CONTINUING LEGAL EDUCATION committed to lifelong learning LAW SOCIETY OF SOUTH AFRICA CLE INTERACTIVE SATELLITE SEMINAR THE NEW E-WORLD OF BUSINESS IN SOUTH AFRICA 6 November, 2002 Ryk Meiring IT & eCommerce Law Dept Spoor & Fisher Attorneys

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 2 Topics for Discussion: Importance of IP in Practice ECATA Take-Down Procedure.za Domain Name Space Protection of Domain Names ITLF

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 3 Importance of IP in Practice: Core Asset Development Strategy IP Management Policy Rights Management

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 4 Nature of Intellectual Property Rights: Monopoly Right Commercial Exploitation Disclosure to Public Public Domain

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 5 Nature of Internet: Digital Content Perfect Reproduction Cost Of Distribution

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 6 Result: Interests Friction Constant Litigation Restrictive Legislation Lessig’s Views

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 7 Protection of IPR in Practice: Contract Legislation (Intellectual Property) Technology

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 8 Regulation by Contract: Result Desired Balancing of Interests Appropriate to Context

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 9 Regulation by Legislation: Patent Designs Copyright Trademark (Domain Names?)

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 10 Regulation by Technology: Access Regulation Distribution Regulation

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 11 Case Study: Take-Down Notices ito ECATA s77: Chapter XI: SP Liability Limited ISPA Code of Conduct:

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 12 s77 Dual Objective: Allow pendente lite relief to IPR Owners suffering Infringement Protect ISP’s from Damages Claims iro Wrongful Take-down

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 13 ECATA s77: 1. Notification must be in writing, addressed by the complainant to service provider, must include— (a) complainant name and address; (b) complainant’s written or electronic signature;

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 14 ECATA s77 (cont.): (c) identification of right infringed; (d) identification of material/ activity subject to unlawful activity; (e) remedial action to be taken;

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 15 ECATA s77 (cont.): (f) telephonic & electronic contact details of complainant; (g) statement that complainant is acting in good faith; and (h) statement by complainant that information in notification is true and correct.

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 16 ECATA s77 (cont.): 2. Intentional material mis- representation in notification = liable for damages for wrongful take-down. 3. No service provider liable for wrongful take-down in response to a notification.

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 17 s77 Achieves: Temporary Withdrawal of Infringing Material/Action from Public Domain

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 18 s77 In Practice: Action implemented by ISP Infringer can Re-Locate

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 19.za Domain Name Space Regulation of Namespace Contentious Legislation Nature of Concern

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 20 Chapter 10 Contents: 1.Establishment of Authority 2.Governance of Staffing 3.Functions of Authority 4.Finances and Reporting 5.Regulations 6.ADR

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 21 Case Study: Protection of Domain Names: gTLD Eg: ; ccTLD Eg: ;

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 22 Protection Mechanisms: ADR: Eg: ICANN UDRP Anti-CyberSquatting Legislation Eg: USA AntiCyberSquatting Consumer Protection Act

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 23 Protection Mechanisms: SA Position ADR: ECATA s69 Legislation?

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 24 SA ECATA s69 ADR: 1. The Minister to make regulations for ADR iro domain name space. 2. Due regard to international precedent. 3. Regulations— (a) types of disputes;

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 25 SA ECATA s69 ADR: 3. Regulations (cont.)— (b) Authority’s role in ADR; (c) adjudicators appointment; (d) procedure and rules; (e) unlawful actions; (f) prevent unlawful actions;

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher Regulations (cont.)— (g) manner, costs of and time; (h) adjudications implementation; (i) limitation of liability; and (j) enforcement and publication.

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 27.za Domain Name Authority : Govt. invites consultation PPC on Communications listening Minister appoints 5-member panel

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 28 ITLF: Informal group of Lawyers Technology Interest/Practice Regular meetings in Gauteng List

CONTINUING LEGAL EDUCATION committed to lifelong learning 6 November 2002 © 2002 Spoor & Fisher 29 A society grows great when old men plant trees whose shade they know they shall never sit in. -Greek Proverb

CONTINUING LEGAL EDUCATION committed to lifelong learning Ryk Meiring IT Law Dept. Spoor & Fisher, Pretoria Tel: Cell: Fax: