TRIPS: IPR Regime for the Digital Medium

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1 TRIPS: IPR Regime for the Digital Medium Dr. P. D. Kaushik, Fellow Rajiv Gandhi Foundation Digital Revolution is no less a revolution than the Industrial Revolution. The progress of information and telecommunications technology (ICT) has made it possible to convert all phenomena into digitized information, which can be shared and exchanged by the people who need it instantaneously throughout the world by means of computer networks. The prevailing world order, underpinned by mass production and mass is now being transformed in which value systems are based on the accumulation and distribution of information. In these changing times, many types of competition are emerging and nations who are able to ride this new tide will be the leaders in the new age. Computer networks like the Internet and digital storage media are now been widely used as the preferred means of electronic communication. These changes enable easy transmission of information to the general public without any special technology or commercial funding. To promote the development of electronic commerce, the framework for designing the protection of intellectual property is of paramount importance while taking into consideration specific characteristics of ICT. The issues concerning intellectual property rights (IPRs) in the context of promoting of electronic commerce include the complicated relations among the various actors involved. In addition, in order to solve these issues, many technological obstacles may have to be overcome. The Trade Related Aspects of Intellectual Property Rights (TRIPs) is the sole legally enforceable multilateral agreement on the protection of intellectual property rights. The TRIPs agreement aims at harmonising the legal and enforcement framework across trading nations under the aegis of the World Trade Organisation (WTO). The protection of IPR is the foremost challenge for the developing region for all forms of intellectual property, including the digital medium. Widespread deliberations and debates at all fora indicate the pronounced impact of Uruguay Round agreement in the context of IPR. There are essentially seven separate subjects forming part of intellectual property under the multilateral framework of TRIPs, namely patents, copyright, trademark, industrial design, geographical indications, layout design of integrated circuits and undisclosed information. Each subject provides a property right, which is the right to prosecute for infringement. It is this entitlement to sue that provides its owner with commercial power and entitles the owner to sell or license that right. With the 1994 establishment of the WTO and the signing of the TRIPs, the IPR was formally recognised as a trade issue. In the past, a series of international agreements constituted the core components on protection of intellectual property. These agreements were administered since 1967 by the WIPO, a United Nations agency. The TRIPs Agreement establishes universally acknowledged minimum standards for protection of IPR (an international "rule of law") that must be effectively translated into local action. This new millennium of IPR protection is scheduled to be in place on January 1, 2000 when all WTO members must have TRIPs-conforming IPR regimes in place. TRIPs further establishes a means for international dispute settlement that permits plaintiff nations to obtain compensatory damages if local IP law or practice creates nontariff barriers to trade. The TRIPs provisions create no new substantive IPR law. But it rely on, the World Intellectual Property Organisation (WIPO), which administered Paris Convention (on Industrial Property), the Berne Convention (on the Protection of Literary and Artistic Works), the Rome Convention (for the Protection of Performers, Phonogram Producers, and Broadcasting

2 Organizations), and the Washington Treaty (on Intellectual Property in Respect of Integrated Circuits) 1. The TRIPs provisions finally "put teeth into" the multilateral global IPR regime. Global IPR Regime: Some Fundamentals Countries have realised the essential need to protect IPRs for retaining their technological advantage in the light of growing international competition. The TRIPs agreement binds its signatory to protect all forms of identified intellectual property within a specified time frame. But so far, only few have developed an adequate legal framework to protect intellectual property rights, specific statutes on geographical indications, integrated circuits and undisclosed information are mostly missing in the existing frameworks. Most countries rely on their existing provisions on copyright, trademark, industrial designs and patents to address the missing IPRs. In fact, each provision in TRIPs is drafted with a specific objective, both in terms of importance and speedier relief. The interplay of different statutes for protecting a separate right lacks objectivity and cause judicial confusion, resulting in exposing the weakness of statutory framework and dilution of purpose. These shortcomings add to the ineffectiveness of the enforcement mechanisms within national jurisdictions 2. With the introduction of e-commerce, IPR content has even become more complex and protection more difficult. With developments in information technology (IT), it has become easy to copy or alter digital information. It is also pertinent that TRIPs agreement draws out heavily from the work of WIPO. However, the WIPO conventions on IPRs were never legally enforced measures. Majority of OECD countries doubted the effectiveness of WIPO s enforcement framework. Inclusion of intellectual property rights within the framework of General Agreement on Tariffs & Trade (GATT) negotiations empowered the economic powers to take strict retaliatory measures to ensure adherence to higher degree of protection and compliance at all levels. Thus, the focus of Uruguay Round negotiations focussed on linking IPR with trade. As a result of which, the TRIPs agreement was included within the GATT framework. TRIPs: Instruments, Subject matter, Fields of Application, WIPO Conventions Types of IPR Subject Matter Field of Application Term of Protection Major International (Years) Agreements Patents New non-obvious, Manufacture 20 Paris Convention, industrially applicable Patent inventions Cooperation Treaty, Budapest Treaty Utility Models Functional designs Manufacture 10 Paris Convention Industrial Designs Trademarks Ornamental designs Signs or symbols to distinguish the goods and services of one enterprise from those of others Clothing, motor cars, electronics All industries 7 with renewal for 10 Hague Agreement, Paris Convention, Locarno Agreement Paris Convention, Madrid Agreement (international 1 For instance, inclusion of WIPO Performances and Phonograms Treaty within the TRIPs Agreement, will extend copyright protection to the Internet and digital technology as well as to prohibit hacking of technical protections that have been applied to protected works. 2 Kaushik (1998)

3 indefinite period registration), Nice Agreement, Madrid Protocol (not yet in force), Trademark Law Treaty (not yet in force) Geographical Indications Copyrights and related rights Breeder s Rights Integrated Circuits Identification of the place of origin of goods indicative of the quality or other characteristics associated with the area Original works of authorship and related contributions from performers, producers of sound recordings, performer s rights, broadcasting organisations New, stable, homogenous, distinctive varieties Original layout desins Trade Secret and sensitive Secrets business information Source: Carlos Braga (1995) Agricultural and food industry, notably for wine and spirits Printing, entertainment (audio, video, motion picture, software, broadcasting Agriculture and food industry Microelectronics industry - Lisbon Agreement, Madrid Agreement (false indications) Life of author+50 cinema-50 Photo-25 Perfo-50 Broad-20 Sui generis Berne Convention, Rome Convention, Geneva Convention, Brussels Convention, Universal Copyright Convention Union for the Protection of New Varieties of Plants (UPOV) 10 Washington Treaty (not yet in force) All industry - - Note: With exception of UPOV, all treaties and conventions identified above are administered by WIPO. The Washington Treaty, not yet in force, has also been negotiated under the WIPO auspices. The Rome Convention is administered jointly by WIPO, ILO and UNESCO. The Universal Copyright Convention is administered by UNESCO. The IPR protection in itself is a complex issue to handle because IPR has overlapping functional responsibility of two international organisation, namely WTO and WIPO, and separate jurisdictional authority of individual national governments. The WIPO does the groundwork and develop a harmonised framework on protection of intellectual property with the approval of its member states. With an observer status at the WTO on TRIPs, the WIPO makes recommendations to the TRIPS Council on any IPR related issues. Subsequently, the TRIPs Council prepares the draft note for the WTO General Council for introduction within the TRIPs provisions. After due negotiations, the WTO membership accepts the recommendations, the suggestions are incorporated within the TRIPs provisions. Once the IPR issues are incorporated in the TRIPs agreement, it becomes a binding obligation on the entire membership. The individual members subsequently incorporate the requirements within their jurisdictional territory to comply with the TRIPS obligations. In fact it is not a definite flow chart for framing global IPR regime. In the past, governments adopted IPR protection framework from the WIPO Conventions, though it was never a mandatory obligation on the signatories. Individual governments adopted the recommendations based on their judgement and economic ramifications. It resulted in wide variations in the IPR regimes

4 across the globe. Indubitably, the major defaulters of WIPO s IPR Conventions were developing and least developed countries. The overlapping functional responsibility of two multilateral organisation was debated at lengths during Punta del Este, the Uruguay Round negotiations, where developing region strongly protested on the functional responsibility of WTO. But the debate was over with inclusion of TRIPS in the multilateral trading regime as Annex- IC to the Final Act, which resulted in establishing standards for a global IPR regime. Th us, it will be sometime before IPR protection in the digital medium becomes a part of global IPR protection regime under the TRIPS agreement. But one cannot avoid the discussion on WIPO, WTO and some of the individual experience of national governments in terms of building case laws to draw out a blueprint for IPR protection in cyberspace. Global Scene of E-commerce & IPR protection E-commerce and information technology (IT) industries that make e-commerce possible are growing and changing at breathtaking speed, fundamentally altering the way people produce, consume, communicate, and play. In fact, there is tremendous opportunity for all types of products and services, in a way these products and services are distributed more quickly, more efficiently and more cost-effectively on a worldwide basis. Forrester Research estimates that e- commerce for goods and services will reach $109.3 billion in 1999 and $1.33 trillion worldwide by Indicators from a variety of private sources also show rapid growth, not only in the current form of e-commerce, but in the infrastructure too that will support future e-commerce development. For instance, from 1998 to 1999, the number of web users worldwide increased by 55 percent, the number of Internet hosts rose by 46 percent, the number of web servers increased by 128 percent, and the number of new web address registrations rose by 137 percent 4. By any measure, the ability of consumers and businesses to reach the Internet and to engage in e-commerce is increasing rapidly. But so is the vulnerability of creations on the Internet in the absence of any IPR protective mechanism. Estimated losses due to global copyright piracy, 1994 Region Piracy Losses (millions US $) World Percentage West Europe United States and Canada Developing Asia Pacific Japan, Hong Kong, Singapore Russia and CIS, East Europe South and Latin America Middle East, Mediterranean Africa Total 14, % Source: International Intellectual Property Alliance (1996). The above table portrays problem of domination of piracy and weakness of the intellectual property protection regime within the digital medium. Determining what is infringement and what is fair use can be very tricky, especially since the intellectual property regimes of countries define those terms differently. When an idea, a product, or a process is similar to, improves upon, or incorporates another patented or copyrighted product without the permission or remuneration of the rights holder, infringement can be hard to prove. The conditions under which such use even constitutes infringement are often contestable, and can lead to fierce domestic and international disputes. 3 See 4 See

5 It is often misconstrued IPR violation in cyberspace is in the form of copyright infringement. Though copyright infringement is rampant and easy in the digital medium, but so are infringements against patents, trademarks, geographical indications, trade secrets, industrial designs and layout design of integrated circuits. In fact, partly some IP-rights have received international recognition due to rapid technological convergence of IT on telecom. For instance, the US extends patents and copyright protection to softwares. Domain names allocation of wellknown marks has brought the protection of trademarks in limelight. Likewise, use of names indicating geographical location is a source of confusion with an intention of conning consumers 5. List of infringements of such types could be endless in the absence of clear-cut framework. According to trends in wealth creation, the most dynamic economic sectors are related to intensive knowledge activities, such as intellectual property. These trends are important not only with regard to intellectual property protection as a strategic macro and micro-economic tool, but also with respect to the nature and type of investment that will need to be enhanced in order to underpin national development and make intellectual property relevant to the people. Given its increasing global relevance, the intellectual property system cannot continue to evolve as an issue limited in scope and focused mainly on maintaining and developing IPRs protection. As intellectual property becomes central to economic growth and wealth creation, the challenge will be developing the international intellectual property system in a way that is helpful to social and economic development. The Digital Medium Intellectual property is complementary to technology. It is an area of law that evolves with the development of technology than social and political needs. The emerging ICT, convergence of information technology on telecommunication with the increasing use of computers and communication technology has given rise to Digital Economy. The new economy is changing the way the products are created, the nature of products themselves and how they are distributed and transacted. Certain distinctive qualities of the digital medium have given rise to challenging legal issues over the past few years and many more can be expected in the future. Most of the developed countries consider IPR protection as an instrument to retain competitiveness. But intellectual property organisations and national governments have an interest to incentivise the creators for their creation and provide adequate environment for newer creations. But in the present scenario, where global information super-highways are emerging with associated applications, the users of technologies, especially in the developing countries, may prefer a wider-use permissible harmonised approach to ensure the development of a free and open global electronic market place, without any territorial restriction. Characteristics of the Digital Medium: IPR related Blurring of territorial borders Replication Easy transmission, compact and multiple use Interactivity Interoperability Any transaction in the cyberspace is carried out at multiple platforms. It is observed that trade conducted electronically generally has a relatively high intellectual property content. Creation of a secure and predictable legal environment for protection of intellectual property rights would foster the development of electronic commerce. Replication 5 Kaushik (1998a)

6 The ease with which authored works in digital form can be replicated poses a difficult problem for the law to handle. In the existing copyright regime, there is a general perception that making copies for personal or private use is considered fair-use and lawful. While the technology of reprography has improved dramatically, in digital domain, perfect multiple copies can be generated by the same technology. Therefore it has become even more difficult for the copyright owners to exercise control over replication of their works and seek compensation for unauthorised replication. The copyright system for the print medium has focused compensation and protection on sales of copies of copyrighted works. But in the digital world the trend may be to reap the financial rewards for creating and disseminating intellectual products by charging for access to and use of digital works and limiting rights to use and copy these products. Besides, the digital medium also provides lot of scope for using restricting technologies against illegal copying of copyrighted material and commercial misuse of works. Efficient transmission, compactness and multiple use Another characteristic of digital media that poses problems for traditional IPR systems is the ease with which digital works can be transmitted and used by multiple users, compared to paper versions of the works. A pirated version of a digital work can be loaded into a computer connected on a network of computers or a large computer system with multiple user network, each of whom can have ready and virtually simultaneous use of the same copy. Compactness is another characteristic of digital media, which has potential to create new kinds of legal problems. In comparison to print and other traditional media, digital works do not take up much space and hence such works are inherently easier to steal. While the compactness of digital media makes it possible to put company records, whole libraries, encyclopaedias and the like, in a set of compact discs, some new kinds of intellectual property law problems are bound to result from these new assemblages of materials, which were unheard of in print world. This has led to development of elaborate systems with access restrictions and regulations, which in turn, has thrown up issues of right to regulate, who should regulate, types of rights to be controlled and kinds of access to information sources. Interactivity Digital transmission of copyrighted works has enabled new services in the form of specialised news and data services, commercial on-line services such as Compuserve, AOL etc., and new emerging services like video-on-demand, TV and music services. All these services function with Internet as the delivery medium. With regard to copyright, these services differ from the broadcasting and other delivery mechanisms of the past, as there is no broadcaster involved. A wide variety of works and services are made available on a server of the service provider for interactive access and use at the time determined by the user. The service provider may be just a passive participant. The amount of transmission traffic handled by telecommunication carriers for such interactive services has increased dramatically in recent years. New intermediaries have appeared in this delivery process, such as Internet Service Providers that provide a link between users and the telecommunication carrier, making the digital architecture much more complex. Works from different categories are fixed in a single tangible medium of expression increasingly. This is true as the development of the global infrastructure progresses and the ability to create and disseminate interactive multimedia or mixed media products increases. The very promise of multimedia work is that it combines several different elements or types of works (text, sound, still images and moving images into a single medium). Works protected by copyright are going to become less and less differentiated by type and more and more equivalent to one another because they will now be in the same medium. This equivalence of works in digital form will make it increasingly easy to create a difficult-to-classify work by combining what have previously been thought of as separate categories of works for copyright purposes. This has given rise to the

7 consideration of forming a separate category under the present Copyright laws in the future or it may even lead to eliminating categorisation. It is understandable that when a user looks at the information on a site, the copy being viewed is merely one that was made by the site owner and transmitted to the user upon request. In this case, the copyright infringement issue becomes irrelevant because no one other than the copyright owner reproduced copies, prepared derivative works, distributed copies, as prescribed by the copyright laws. But the lawmakers emphasize that for a user to be able to view the work that was transmitted to the user s browser from the web site, a copy could be made that resides at least temporarily in the RAM of the user s computer 6. Such an amendment would hold the Internet Service Providers (ISPs) and telecommunication providers liable for infringement regarding temporary but illegal copies passing through their facilities under abetting provisions of the law. Due to the controversial nature of this issue, the proposed law to extend reproduction rights for temporary reproduction has not been included in the new Treaties of the WIPO. But clearly, the solution to copyrights in the digital medium lies beyond the internal architecture of Internet. Effective copyright protection can not be relegated to the point where content is on the transmission path of the Internet. A hyperlink used by a site does not directly cause copying of any substantive content by anyone, but instead merely provides a pointer to another site. The link ed site s URL that the linking site provides to its users is a fact not protectable. Hyperlinks may be an issue covered under the competition policy, but definitely not an intellectual property. But if this is so, the issue arises with regard to infringement in the act of creating an unauthorised hyperlink. In an ordinary linking situation, the linking site uses a brief textual or graphical reference designed to inform the user of the linked site s content. The use of such informational references can be justified either by asserting that they are not copyrightable or by asserting that they are a fair use of the original author s work permissible under copyright law. In other words, readers are free to go and look up a book reference in the library. By this analogy, the reader is free to click on a hyperlink even though the site owner may feel that access to material in the particular site should be gained only by accessing the site directly and the linking site contributes to the act of infringement 7. Traditionally, the library has been the principal point of access for books, journals, government and public domain information for the public. With the continual advancement of digital computing, storage technology, and widespread use of Internet, digital libraries are emerging. The CD-ROMs are replacing journals and books. The customers want speedier information from on-line library services through networks. It is now feasible to reproduce, emulate and extend the service provided by the conventional libraries based on paper and other means of collecting, cataloguing, searching and disseminating information. Due to financial pressure to reduce subscription of paper based journals, the technological upgradation, is being expected by the user community with Int ernet as the delivery medium. Interoperability Interoperability is essentially a subject of standards that is responsible for connecting a home computer with the network at local, state, national and international level. The issue that arises from interoperability is the fixing of location of IPR infringement and responsibility of the enforcement authorities. Perhaps this can be attributed to the unique feature of network, which 6 Are the lawmakers and their views are led by technology? Extending the argument further, multiple copies of the work may be made at the intermediate machines, as it travels from source to destination. In such circumstances each of these copies may need to be sanctioned by the copyright owner if the copyright law is amended to include temporary or transient reproduction of the copyrightable works on the network. 7 This paper is also providing hyperlinks to some important websites for readers without the authorisation of the respective sites. But other aspect of hyperlink is advertising at no cost, after all one of the major e- commerce related strategy is how to lure users to a website.

8 blurs territorial boundaries in cyberspace in terms of infringement as well as enforcement because legislating and enforcement are the sovereign responsibility of the state. Digital medium is essentially technology driven with variety of complex issues. Let the IPR regulatory regime realise that concerned technology is fast changing and regulations can not match pace with technology. Thus, the approach in building an IPR regime for the digital medium must remain flexible, broad and technology-neutral to an extent possible. Challenges Ahead: TRIPS Agreement As a general principle, intellectual property (IP) objectives and TRIPs provisions apply equally in the digital environment as to conventional commerce, indeed, no practical distinction can be drawn between digital or electronic IP and "other" IP. However, there are two distinctive features of IP in the digital environment that should be acknowledged. Firstly, trade conducted electronically generally has a relatively high intellectual property content. TRIPs provisions are therefore not only relevant in principle to electronic commerce, but such provisions are highly significant from a practical perspective. E-commerce is greatly affected by wide variations in intellectual property rules - proportionately more so than general commerce. The rapid growth of electronically conducted trade will therefore increase emphasis on ensuring the effective implementation and enforcement of existing TRIPs provisions. Secondly, the administration and enforcement of national IP laws in the digital environment are confronted with significant challenges as regards to the definition and enforcement of copyright and related rights, and the delineation and enforcement of trademark rights, as well as the trademark/domain name overlap. The practical necessity of territorially based jurisdiction can also be problematic in the enforcement of IPRs in relation to e-commerce. These challenges are not always confined to e- commerce, to some extent they are apparent in the general trend towards more geographically distributed or borderless trade patterns. At the same time, e-commerce offers new practical solutions to long-standing problems of enforcement and widespread benefit sharing. In early 1998, the US made a proposal at the WTO to declare the electronic medium as a tarifffree medium. Never in the history of GATT or the WTO, a subject such as this was introduced in the agenda for the Ministerial Conference (highest decision making body at the WTO) at such a short notice. In mid-1998, the Ministerial Conference declared to carry out a comprehensive work programme in view of the challenges emerging from Internet commerce. The work programme focussed on the existing trading rules under the WTO within a specified time frame 8. Renato Ruggiero, erstwhile Director General, World Trade Organization, expressed his views on the objectives of the comprehensive work programme, namely- a) it will help in conforming and consolidating the disciplines and rights which already exist, notably in GATS (General Agreement on Trade in Services) and TRIPS (Trade-Related Intellectual Property Rights); b) second, it will facilitate identification of problems where negotiations are necessary to amend existing agreements, notably, in the case of ITA (Information Technology Agreement); and c) finally, to decide if there are more areas of conflict, not covered under the existing arrangements. The Geneva Ministerial Declaration required the General Council to establish a comprehensive work program to examine all trade-related issues emerging from global electronic commerce. The respective Councils and Commitees identified specific issues that required to be closely studied before finalising the report for the General Council. However, complexity in the issues emerging from electronic commerce resulted in pushing the deadline further from the Seattle Ministerial in 8 Final report of the work programme must be submitted to the General Council before the Seattle Ministerial Conference, December Currently, there is a likelihood of Doha Ministerial in November 2001 may take up some of the urgent issues like the US proposal on electronic transmission.

9 1999 to Doha Ministerial in Still by June 2001, the Councils were not able to reach consensus on the specifics. In fact, there is a general consensus on the issue of protecting the sanctity of the existing multilateral trading system and move forward from the present. Council for TRIPs Protection and enforcement of copyright and related rights, Protection and enforcement of trademarks, and New technologies and access to technology. The WTO is currently of the view that more work and experience is required to identify which intellectual property issues could be resolved by right holders themselves and which would require governmental action at the international level. Some of the relevant trade related concerns emerging from electronic commerce in the context of the TRIPs are raised in the WTO s Work Programme on Global Electronic Commerce. However, in view of the provisions of the TRIPs, some of the major issues are as follows: Copyright: Linkage to TRIPs Agreement E-commerce reached its significance on the international trading scene almost entirely since the conclusion of TRIPs Agreement. Hence the substantive provisions on copyright do not fully address issues arising in the digital environment. The negotiation by WIPO members on the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) was in part prompted by this lacuna in TRIPs and the Berne and Rome Conventions. The WCT responds also to some copyright provisions of TRIPs itself. The WIPO Diplomatic Conference of December 1996 also adopted a number of agreed statements concerning certain provisions of the WCT, which clarify how the provisions are to be interpreted, and thereby facilitate their practical operation 9. Support for the WCT and WPPT, as measured by ratification/accession, is not confined to any one economic or geographic group, suggesting that the new norms it establishes attract broad international support. There are compelling reasons for WTO membership to consider how the provisions of the WCT and WPPT relate to TRIPs provisions and how they might be used further to enhance the relevance of TRIPs in the digital environment. A significant proportion of the norms embodied in the TRIPs agreement are provided by the incorporation, by reference, of key WIPO treaties - the Paris, Berne, Rome and Washington Conventions. Close linkage in their substance, consistency and coordination between TRIPs norms and WIPO treaties is of vital importance to the efficacy of international cooperation in the IP domain. For instance, since the conclusion of TRIPs, the drafters of the WCT took account of the contributions of TRIPs to copyright norms (e.g. in relation to protection of software). In light of the work already done in WIPO towards creating appropriate amendments to copyright protection that assists its efficacy in the on-line environment, members may encourage continued support for mutually supporting linkage between TRIPs and the provisions of the WCT and WPPT. In fact, any new provisions should not, however, impose more onerous standards than those already contained in the WCT and WPPT. Copyright: Harmonization of National Laws In addition to articulating the relationship between TRIPS and the WCT and WPPT, member countries must make a practical contribution to copyright protection in the digital environment. Foremost responsibility of national governments is to bring their laws into line with relevant 9 For instance, Article 1(4) of the WCT, which clarifies that storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention. Also noteworthy are the agreed statements on Article 10 of the WCT and Article 16 of the WPPT concerning the applicability of existing exceptions to the digital environment and the devising of appropriate new exceptions for that environment.

10 provisions of the WCT and WPPT 10. The overall objectives of TRIPs would clearly be served if Members were encouraged to revise national laws to bring them in line with the provisions of the WCT and draw a framework of international copyright management in the digital medium. Trademarks Judicial authorities in a number of countries are trying to cope up with the issues emerging from use of a trademark on the Internet. This applies in the context of defining trademark infringement in the digital environment, and determining what will qualify as "use" in connection with goods or services for the purposes of establishing a registration or defending a registration from a removal action. Given the overall benefits of harmonized law in this area, and the fact that in electronic commerce, use of a trademark will tend to take place concurrently in multiple jurisdictions, it would be beneficial for greater information exchange and coordination of legal developments. It would be premature to consider developing specific recommendations in the framework of the current electronic commerce work program. In addition, valuable work is under way in WIPO on this issue, under the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT). Any outcome of this program may facilitate greater coordination of law in this field, and may form the basis for any future work by the TRIPs Council. Well-Known Marks The TRIPS provisions on well-known marks 11 expand on Article 6bis of the Paris Convention for the Protection of Industrial Property. The TRIPs provisions extend the scope of Article 6bis to cover services, and goods and services. The WIPO has since 1995 been examining the issue of the protection of well-known marks, including in the context of their use on the Internet. The WIPO SCT provisions dealing with this issue has developed a set of draft. It appears that the aim is to have these draft provisions adopted as a joint resolution of the WIPO General Assembly and the Assembly of the Paris Union. However, this would not exclude the possibility of including the provisions in a WIPO treaty at some future date. Given the importance of this issue, and the existing interrelationship between the TRIPs and Paris Convention provisions on well-known marks, in considering the issue of well-known marks in the context of electronic commerce, the TRIPs Council has taken account of WIPO's work in this area. Internet Domain Names The issue of trademarks and Internet domain names has been the subject of an extensive international consultation process by WIPO. The final report of which was published on 30 April The report was then submitted to the Internet Corporation for Assigned Names and Numbers (ICANN), the corporation established to manage the domain name system. The ICANN considered the report's recommendations on a range of issues arising out of the interface between domain names and intellectual property rights. Outcomes from the meeting at ICANN included endorsement of the principle that domain name registrars adopt an appropriate dispute settlement procedure. Several of the other issues dealt with by the report, including those on wellknown marks, were also referred to the ICANN Domain Name Supporting Organization (DNSO). In the event that ICANN eventually decides to adopt some or all of these recommendations, it will assume the status of a de facto international standard. Border Measures 10 Though, compliance with WCY and WPPT under WIPO is not a mandatory unlike as the case with the TRIPs provisions. 11 See Articles 16.2 and 16.3 of TRIPs 12 Accessible at-

11 While posing new enforcement challenges, advances in digital technology also create practical mechanisms for facilitating enforcement. One of the significant advances in the TRIPs agreement was its detailed arrangements for border control measures, reflecting the high practical value of such measures in dealing with international trade in counterfeit and pirated goods. Broader benefit of the e-commerce is seen in the promotion and understanding of the trade facilitation potential. Hence it is valuable to consider practical linkages between border control measures for IPR enforcement, and trade facilitation. The TRIPs agreement does not prescribe specific technological approaches to the implementation of border control measures, properly leaving this to national authorities to determine. Nevertheless, it may be useful to draw attention to the concrete benefits from practical coordination between the implementation of IP border control measures and trade facilitation through the use of ICTs. Suitable information systems serve the combined function of easing the administrative burden of customs procedures, and targeting and focussing border enforcement efforts. It is pertinent note that use of ICT shall remain at a practical level as a means of optimizing the use of resources in implementing TRIPs, rather than a mandatory norm or expected practice. By facilitating the effective implementation of TRIPs provisions related to border controls, networks could lead to increased compliance with national laws, implementing the substantive provisions of the Agreement. International Cooperation in Enforcement 13 One of the challenges for effective enforcement of copyright posed by the growth of electronic commerce is essentially practical in nature. There will be a continuing need for member countries to explore options for addressing enforcement issues, with as much practical coordination and cooperation as possible, and sharing of the fruits of national experience. The terms of TRIPS Article 69, under which members have agreed to cooperate with each other with a view to eliminating international trade in goods infringing intellectual property rights, should be interpreted to include infringements occurring in the electronic environment. This can be used to promote a valuable exchange of information on electronic trade in infringing goods or the use of electronic commerce to facilitate trade in infringing goods. The WTO within the framework of TRIPs provisions could coordinate the exchange of national experiences in this regard. The collation of information on the practical problems experienced by members can be a useful basis for ongoing discussions on how best to tackle the issues, and would itself serve a useful role in training and awareness-raising activities. Jurisdiction Issues The TRIPs Agreement, and the earlier international WIPO agreements (notably the Paris and Berne Conventions), responds to the distinctive nature of IPR as a component of trade. International cooperation in this respect is considered essential because of the particular vulnerability of IPR to differing, conflicting or territoriality-oriented forms of protection. The earlier focus was on the grant and availability of intellectual property rights. The national treatment principle in Berne and Paris Conventions, and the no-formality protection afforded under Berne Convention, are practical responses to the challenges of seeking and maintaining rights in the international marketplace. Such measures are of direct significance and practical value in relation to IPRs protection associated with e-commerce. However, the development of a digital domain of commercial activities, characterised by increasingly borderless or "virtual" trading patterns and the growth of trade in IP-rich products, creates new enforcement challenges which have raised questions about the continuing efficacy of territorially-based jurisdiction. Conflict between jurisdictions is not a new problem. But the potential scope and geographic spread of IPR infringement will continue to grow. To some extent, the greater spread of TRIPsconsistent intellectual property systems and the movement towards convergence of national 13 See TRIPS Article 69

12 systems should ease these problems. However, widely divergent approaches to jurisdictional issues in relation to intellectual property rights emerge in the digital environment, leading to tradedistorting effects. New Technologies, Access To Technology & IPR Administration E-commerce technologies have vastly improved global access to technological information in patent documentation. The entire cost structure with regard to accessing patent documentation has been revolutionized by its availability on the Internet 14. The TRIPs requires that patent applicants disclose the invention in a manner sufficiently clear and complete for it to be carried out by a skilled person 15. Most patent systems give effect to the further TRIPs standard that the applicant also indicates the best mode for carrying out the invention. The TRIPs norm requiring disclosure of technological information therefore combines with the revolution in the availability of info-communication technology, with the effect of greatly facilitating the flow of technological information and reducing its cost in line with the fundamental objectives of TRIPs. Further, the fact that the patent system may, under TRIPs, extend to new technologies, for example computer software, has led to increased accessibility to state-of-the-art technologies in rapidly advancing areas. This quality of the patent system represents a very considerable improvement over the trade secrets model, as it has shifted the balance between the protection of rights and disclosure of information in favour of the user. E- commerce technologies are also being used to practical advantage to improve the communication of information between national, regional and international intellectual property offices, and increase access to that information by people external to such organizations. Use of e-commerce in this way is enhancing the quality and speed of the IP administration services provided by IP offices around the world, and increasing the access to mechanisms offering IPRs protection. Such improvements brought by e- commerce in increasing access to technologies and facilitating the effective administration of intellectual property rights are an important aspect of the interface between e-commerce and IPRs. In light of the already evident benefits in this area, some members suggest that appropriate recognition of the advantages of e-commerce in this area should be made in the final report to the General Council. E-commerce provide a cost-effective and technically feasible means of collecting and distributing revenue from international markets for right holders who have not, due to infrastructure, cost or logistical reasons, had the capacity to pursue their commercial interests. This applies for instance to performers, composers and artists in developing countries, whose works are attracting increasing interest in international markets. Most WTO members have become TRIPs compliant in 2000, thus increasing the legal scope for administration of copyright and related rights. It is therefore timely to consider how the strengthened legal framework can be complemented by enhanced practical mechanisms for copyright administration. The Work Programme on Electronic Commerce could reflect the special needs of developing countries in this regard, and encourage technical cooperation with the aim of extending the benefit of collective mechanisms for rights administration. This brings bridging the digital divide issue within the scope of WTO. WIPO s Digital Agenda Protection for digital technologies is being addressed by WIPO 16. The 1996 WIPO Diplomatic Conference considered three treaties, namely the WIPO Copyright Treaty (WCT), the WIPO Performances and Phonograms Treaty (WPPT), and the WIPO Database Treaty 17. The WCT 14 Interested parties in any part of the world are now able to access large quantities of state of the art patent documentation effectively free of charge. 15 See TRIPs Article See Morton (1997) 17 For overview of the challenges that information technology poses for the international IP system, and the way in which this issue was dealt with at the December 1996 WIPO Diplomatic Conference.

13 explicitly extended copyright protection and rental rights to software, and committed countries to provide adequate protection from the circumvention of devices which in the near future will protect authors from illegal copying their of works. A controversial issue left to the discretion of individual countries was how to protect transient or incidental copies made to view as work (e.g., on the Internet). Content providers claimed that without strong reproduction rights, there would be no incentive to create and disseminate works on the Internet, while users and on-line service providers feared that innocent activities would be branded as infringement. The WPPT updated the Rome Treaty, but put off consideration of multimedia productions. Similarly the Database Treaty was tabled due to a lack of time, and concern about general inexperience with database protection 18. Each of these modernisations may eventually find a place within TRIPs framework. Other issues, including the intersection of domain names and trademarks loom in the background. If TRIPs is to remain vital and futuristically oriented, it will have to accommodate new technologies and emerging challenges. In July 1995, the EC published a Green Paper titled "Copyright and related Rights in the Information Society". It highlights issues essential for the development of the Information Society in Europe, including the information superhighway that will require harmonisation of IPR laws to ensure that right holders will make the material available while balancing the interests of users. Certain issues which are key to the application of copyright to the new technology are the new services and interactive nature of such services, the new emerging market structures, and the importance of cross-border services. The legal issues emerging from electronic transactions include identification of the author, the applicability of the traditional concept of originality as condition for protection, the concept of 'first publication' when a work can be simultaneously disseminated world wide, the concept of 'fair use' and the scope of exclusive rights giving the right to prohibit exploitation of work. It also seeks to harmonise the copyright law applicable to database structures, in whatever form, on-line and off-line (CD-ROM etc.), besides envisaging the introduction of a new economic right, sui-generis, which would protect the substantial investments of database owners. The US efforts have been far more objective in terms of IPR protection in the digital medium. It is understandable because info-communication technology development is essentially US-centric. Few Grey Areas in Copyright Reproduction right to implement strict control of reproduction, and associated exceptions; New definition of communication to the public specially in the network environment; Legislation on transmission right over network and digital broadcasting rights for digital dissemination Moral rights in an interactive environment. The Digital Era Copyright Enhancement Act attempts to update and preserve balance in the Copyright Act, advance educational opportunities through distance learning, and implement the WIPO Copyright Treaty, and Performances and Phonograms Treaty. Analog or digital transmission is also included as part of fair use. It is also pertinent to note that the case law for the digital medium is still in infancy. Currently the case law on IPR protection in the digital medium is building in the US courts. In the absence of any specific guideline or legal instrument, the courts are also hamstrung in taking decision on the respective complaints. Alternatively, the US courts have passed few judgements in such cases based on the understanding of the conventional IPR protection framework. Case of Napster is one such example. 18 There is a sui generis system of protection for databases in Europe, but no such protection is available in the US.

14 WIPO s Digital Agenda Broaden the participation of developing countries through the use of WIPONET and other means for - access to IP information - participation in global policy formulation - opportunities to use their IP assets in e-commerce. Entry into force of the WCT and the WPPT before December Promote adjustment of the international legislative framework to facilitate e-commerce through - the extension of the principles of the WPPT to audiovisual performances - the adaptation of broadcasters rights to the digital era - progress towards a possible international instrument on the protection of databases. Implement the recommendations of the Report of the WIPO Domain Name Process and pursue the achievement of compatibility between identifiers in the real and virtual worlds through the establishment of rules for mutual respect and the elimination of contradictions between the domain name system and intellectual property rights. Develop appropriate principles with the aim of establishing, at the appropriate time at the international level, rules for determining the circumstances of intellectual property liability of Online Service Providers which are compatible and workable within a framework of general liability rules for OSPs. Promote adjustment of the institutional framework for facilitating the exploitation of intellectual property in the public interest in a global economy and on a global medium through administrative coordination and, where desired by users, the implementation of practical systems in respect of - the interoperability and interconnection of electronic copyright management systems and the meta-data of such systems - the online licensing of the digital expression of cultural heritage - the online administration of IP disputes. Introduce and develop online procedures for the filing and administration of international applications for the PCT, the Madrid System and the Hague Agreement at the earliest possible date. Study and, where appropriate, respond in a timely and effective manner to the need for practical measures designed to improve the management of cultural and other digital assets at the international level by, for example, investigating the desirability and efficacy of - model procedures and forms for global licensing of digital assets - the notarization of electronic documents - the introduction of a procedure for the certification of websites for compliance with appropriate intellectual property standards and procedures. Study any other emerging intellectual property issues related to electronic commerce and, where appropriate, develop norms in relation to such issues. Coordinate with other international organizations in the formulation of appropriate international positions on horizontal issues affecting IP, in particular - the validity of electronic contracts - jurisdiction. Commerce on the Internet involves sale and licensing of intellectual property. To promote an effective environment, sellers must know that their intellectual property will not be pirated and buyers must know that they are obtaining authentic products and not pirated copies. For this reason, international agreements that establish clear and effective copyright, patent and trademark protection are necessary to protect against piracy and fraud. While technical means of protection, such as encryption, can help combat piracy, an adequate legal framework also is

15 necessary to deter piracy and fraud and to provide legal remedies when these crimes do occur. To address these issues, each national government should tailor their protection according to international agreements, in such a way that reflects the preservation of their national interests. While some of the issues may be resolved by proper amendment to domestic legislations, implications of others may need to be analysed carefully to sustain the balance between various interests. Domain names link up with trademark has led to the fresh introspection within the international legal framework for IPR protection. Presently, the WIPO in association with ICANN has evolved a consensus on procedures for resolving domain name disputes. But these procedures are not part of any of the international agreements. Procedures for resolving domain name disputes (ICANN/WIPO) In order to defuse conflicts, the WIPO (World Organization for Intellectual Property) and the ICANN (Internet Corporation for Assigned Names and Numbers) set up a uniform and obligatory administrative procedure for resolving disputes over first level domain names ".com", ".net", ".org" the Uniform Domain Name Dispute Resolution Policy. This procedure has been applicable since December 1999 and implemented by, among others, the WIPO Arbitration and Mediation Center. Status Report of WIPO Arbitration on gtlds (2001) Source: WIPO Aribtration Committee (August 2001) Domain names are essentially Internet address of a website, for example or Sony or General Electric, these names are well-known names, which are protected under respective trademark laws and these organisations have exclusive rights to use these names. Such names carry with it quality, brand name, customers trust, etc. But domain name allocation is based on first come-first served basis. Thus, whosoever applies for a domain name first get it irrespective whether the name is a well known and established name or the claimant is a genuine owner of that name. This anomaly has led to cybersquatting phenomenon in cyberspace, where individuals have registered some of the well-known names such as Harrods, Asea Brown Boveri (ABB), Delta Airlines Inc., Encyclopaedia Brittannica, etc. In some cases, indivi duals have registered names, derogatory and abusive in nature for some well-known names, like natwestsucks.com, christiessucks.com, natwestfraud.com, etc. In the absence of appropriate legal instruments, respective organisations have no legal recourse of getting relief against such infringements. The ongoing work in WIPO, the context of its Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications has also indicated other issues arising from the use of trademarks on the Internet as well as in connection with well-known marks 19. In order to provide relief to individual organisations against cybersquatting infringements, the WIPO has formed a WIPO Arbitration Committee with judicial powers to evict unauthorised cybersquatters in Status Report of WIPO Arbitartion Committee (till August 2001) Year Number of Cases Domain Names Transferred Domain Names Cancelled Complaints denied Withdrawn/Terminated 489 Total: 2821 Total Liedes (1997)

16 Source: Note- gtld are generic top level domain names (org, com, net, etc.) The exponential rise in the cases before the WIPO Arbitration Committee and number of names transferred is an indication of growing concern for the legal recourse for IPR protection (domain name) in the digital medium. However, there is considerable doubt on the basic premise of wellknown marks vis-à-vis domain name and its respective protection. Generic names vary from region to region, respective jurisprudence does not allow registration of generic names as trademarks. However, the latest case of transfer of name madonna.com to Madonna Ciccone by the WIPO Arbitration Committee conflicts with the basic premise on the non-registration of generic names such as Madonna, which commonly reflects mother in most regions. In view of such discrepancies, it is difficult to establish a harmonised system of registering domain names with equal protection such as protection of trademarks. In fact, all issues related to intellectual property in the digital medium are similar to issues in conventional medium but differs in terms of protection, jurisdiction and enforcement. It is imperative to note that intellectual property needs to be protected irrespective of the medium. But IPR protection and enforcement has territorial boundaries and jurisdiction. Blurring of borders on the Internet poses a challenge to law enforcement and their sovereign jurisdictional authority. Determining the location in cyberspace is one of the major limitations of enforcement and protection. Another issue is the legal recognition virtual presence or image. For all purposes, IPR is a non-tangible commodity and its existence is legally recognised under international norms. For example, an invention must be recognised and authenticated by the respective Patents Office before granting patenting rights to the inventor. Likewise, for granting copyright, the authorship must be authenticated and registered in the Copyright Granting Office. Thus, the issue of recognition becomes another limitation in granting intellectual property rights. Besides, granting of right is bounded by territory within the jurisdictional authority of the granting authority. This brings in the issue of enforcement. For example, protection of copyrighted material in the conventional form (book form) is under jurisdictional authority of the government. But a government has no jurisdictional authority on the digitised text hosted at a foreign web server, though the owner may or may not be its citizen. The granting of intellectual property right in the digital medium, overlapping territories in cyberspace and absence of mechanism or framework to fixate the location further complicates matter for the IPR protection in the digital medium. Outstanding IPR Issues In fact, the areas of intellectual property at the WTO are purely looked at the law of copyright and the law of trademarks. It only sets out the broad policies, which needs to underline any legal reform in these particular areas. But work of WIPO is far more comprehensive on the digital medium. The recommendations of the Final Report of the WIPO Process have been directed at the most egregious problems between intellectual property and domain names and at obtaining effective solutions to those problems. Other issues remain outstanding and require further reflection and consultation. Multimedia works do not fall clearly within any of the nine types of works provided within the Copyright provisions 20. It is not appropriate to classify such works as computer programs, since their data content is often just as important as the computer programs, which go into making the data content interactive. While the decision of Nintendo v Golden China has treated a multimedia work as a cinematograph work, it may be stretching the concept of a cinematograph work to encompass multimedia works. Cinematograph works are by tradition non-interactive and nondynamic, unlike multimedia works. The EC Database Directive classifies multimedia works as databases. Such variations are commonly evident because traditional law on IPRs continues to guide the IPR mechanism in the digital medium. The case law treating multimedia works as cinematograph may be a good suggestion but definitely it is worth examining. But the definition of 20 Lehman (1994)

17 a "compilation" will have to be extended to include databases of both literary and non-literary works. Or should some kind of sui generis right be conferred to protect the substantial commercial investment made in compiling the database? Case laws have indicated that even transient copies are copyrighted works. Article 1(4) of the WIPO Copyright Treaty also confirms this. The fact that the copy is in electronic form is immaterial. And the fact that it is merely a transient copy also appears irrelevant. Unlike section 17(6), UK CDPA, the position is not very clear in other countries, Singapore Copyright Act, merely confirms that storage in a computer is a reproduction. This issue requires re-examination of the law in this respect, which appears permitted by Art 9(2), Berne Convention. Should a transient electronic copy of a work be a reproduction? Since the transience of the work cannot be defined with adequate precision, it may be more appropriate to treat all transient copies as reproductions, and have generic or specialised defences for those transient copies made in the process of accessing Internet resources. If the right of reproduction includes the right to make transient copies, the introduction of a right of dissemination becomes a matter of less urgency, since each digital dissemination will invariably entail the making of reproductions. But the right of dissemination is not a right, which is clearly recognised in the Copyright Act. The right of digital dissemination is conceptually different from public performance, broadcast and cable transmission. The right of digital dissemination is proposed under Art 8, WIPO Copyright Treaty. It is worth looking into this right, but the scope of this right has to be very carefully examined to ensure that it is not overly broad. In addition, specialised defences have to be made available for intermediaries such as ISPs who will be components in the chain of dissemination. The concept of moral rights may cramp the development of a multimedia works industry, since authors of each work included in the multimedia work can assert their rights over every component of the multimedia work. The TRIPS agreement does not require to compliance of Art 6bis. There is also a raging dispute as to whether the scope of such moral rights is measured objectively (as in by way of a reasonable man s standards) or subjectively (as in whether the author objects to this treatment of the work). Furthermore, the problem of identifying authors works in the digital environment may be resolved with greater use of electronic rights management to tag digital works. In view of the uncertainty of the scope of such rights, their unclear utility and the pending technological developments in electronic rights management. It is important to have a broad and flexible fair dealing defense to cope with all the possible combinations and variations in the use of digital works. Since almost every copyright defence is based on the concept of fair dealing, it is important to remove any artificial strictures on the application of the fair dealing defence. A flexible defence will also cope better with a rapidly changing information technology industry, where new and potentially infringing uses of works may be made with new technical implementations. There should also be a new defence for transient copies made as an essential step in the utilisation of the work, akin to that for computer programs. There is a total lack of international consensus in this area. We are witnessing international developments in the area eg the proposals by the IAHC, WIPO and ITU. While domain names have some characteristics of trademarks, they also lack some of the characteristics of trademarks. Domain names have been registered as trademarks in some countries, but it remains to be seen whether the trademark system is the appropriate system for protecting domain names. Any domestic implementation for protecting domain names will not adequately address the international problems of partitioning the domain name space into second level domain name spaces based on geography, the protection of famous international trademarks, and the registration of the same domain names for different goods and services. However, an even more fundamental problem is that technology itself cannot be regulated. Both the developing and the developed economies in the IPR war have the same "weapon"

18 technology: ever cheaper, faster, smaller, and smarter semiconductors and products, such as PCs and more ubiquitous data networks. There can be no global agreement on banning technologies used by hackers and pirates because these technologies are the ultimate embodiment of the term "dual use:" their essential commercial purpose is inseparable from their contra-legal potential. Moreover, it is in the immediate economic interest of the producers of these technologies to ensure that they are as quickly and widely propagated as possible on a global basis. Consequently, pirates often have access to the same core technologies as IPR holders within weeks, or at the longest, a few months. Therefore, legally there are more IPR related issues that are not addressed within the ambit of the work carried out by the TRIPs Council. These include: Identification Watermarking Encryption Certification Monitoring and Tracking Payment Systems Privacy Identification Watermarking Watermarking is the embedding of Copyright management into protected digital objects. It is the method by which the Identifier can be indelibly stamped in order to provide evidence of ownership. Watermarking is seen by many as an essential part of copyright management. Encryption Encryption is a kind of locking system whereby information can be locked up with a key and rendered unintelligible and therefore useless to anyone without the key to unlock it. There are two basic types of encryption used to protect copyright material- symmetric encryption and asymmetric encryption. The symmetric encryption employs a single key and is widely used in set top boxes for digital broadcasting, while the asymmetric encryption employs two keys, one private and one public, which will be widely used on open public networks, like the Internet. Encryption systems will be vital for Copyright management. However there are a number of problems with Encryption, mostly connected with regulatory issues. In particular, governments in the USA and France are anxious that widely available encryption will make law enforcement via message interception impossible. Certification As the trading of digital protected information will take place between parties who are not known to one another, some system to enable both parties to trust each other is essential. Certification is the process whereby parties to a transaction can be vouched for by a third party, often referred to as a Trusted Third Party (TTP). Certification usually employs asymmetric encryption technology. For certification to become widespread, the creation of a Public Key Infrastructure (PKI) is necessary. The development of an international PKI is currently hindered by some governments objections to the widespread deployment of encryption. Monitoring and Tracking Once digital protected objects have been injected into a public network, the process of tracking and recording their usage must take place. Tracking and monitoring transactions involve protected digital objects, which is assisted by the identification of information contained in

19 watermarks and on labels. The infrastructure to track and monitor such objects is not yet in place but constitutes a major portion of digital Copyright management systems. Payment Systems Once a digital trade has been made, payment must be made to the copyright owners. Digital payment systems are currently in development stage throughout the world. While it is not a core part of an IPR, digital payment systems are essential to its function. Payment can be by micropayment, that is a very small payment, or through some kind of aggregated credit system, like a credit card. A new standard is being established for such digital payments. For example, major financial institutions and technology vendors are supporting the SET standard, although there is still some question about its deployment. Privacy The deployment of IPR regime poses some basic questions about consumer privacy. Information gained from the use of monitoring and tracking technology could be of enormous marketing value. However, consumers may not wish to yield their personal information in order to enable ever more targeted marketing by media companies. Therefore there needs to be some balance established between consumer privacy and rights protection systems. This will be partly achieved through technical measures, partly through policy initiatives. The need for an acceptable, secure, standard, open electronic market place for digital rights and the accompanying content is an absolute priority. Without which, there is a grave risk that the investment already made will be jeopardised and, perhaps worse, the information user community, professional and public, will grow weary of rights holders inability to manage content electronically and will turn elsewhere to find what they already have in the analogue world. As admirable as the multilateral trading regime appears in the abstract, its implementation will be fraught with difficulties. Some are institutional. Notwithstanding the cooperation agreement signed by the WTO and WIPO institutional tensions and contradictory approaches are certain to appear. Some are legal. Anglo-American common law and the code-based systems employed by most of the rest of the world can vary widely in their treatment of IPR issues. Some are "politico-cultural." The divide is not simply a North/South one. The 1996 WIPO Treaty negotiations revealed the starkly antipodal positions of US government negotiators, who advocated the most protectionist approach. The primary goal of IPR protection framework must be to serve free flow of information rather than onerous legal complexities restricting flow of information on the web. Conclusions Internet has blossomed into an appliance of everyday life, a medium accessible from almost every point on the planet, brimming with an inestimable range of data and information. It has become a vehicle of a new, global digital economy, which has developed the physical world, altering traditional concepts of economic, political and social relations. Everyone with a computer and an Internet connection creates his own web pages and thus become a publisher. Any user can log on to the Net and obtain information. Hence the rules once applied to only a few, bind million of people. While more and more technologies and applications are emerging to enhance the full potential of the Internet, it has raised a number of debatable questions with regard to applicability of IPR in such an environment. At the same time, alternative IPR rules are being attempted, though it may take a longer time to get adopted in many countries. While patent, trademark and trade secret laws have become more relevant in the context of digital medium, it is the area of copyright law as applied to multimedia products in cyberspace that continues to receive the most attention. In several countries, and also at different international forums, appropriate copyright laws are under way, proposing solutions to the problems thrown up by digitisation due to the characteristics of digital media. These include

20 activity at WIPO, which considered and adopted an extension to the Berne convention in December 1996, the European Green Paper on Copyright and Related Rights in the Information Society, prepared by European Commission, the US White paper on Intellectual Property and other initiatives from working countries such as Australia, Canada, Malaysia and Japan. Such works have become general guidelines to develop an internationally harmonised framework for protecting copyright in the digital medium. Network users assert that Internet is the global medium for rapid digital dissemination of information and information needs to be free. But the content industries and right holders consider network as one gigantic copying machine and believe in metering every drop of knowledge. In the field of IPR, cross-industry co-operation and self-regulation can enhance digital copyright protection and spread the value of Internet and World Wide Web to a wider audience, serving to increase, not devalue, the worth of copyright. A delicate balance is required between the economic stakeholders of Internet, namely Copyright holders, content providers and Internet access providers who have a mutually dependent relationship - quality online content increases the demand for Internet access, while increased Internet access increases the demand for quality content. Otherwise the Internet can dissolve easily into a muddle of competing and parochial interests. With the new WIPO Treaties, the process of adapting the international rights regime responding to the needs of ensuing global digital economy has just begun. The twin forces of digitalisation and globalisation have set in motion probably a new way of looking at IPR issues which should harmonise the interests and rights of all concerned in the economy and market place: content providers, on-line service providers, hardware manufacturers, the academic community and the general public. Also it should recognise the fact that any international norm setting needs to take note of the wide diversity in market structures, market performances, dissemination of technologies, comparative advantages, and the nation s capabilities to develop and assimilate technologies. The new WIPO treaties represent the level of protection at which global harmonisation is possible today, understandably represents a gradual and cautious approach. Internet has long been wild west, but after all, the policeman always shows up in the end. Bibliography Braga C. (1995) TRIPS: The Uruguay Round Agreement and its Economic Implications, World Bank Conference Papers, January ICSI (1999), "International Trade Laws & Cyber Laws", Backgrounder to the 27 th National Convention and 4 th International Conference of Company Secretaries, December 9-11, Vigyan Bhawan, New Delhi. Kaushik P. D. (1998) Global Electronic Commerce: Implications for India, Working Paper No.2, Rajiv Gandhi Institute for Contemporary Studies, New Delhi. Kaushik P. D., (1998a) Geographical Indications, Integrated Circuits & Undisclosed Information in ed. Bibek Debroy Intellectual Property Rights, B. R. Publishing House, New Delhi. Lehman B.A. (1994) Intellectual Property and the National Information Infrastructure, Preliminary Draft Report of the Working Group on Intellectual Property Rights, July Liedes J (1997) New WIPO Treaties: Evolution of the International Copyright System, National Seminar on IPR Issues for Culture and Software Industries in the Newly Negotiated Treaties under WIPO, New Delhi, Feb 1997.