E-commerce Law

E-commerce Law

  1. Digital Economy Act 2010, and sections 9-10 of that Act.

                   

  1. Introduction:

 

Digital Economy Act of 2010 was prepared by the Department of Culture, Media and Sports along with the business, skill and innovation department for the ease of the readers to understand and got consent from the royal in charge in 8 April 2010.

According to the recent economic survey it has been seen that communication is serving as the one of the major contributors in Economic growth of UK accounting for 8% GDP growth. It has took such position due to the technical development in Industrial sectors as more and more developed technologies are seemed to get poured into it.

It was started in 2008 autumn when the government decided to investigate this sector to know about its stake and position in UK economy and formulated and drafted Digital Britain which got its first publication in 2009 June. So this Digital Economy Act is a simplified version of that which aims to reach common mass in an understandable way.

 

  1. Sections 9-10 of  the Digital Economy Act:

 

 If we will go through the structures of the Digital Economy Act, it is not possible to study in detail in a brief way. So let’s have a overview of the topic. It has 48 sections and eleven topics and two schedules which completes the act. Every topic and every section has some specific directions that have to be carried out as per the law. As it has been asked to throw light on section 9-10 let’s go through it first.

Section 9 and 10 both comes under the topic 2 which deals with the online breaching of the copyright law. These sections deals with those directives which ask the internet providers to look after the breaching of copyright matters as responsibility. All rules and regulations including the departmental procedures and protocols that have to be followed in this section are administered by the Office of communication department.

 

Section 9 deals with the compulsion or requirement to limit the internet access and the assessment of it and the measures that has to be taken to achieve it. Section 9 in accordance with the 124G of the 2003 act gives the power to the state secretary to asks the office of the communication to ask the respective ISP’s to take the responsibility of taking actions against those subscribers breaching the law or the state secretary can directly ask the official of communications to take technical measures against those.

The official of communication should do research and consultation on the effectiveness of various technical measures and submit it to the state secretary. But it is not possible to report which measure would be best effective as during the enactment of the law the measures were drawn keeping in mind the then present scenario but as day by day the technology to copyright breaching is increasing new measures has to be come up.

But OFCOM officials have the right to disclose those information which they think would help the state secretary not all as per the Freedom to Information act of 2002. The new sections 124A and 124B has measures to act against the infringement of copyright at initial stage if these fails then there is 124H which confers power to state secretary to take further stringent steps.

After the technical responsibilities are taken it is the responsibility of the OFCOM officials to come up with a provisional act supporting these acts. But these provisions will be included in the section 124I which was inserted by the section 11.

So section 9 mostly deals with the power that has been vested with the state secretary as well as the OFCOM officials, but it has no mention of anything if any wrong goes with the officials then what measures should be taken.

There should be proper communication between the OFCOM officials and the state secretary for the successful improvement of this act as well as its implement.

 

Section 10 mainly deals with the measures that has to be taken to keep the use of internet in control. Under this section the newly added section of 124H of the 2003 act gives the power to state secretary to ask the internet service provider’s to curb the accessing power of internet by the subscribers who were meeting certain requirements.

But this power can be executed only after the initial measures has been on the field for 12 months and the OFCOM official has advised to take further technical measures against these internet service providers. The measures can be applied to a subscriber who has linked to many CIRs so that it could be listed in copyright infringement list.

The orders which are proposed under the new section of 124H should be scrutinised properly and can only take effect after passing from both the houses of the parliament. During its laying in the house it should be accompanied with relevant documents to support the orders with valid and logical reasons and during this 60 days period of laying the state secretary can up with recommendations and amendments in the orders too.

During this period the state secretary should submit the documents that support the recommendations that have been made in these 60 days from the very first day of laying.

 

  1. Conclusion:

 

So these two sections mainly concentrate on the limit of access of internet and how to curb the copyright menace in online segment. It is a welcome decision to have a such an act that tries to regulate the online bodies for the interest of various writers and professionals who suffers huge loss due to the copyright infringement in online.

But definitely the government has to review these acts in time to time as technology is advancing in fast pace so there is no doubt that the process to escape to these acts would have hit the market. So time to time audit and market research will give the officials the real scenario and definitely this act can be amended with more powers and more technical obligation and can become stronger.

The criteria for limiting access should be made public so that everybody can be aware of it.

 

  1. High Court case between Paramount Pictures and others against BT in the context of online file-sharing and copyright infringement by Newzbin2. critically discuss the issues ?

 

  1. Introduction:

After the enacting of the Copyright infringement act in 2010 in Digital Economy Act this was the significant milestone in the history of UK as for  the first time an internet service provider has been asked to curb one of its websites to shut down as it violated the copyright law as it allowed heavy file sharing and copying of certain film studio and production units of US.

This hearing has been passed so as to protect the revenue loss incurred by the six film production units- Fox, 20th century, Universal. Paramount films, Warner bros Columbia pictures and Disney.

 

The judge Mr Justice Arnold told that the case which was filed by these six companies against BT was valid since BT very well knows about this copy right infringement and also which subscriber did this crime going against the law but still remained silent without taking action.

In the follow up the judge mentioned that BT know very well that the subscriber Newsbin 2 was misusing the data and other products such as films of those six film studios and was sharing freely by infringing copyright law. He also added in his judgement as it has been proved that the BT has certain subscribers who use the service of newsbin 2 and BT was very well aware of it, but it failed to take any action. So it was ordered to shut down the website of Newsbin 2.

  1. Critically analyse

 

But if we will analyse this case then this case even though is historic in its own way but still has certain draw backs, as shutting down a website doesn’t solves the problems there.

There are numerous methods of changing the IP address and hosting in other providers will evade any type of shut down. Secondly there needs to be a stricter rule and law against these as new methods are coming up for infringement.

It has to also see the consumer demand and then go for law making striking right balance otherwise it will end up in losing the returns for the economic growth. Even the British common masses react instantly many youngsters reacted saying that this is loss of freedom and right.

But it is not exactly so, getting anything for which we are not entitled is a crime. May be it is a software or a film or a small file of someone. It is as crime as stealing a DVD from shop.

So better intellectual property rights should come up and there should be specific clauses protecting the interest of film makers and studios against their properties and this should be signed by the BT like isp so that in future there will not such mess up. The UK movie industry also have decided to go against the BT for copyright infringement.

 

  1. Conclusion:

It can be clearly seen that being giants in Film making industry these guys made their way clear but everyday many small and big enterprises are loosing hundreds of revenues due to the violation of copyright so just shutting down the problem will not help, rather those who do this also has to realise that how it affects the country’s economy then only it can be curb with success.

 

 

 

  1. E-Commerce Directive (2000/31/EC), Articles 12/ 13/ 14, which deal with the liability of ISPs in respect of the mere conduiting/ caching/ hosting of web content, and how these can be compared with the provisions of the DEA 2010.

 

  1. Introduction:

 

This directive is designed or brought into act with the aim of removal of any hindrance in the path of online internal market provisions across the border and to secure the citizens business rights and also the business. It was brought into effectiveness in 8th June 2000.

 

  1. Articles 12/ 13/ 14

 

The articles 12, 13, and 14 are aimed to limit the legal responsibilities of the intermediary service providers about conduiting/caching and hosting of the web content.

The limitations that are mentioned in this directive is established for certain activities of internet providers which does not have any limitation such as the technical process involved in the transmission of information and also storage of information that was provided by those recipients who uses this service.

This directive covers limitations of civil administrative and criminal responsibilities for all types of illegal works carried out by any third party sources on net.

The various illegal works are piracy of trademark, issue of copyright; any advertise that misleads, defamation case, any type of commercial practice which is unfair, and at last child pornography.

So there should be some legal limitations on the legal responsibilities of intermediaries for the free flow of information in net and also for to frame a legal framework under which e-commerce as well as internet develops.

But this directive doesn’t give any limitation on the court or administrative authority to infringe on any service provider if there is a case of infringement or illegal information providing by these systems.

 

  1. Digital Economy Act of 2010

 

Let’s have a look at the Digital Economy Act of 2010 and see that does this directive provides any provision for such activities or not. The topic 2 in this act has provisions for infringement of copyright on net.

It has sections 3 to 16 which impose certain obligations on the internet service providers against the copyright. Sections 17 and 18 also has some similarity with the above act which gives right to the court or any administrative authority to block the content of the website or total shutdown of the website if it is found to violate the copyright law.

But in this act of 2010 the scope is little wider than the E-commerce regarding infringement, here infringement is not only related to games and films but here there are certain criteria’s set by the OFCOM officials and the subscribers under the ISP’s have to meet them.

If any of the subscriber is reported to have his ip address is being used for copyright piracy then technical obligations or actions will imposed on it first, but if this does not work to lower the copyright violation then further technical actions could be taken but the first actions that had been taken earlier should complete 12 month of tenure.

 

  1. Conclusion:

 

Temporary suspension of any broadband connections cannot be denied if a necessity arises. So if we will compare both the directives then the Digital Economy act even though have some sort of similarity with E- Commerce act seems to be more stronger than the former having many alternative options to stop the illegal copyright actions in various segments and wider scope of action.

 

  1. USA “safe harbour” provisions in the USA’s Digital Millennium Copyright Act 1998 in comparison with recent case law .

 

  1. Introduction:

 

Digital Millennium Copyright Act of 1998 are the act which puts limitations on copy right and piracy in online. It has two treaties under it adopted from the World intellectual property organization of 1996. It mostly criminalize those actions which are intended to produce any instrument, service or technology which was mainly intended to avoid the actions that was to be taken on copyright violators. The online infringement copyright liability limitation act mainly shield the providers of internet services as well their intermediary service providers against doing any unauthorized copy and also this act help them from getting sued by any other nations copyright law and regulations. This act is a part of the digital millennium copyright act which was passed in 1998 and is otherwise known as the safe harbour provision after the addition of section 512 into the title 17 of the US code. This provision has three technical measures for the online service providers if they are found to have infringed content or material with them.

  1. Case Law

 

First is direct financial benefit. The OSP providers are advised not to get involve in direct financial benefit by putting infringe materials on their website. But this clause is quite confusive, as in a case between  A&M Records, Inc. v. Napster, Inc the court gave the verdict that Napster is getting direct financial benefit as it is only when the customer will use infringe material that is on the website the napster is going to be benefitted. But in another case Ellison v. Robertson, it was judged that AOL is not getting any financial benefit from the infringe material that is being saved in its server by the user as new customer’s are not added for this.

 

Second is the Knowledge of the infringe material. To come under the protection of safe harbour provision the online service providers must not have knowledge of the infringe materials they have or they own if any. But there are two ways to know it that is if they get any notice from the authority having the copyright over a material, or having a red flag over a material.

 

Third is getting any notice from the authority whose material is copyrighted or infringed. In this section there are many regulations regarding on what basis a notification can be sent. The authority must first give a written letter on this regard to OSP on the infringed material having their signature. They should provide the list of copyrighted works that are infringed and on which site . There should be proper and enough information regarding the availability of those materials on the site so that it will be easier to find out for the OSP’s. There should be a written undertaking from the agent sending the notification saying that all the information provided in the notifications is correct.

 

  1. Conclusion:

So after getting properly compiled notice according to various other clauses the OSP can tell the notified about the necessary actions that have been taken on this regard. In

Perfect 10, Inc. v. CCBill LLC  it has been asked by the court to give clear notifications in one communication so that there will be no burden of works on the OSP.

 

 

 

 

References

 

1)  17 U.S.C. § (512(c)(3)(A)(i-vi))

 

2)  Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004).

 

3)  A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

 

4) www.legislation.gov.uk/ukpga/2010/24/contents

 

5) www.kondrin.com/en/docs/20CenFox_v_BT_judgement_28.07.2011.doc

 

6) http://www.scribd.com/doc/61157373/28-07-11-Bt-Newzbin-Ruling

 

7) ec.europa.eu/internal_market/e-commerce/…/liability/final_report_en.pdf

 

8) www.wipo.int/…/en/doc/liability_of_internet_intermediaries_06092011.pdf.

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