e-Commerce in the WTO, copyright, trademarks, software, computer programs, patents, domain names, domain names dispute resolution, Bali 2013, Internet, digital technologies, role of international organizations and governments, institutions

1. Intellectual property and electronic commerce Susan Isiko Štrba
Customised Training Programme for Officials from Taiwan
Bilateral and Multilateral Trade Agreements Negotiation and Dispute Settlement
Geneva
16 September 2013 – 13 December 2013
The Graduate Institute Executive Education Program

2. Outline
•Introduction
•E-commerce in the WTO
•The challenge
•Novel question/issue areas

3. E-commerce in the WTO - overview
•2nd Min Conf. in 1998, adoption of Declaration on Global e- commerce.
–Urged General Council to establish a comprehensive work program to examine all issues arising from global e-commerce
•4th MC. in 2001, agree to continue work on e-commerce as well to the moratorium on customs duties
•8th MC in 2011 to 18 October 2013, discussions on a number of issues including: (i) Classification of the content of certain electronic transactions, (ii) development-related issues; (iii) fiscal implications of e-commerce; (iv) relationship (and possible situation effects) between e-commerce and traditional forms of commerce; (v) imposition of customs duties on electronic transactions; (vi) competition; Jurisdiction and application law and other legal issues

4. E-commerce in the WTO (2)
•The draft text Decision of the 2013 MC mandated the Work Programme to continue to “examine the trade-related aspects of, inter alia,
– enhancing internet connectivity and access to information and telecommunications technologies and public internet sites,
–the growth of mobile telephony,
–electronically delivered software,
–cloud computing,
–the protection of confidential data, privacy and consumer protection.”
•Since 8th MC, no activity in the Council for TRIPS
•Focus/Pace of technology?

5. The challenge
•Internet is a global multipurpose medium,
–E-commerce not limited by borders or time Zones, but
•IP laws are territorial
•IP laws designed for the physical world
•Consensus required to facilitate international trade
•As commercialization of the Internet continues to gain momentum, need to develop a predictable legal framework for the protection of IP

6. Challenges (2)
•Shorter life cycles of many goods and services associated with the Internet and digital technologies call for the timely acquisition and enforcement of related IPRs
•Internet a system to promote sales (of tangible and intangible products), but also to deliver intangible products eg music, software
•Several issues emerge

7. Selected issues
•How do domain names affect trademarks and thus trade
•Should methods of doing business on the Internet be patentable
•Should Internet content, including online music, be subjected to copyright
•Which entity should be responsible for enforcement of IP on the Internet
•What role should be played by international organizations and governments

8. Domain names, trademarks and trade
•What are domain names?
–Web addresses, “.coms”, “ULR addresses” or “net names”
•Why domain name in trade
–Need a domain name to set up business on the Internet
•Role of trademark
–Candidate for “cybersquatting”
•Uniform Domain Name Dispute Resolution Policy (UDRP)
–Is a domain names dispute settlement
–Administered by ICANN (Internet Corporation for Assigned Names and Numbers)

9. Domain names cont’d
–Under the WIPO Arbitration and Mediation Centre
–Resolve cybersquatting and other disputes related to trademark domain names
–private
•Role of governments or international organizations?
–Who should manage the dissemination and registration of domain names in this new global environment
–Who should manage the disputes

10. Business methods
•Defn: processes related to e-commerce, Internet and Data processing involving:
–Financial services
–Electronic sales
–Advertising methods
–Other business or management practices
–(as long as the pass the test for patentability)
•Example of Amazon “one-Click” patent case

11. Examples of business methods patents
•Electronic delivery systems
•“electronic shopping carts”
•Methods of securing payment using credit cards and debit cards over the Internet
•System for managing personal privacy in a computer network

12. Patents, copyright and e-commerce
•Patents and e-commerce
–Most material on internet at technology intensive (computer and network technologies, both hard and software)
•Copyright and e-commerce

13. Internet/electronic content
•The role of technological measures in protecting the rights of owners
–WIPO Internet Treaties
•Scope of rights (of IP owners and users of IP goods) and how existing laws apply
–Google Book Search example
•Validity of contracts, eg in software
•enforcement,
–Questions of jurisdiction and applicable law (activity)

14. Internet/electronic content (2)
•Entity responsible for enforcement
–Private companies or governments (eg ISP) – implications for trade
–Role of government in governance of e-commerce and internet (interests of users/creators)

15. Summing up
•Technology neutrality?
–country club rule making, eg TPPA
–Limits to technology neutrality