INTERNET LAW

Lecture held in Intersteno congress, Lausanne, 1988, by Jari Niittuinperä
- see also the internet "slide show" of the lecture
 

Mister president, ladies and gentlemen, dear colleagues!

My name is Jari Niittuinperä. I am master of science and master of law from Helsinki university.

I have developed several years computer systems for insurance companies, first within the companies themselves and later for a company Progressive Financial Technologies Profit. This company is an international company that uses the most modern technologies that allow the systems to be build from small components.

I have been about ten years the president of Finnish Shorthand Association, previously worked in the Finnish parliament for eight years and still produce shorthand minutes every now and then for example Nordic Council and big organisations.

About Internet law

Half an hour is very short time to cover the title Internet Law. The German translation of the lecture is better: legal aspects around Internet. I have no possibility and I am not going to go very deeply into Internet law. First I am going to give an overview over the subject and after that take a very practical point of view to the area.

Internet

Internet has changed the world quite a lot and will do that even in the future. As Internet was created in 1960's it was an efficient network to change information within universities. But gradually it was used not only by universities but also outside them.

During the last years Internet has become more and more popular. Also business has found part of it, World Wide Web, a useful marketing channel. The numerous home sites made for Internet have changed the outlooks of traditional software programs as Ad's have started to design layouts. Though a number of different layouts the user interface is simple: find a link and go further to another page or site.

Introduction to Internet law

Internet includes several functions, e.g. World Wide Web, e-mail and discussion groups.

Internet is open to everyone. It is very easy to get information from Internet. The effective network, the easiness to change information by e-mail or discussion groups, and by my mind the keystone for the popularity of WWW, the easiness to link sites to other sites even on the opposite site of the globe, have caused many legal problems that never before in the history of mankind have arisen, not at least in the scope than today.

This is what Internet law deals with, all legal issues around Internet.

Here is a short list of issues that interest lawyers around Internet.

- intellectual property rights

- marketing in Internet

- privacy protection and security

- Internet business

- Internet provider

- criminal actions with the aid of Internet

Intellectual property rights give the authors of work several rights like copyright, trademark and patent protection. On the other hand it gives you as e.g. home site owners the same rights. But on the other hand you must observe the same rules. I will discuss these issues more thoroughly later.

Privacy protection and security is a big problem in Internet. Internet is a huge network that connects servers around the world. Hackers have been able to hack through Internet both the data stored in servers and data going through those servers. Quite often the servers collect information of the users of the server. Questions arise, like: Is it allowed to use this data? For which purposes it is allowed to use this data? Is the Internet provider entitled or even obliged to give information e.g. to police?

Internet business is international. The consumer and competition legislation varies in different countries. Which legislation should be applied in Internet business? In principle all of them. At least the legislation of the country where the server is situated is applied, quite often also the law of the consumer.

Buying through Internet has nowadays become popular. Encryption methods are needed to protect the privacy of the clients and there is a need for generally recognised electronic signature of an agreement.

Internet provider concludes contracts with people, companies and other Internet users. Also it has to connect itself to the root server of the Network. So, it has to conclude agreements and so the Internet provider has to understand contract law. One of the key questions that is still open is: Is the Internet provider liable of e.g. copyright infringements of its clients? Also in case some data is stolen from the server, is the Internet provider liable of the stolen data because of lacking data protection.

Internet gives also a platform to perform criminal actions. The international drug syndicates have e.g. used Internet for money washing and child pornographic pictures are spread through Internet.

Understanding Copyright law is essential

For this audience, I guess, understanding copyright and trademark law is important. Some of you may teach students how to build Internet sites and some of your local organisations may be interested to build an own home site. That is what we have done in Finland. The Finnish Shorthand Association has its own Internet site. By the way, its address is shown here:

http://www.netsonic.fi/~spy

I welcome all of you to see what we already have achieved. And this will develop all the time. Later this summer I will put also this lecture to the site.

Intellectual property law is international

Intellectual property law is international. The area is covered by several international conventions.

Copyright and neighbouring rights conventions

The copyright and neighbouring rights law is internationally regulated by Bern convention for the protection of literary and artistic works. Majority of countries have agreed this. This convention is administrated by World Intellectual Property Organisation (WIPO).

Important convention is also Rome convention for the protection of performers, producers of phonograms and broadcasting organisations.

Geneva convention for the protection of producers of phonograms against unauthorised duplication of their phonograms deals with copying in a large scale books, recording and so on.

There are three general principles in the Bern and Rome conventions:

1) principle of national treatment

Works originating in one of the contracting states must be given in each of the other contracting states the same protection as the latter grants to the works of its own nationals. So, if the protection exceeds the minimum level described in Bern agreement, the same protection must be given to works from all the member countries even though the protection level is lower in the latter country.

2) principle of the independence of protection

Protection is independent of the existence of protection in the country of origin of the work. If, however, a country guarantees a longer duration of protection than the minimum guaranteed by the convention, it is no obligation to give the same duration of protection.

3) principle of automatic protection

Protection must not be conditional upon compliance with any formality. So, to get the protection the author is never obliged to register the copyright.

As a summary, when using Internet you must follow the copyright law regardless the origin of the work, and remember: no copyright notice is required.

Trademark conventions

Trademarks to be protected require mostly registration. It is possible also to establish a trademark if the trademark in the country is commonly recognised within the trade or consumer circles. This requires the trademark to be used for a longer time.

Each country has its own registration authorities but there are also international registration bodies.

The so called international registration system is administrated by WIPO and there are some twenty members in the system at the moment.

Besides this it is possible to get European union trade mark. This is governed by Office for Harmonisation in the Internal Market in Alicante, Spain.

Database protection

European database directive and database treaty, proposed by WIPO, protect databases as compilations of work. This requires that the contents constitute the author's intellectual creation.

This gives database protection also in case there has been a substantial investment in either obtaining, verification or presentation of the data contents.

Minimum protection

Bern agreement guarantees the authors protection in several ways. Here is a list of rights among others that should be remembered as Internet is used:

- the right to reproduce the work

- the right to distribute copies

- the right to make adaptations and arrangements of the work - also the right to translations

- the right to display the work publicly

- the right to perform the work publicly

So, copying for Internet popular comics like Donald Duck is illegal. Don't even copy to your page music of other artists if the protection is still in effect. Remember that there is a lot of illegal material in Internet. So, a reason to use comics can't be that another person has used it.

In the markets graphic is sometimes sold royalty free. Then after the purchase of the product the graphics may be used freely. The terms and conditions should, however, be read carefully to ensure that also Internet use is allowed. Some images may be copied only for creating a link to the site in concern. Also changing the image may be prohibited.

Trademark protection

Trademarks are protected not only of use of the trademark itself but all the marks that may be confused with the trademark. Trademark is registered for specific classes of goods and services. The confusion is tested within these classes.

Work is protected

In Bern agreement there is a long list of works that are protected by copyright. A work may be whatever production in the literary, scientific and artistic domain whatever may be the mode or form of its expression. Also computer code is protected. It is not very easy to say generally what is actually a work.

A good advice could be: consider a work to be protected by copyright unless you know it is not. Almost everything you find from Internet is protected by someone's copyright, maybe not by the one who has published the site, mail or discussion group because so much illegal copying takes place in Internet.

System code is generally considered to be protected as literary works. The code consists of words.

Typically things that are protected by patents are not protected by copyright. So ideas and inventions are not protected by copyright but by patents. This requires always registration.

It is important to understand that ideas are not protected. It is not illegal to copy the idea of home page, but it is illegal to copy totally or partly the HTML or Java-code of the page. If a code is very simple as in HTML-code, it is normally very difficult to prove that a code has been copied if there are minor changes visible. However, if the program is very complex, it is easier, and as I said, copying a part of the code is enough.

Facts like Karl Gutzler is the general secretary of Intersteno or Lausanne is by Geneve lake are facts that are not protected. Also it is a fact that Geneve lake is here called Lake Lomond. They are considered ideas even though that it takes time to get this information. A compilation of facts may be, however, protected as a compilation. In USA Motorola gave real time information on NBA games. The US Court of Appeals stated that it was legal to send the game information as they were facts.

Titles, names, short phrases and slogans are not protected by copyright. So, the title of the page may be the same as the one of a famous book or movie. Some of these can, however, get trademark protection, like the name of a company or a slogan. One important trademark can be Internet-address.

Examples of trademarks

Trademark can be a word like "Swatch" or several words, slogan, letters, combination of letters and numerals, device mark or sound mark. Also the shape of the product can be trade mark as Coca-Cola bottle.

Duration period

As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year. This is counted from different time stamps, like the death of the author or if the author is not known, from the time as the work was lawfully available to the public or in case of audiovisual works from the time the work was created.

In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of such a work.

Phonogram protection lasts 20 years from the first fixation or the first publication of the phonogram.

Trademark registration is valid 10 years at a time, but the registration may be renewed.

Moral rights

Copyright can be given or sold to another party. This means that the rights can be transferred, however, not so called moral rights.

Moral rights mean that the author is entitled to claim authorship of the work and the right to object to any modification of the work which would be against the author's honour or reputation.

This means that if you design a home page, you have right to include a notification of the authors of work regardless of the owner of the pages. Quite often there is a special page reserved for the authors.

If you have sold the work to another party and someone else changes the pages, they are depending on the agreement, allowed to modify the system, but they should somehow express what parts have been changed. Otherwise they may insist that you have done something that you have not and this may infringe your honour or reputation.

Copyright notice

Copyright does not require any formalities, like registration. Previously there were different rules in different countries how the copyright should be shown. Though the notice is not required, it is suggested that the copyright is shown by ©, name of the author and year of the first publishing. Sometimes after the text there is a text All Rights Reserved that previously was required in some countries. Here is an example:

© 1998 Jari Niittuinperä All Rights Reserved.

At least this notice gives the information who owns the copyright and so people can contact you if they are afraid of infringing your copyright.

Trademark notice

There is no requirements for trademark notice either. It is not needed to get the protection. However, if a trademark is registered, it is allowed to add a mark â. Sometimes a trademark is marked by ä.

Everything is not denied

Quotations from a work, like quotations from newspaper articles, are allowed.

It is also possible that a country decides to let utilisation of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching.

However, quotation or copying for teaching requires that it is compatible with fair practise and that their extent does not exceed that justified by the purpose and that the author and source are specified.

Typical example of fair practise is that copying part of work may sometimes be allowed for teaching purposes, but making profit of these copies is not. Also quotations from a speech for news may be fair practice.

It is quite normal that people present there hobbies in Internet. Also Intersteno has been presented in some home pages. Then also the Intersteno logo is often shown. In principle this is against the intellectual property rights of Intersteno if Intersteno don't allow that kind of pages. However, I suggest that these pages should be allowed. This is in Intersteno's domain to enlarge the knowledge of Intersteno and its activities and by this way Intersteno gets advertisements by nothing. It should be evident from the sites that it is not Intersteno who has built the sites. A good advice could be that Intersteno defines rules how its name and logo and other material can be used.

Linking and framing

Much discussed issues are linking and framing.

In Internet it is very easy to go from one place to another through links. During this lecture you have seen Internet-browser to be used. In the left part of the screen there has been a so called navigator. In the navigator there are links which are marked by underline and by clicking the link, you can see the linked page on the right part of the screen.

The links have so far been links to pages within this lecture. But may I link to a site owned by another person? It is implicitly agreed that linking is always allowed if the linked page is shown as it was originally designed, so that nothing extra is shown in the page. However, if a logo of a company is a link to the page of the company in concern, this may violate trademarks if the company don't allow the logo to be used.

I described just what is the structure of my presentation material: a navigator in the left and the body text on the right. This division of the page is called framing: the page is divided into two or more frames. I have used the same structure in the Internet pages of Finnish Shorthand Association. There I have a link to a picture of bark beetle  that in some languages is called a stenographer  because of the tunnels that it carves under the bark of a barn tree. The frames give the feeling that I have taken the picture which I have not.

Is this infringement of the copyright? - This is legally so far uncertain, but I would say that at least from moral point of view this is infringement and could be denied. If you are concerned of your own copyright I suggest that you put your name or link to the home page into all your sub-pages.

I have asked a permission to link to the page and I have, however, mentioned the source of the page by the link.

Domain names

Business has also found the value of Internet. It started to use Internet as a marketing channel.

Today your value can be that you know good Web-sites. What about if you don't know the Internet address of the company, the domain name? Is it somehow possible to find the home pages of the companies? One possibility is to use search engines like Altavista or Yahoo. The other way is to guess the domain name. For instance the home page of IBM is www.ibm.com and the home page of Microsoft www.microsoft.com. "Com" at the end of the name means that the address is commercial. Also other endings are used. There can be also national sites. Nokia has besides an international home site a local Finnish home site www.nokia.fi.

From the business point of view the address of the home site should be as easy to remember as possible. The name space is, however, restricted and there are companies who would like to have the same domain name. For instance as our company Progressive Financial Technologies Profit wanted to build its site, it wanted to have a site with name www.profit.com, but it was reserved for an American company. We were pleased to get a name www.profithome.com.

Some people or companies have registered domain names just to make money with the names. They buy names that they believe other companies want to use later. Quite often if a company changes its names and forgets to register the name immediately they find the same domain name to be registered to another party.

The biggest newspaper in Finland is Helsingin Sanomat. It owns a domain name www.helsinginsanomat.fi. If it wants an international com-domain name, it is reserved to one Swedish company. Does the Swedish company really need this name for its own purposes? Certainly not.

If someone registers a domain name with the aim to sell it to the real owner, this is called domain name piratism. Though the real owner would be entitled to the domain name, it costs more to start an expensive law suit than to pay a reasonable contribution of it.

Joshua Quittner was the one who started a discussion of the value of domain names by registration of his home page mcdonalds.com and asking people to write him at ronald@mcdonalds.com. Quittner gave the name back to McDonalds after it promised to give a charitable contribution.

Software piratism

Besides domain name piratism there is other types of piratism around Internet. Internet has made it easy to copy programs through Internet. This is called software piratism.

Bern convention denies copying and selling works. European union directive goes even further. It denies copying programs for personal use. It is likely that this practise will become world-wide.

Business Software Alliance (BSA) and Software Publishers Association (SPA) who both represent the software producers have recently counted that last year 40 % of new business software applications were pirated. Revenue losses to the industry were estimated to 11 billion dollars.

In Internet this piratism is easy to carry out. The bad countries in Internet piratism are at the moment Sweden and Finland. I guess that this is due to the popularity of Internet in those countries because other software piratism is one of the lowest in those countries compared to the others. This shows, however, that as Internet becomes more popular, it will worsen piratism problems.

BSA has started to inform the Internet providers if they find someone in there servers to have infringed the copyright. Those home pages have been shut and they have been sealed with BSA-seal that warns all people of software piratism and tells that the page have been shut because of illegal copying. In North America there were 63 such sites last year. This practise will be introduced to other parts of the world, too.

Concluding words

This is a short introduction to Internet law. I have tried to give an overview over the subject. I have purposely omitted special cases of the area and I recommend you to study the subject more thoroughly and also read your local legislation.

For teachers who teach Internet I recommend that of your lectures consists partly of Internet law.

It is important to understand that the other side of the duties are the rights. Be creative, do your own works. If you want to use other material, either ask a permission for that or pay the royalties. This is fair.