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Business Online - the legal issues
Published: 30-04-2002
Author(s): Clive Elliott, Fraser Goldsmith, Anne Hall, Alasdair McLeod, Ross Johnston, Casey Plunket, Chris Linton, Dr Paul Roth, Sarah-Jane Weir, Michael Wigley
Pages: 140
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NZ $55.00
Author(s): Clive Elliott, Fraser Goldsmith, Anne Hall, Alasdair McLeod, Ross Johnston, Casey Plunket, Chris Linton, Dr Paul Roth, Sarah-Jane Weir, Michael Wigley
Published: 30 April, 2002
Pages: 140
Intellectual property (IP) is a series of often-interlocking products of the human intellect, to which the law attaches various rights and which tend to be proprietary in nature. IP rights attach, in the main, to intangible things, rather than the physical object in which they are contained or reside; hence their importance in protecting identities and content on the internet.
When transmitting data, content or information through a communications network having multiple unsecured access points, the holder of that data, content or information runs the risk of interception, loss or divulgement. When information is communicated over the internet, it does so through a so-called packet switching system. These packets may take a large number of paths to geographically distributed points, before reaching their destination. The information may thus pass through various jurisdictions en route. This raises potentially serious challenges to notions of national sovereignty and exclusive jurisdiction.
The current environment is multi-faceted and increasingly platform-neutral. Information can be disseminated and collected almost instantaneously through the web, e-mail, news groups, bulletin boards and chat rooms, as well as through localised networks such as extranets, intranets and other groups. This makes control and monitoring of activities difficult.
Another feature of the internet is that once information or content is transmitted or misused, effective detection and enforcement can be a real problem. That is because the internet is essentially ephemeral and transient. This allows information to be moved offshore or set up in “mirror sites” in lenient jurisdictions. It also allows information to be manipulated and altered so as to render its source uncertain. This transient and uncertain environment often results in a greater likelihood of theft or misuse of IP rights.
The conduct of electronic commerce in the B2B (business to business) environment is now routine. Unlike general business to consumer (B2C) and peer to peer (P2P) transactions, they tend to be closed and handled in a controlled environment. For this reason they are relatively safe. However, the B2C and P2P environments are open, fluid and ripe for misunderstanding. It is in this public or quasi-open environment where many of the legal challenges will arise in the future.
At a practical level, there is a much greater tendency for IP owners to recognise, monitor and administer their rights more carefully and vigorously than in the past. There is also an increased recognition of the market value of IP/content and how it can be exploited.
Clients wishing to protect their distinctive identities and indicia and original content on the internet will need good informed legal advice. The purpose of this paper is to look at some of the main areas that may apply. It will be apparent that this is very much an overview of what can at times be a confusing area of the law.
A small note of caution: overseas authorities have to be treated with some care. While they are often the only direct authority on an issue, the statutory foundation may be markedly different to that applying in New Zealand. That is particularly likely with US decisions in this field, many of which are now based on recent, far-reaching and differing legislation, one example being the Digital Millennium Copyright Act.
However, the law tends to grow by a process of logical and reasoned analogy, and the overseas cases I refer to are, in my view, worthy of mention.
What are the principal rights that might apply?