction of a general tort of unfair competition into English law. This article considers the specific issue of pre-sale confusion and concludes that there is both the need and the scope to bring it within reach of passing off. To do so would not amount to the introduction of a general tort of unfair competition, but would be entirely consistent with the rationale which has always been the foundation for the tort. Published in (2006) 1(10) Journal of Intellectual Property Law & Practice 645.

Intellectual property, passing off, confusion, trade marks, initial interest confusion, unfair competition